Mario C. Gravel

The Court of Appeal issued an endorsement amending paragraph 106 of its reasons released November 26, 2009.

The amendment provides that the respondents are awarded costs of the proceeding below in the amount of $25,000 inclusive of disbursements and GST.

The appellant appealed a decision dismissing his application for an injunction to prevent the respondents from keeping a locked gate on a private road, and granting the respondents' cross-application to close the road under the Road Access Act.

The application judge found the appellant had alternate road access via a trail on Crown land using four-wheel-drive vehicles.

The Court of Appeal dismissed the appeal, holding that the application judge's finding of alternate access was supported by evidence.

The Court further held that once alternate access was established, the appellant had no standing to oppose the road-closing application.

The respondents' cross-appeal regarding a condition in the road-closing order was also dismissed.

The appellant solicitor appealed a trial judgment that set aside a mortgage and Minutes of Settlement he obtained from his former client, awarded her punitive damages for abusive enforcement proceedings, and granted her substantial indemnity costs.

The Court of Appeal upheld the findings of abusive conduct and the invalidity of one mortgage obtained under duress.

However, the Court found the Minutes of Settlement were validly negotiated as part of a retainer.

Furthermore, the Court reduced the trial costs to a partial indemnity scale, noting that awarding both punitive damages and substantial indemnity costs was an unnecessary double punishment.

The appeal was allowed in part, reducing the net amount owing to the respondent.