Amber Small

This is a costs endorsement from the Court of Appeal for Ontario.

The appellant, Beth Ann Markowski, was ordered to pay the respondents, Dwayne David Verhey and Kathleen Anne Verhey, costs fixed at $15,000, inclusive of HST and disbursements, following an appeal from a Superior Court of Justice order.

The appellant owns a cottage lot with a right-of-way over the respondents' beach lot for 'all the usual purposes'.

The appellant sought a declaration that this included the right to launch and retrieve watercraft using a motor vehicle.

The application judge held that the right-of-way was limited to pedestrian access and the portaging of small craft, based on historical use and the intention of the original grantor.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the application judge's conclusion that the easement did not permit motorized vehicles to cross the beach.

The insurer appealed an application judge's decision declaring it had a duty to defend the insureds (a mother and her son) in two actions arising from a motor vehicle accident.

The son, a G2 driver, had a blood alcohol concentration greater than zero at the time of the accident, prima facie contravening s. 6(1) of O. Reg. 340/94.

The insurer denied coverage based on a statutory condition prohibiting operation by an unauthorized driver.

The Court of Appeal dismissed the appeal, upholding the application judge's findings that s. 6(1) is a strict liability offence, that the son had a reasonable belief his blood alcohol was zero after sleeping for several hours, and that the mother did not know or ought to have known her son was unauthorized to drive when she permitted him to use her vehicle.