Megan Sanford

The applicant applied for an order requiring the respondents to remove encroachments from a three-foot strip of land owned by the applicant but subject to a right-of-way and restrictive covenants in favour of the respondents.

The applicant had successfully applied to the land registrar to delete the restrictive covenants pursuant to s. 119(9) of the Land Titles Act, which deems covenants without a fixed expiry date to expire after 40 years.

The respondents argued the original deed's use of the word 'forever' constituted a fixed period.

The Superior Court held that 'forever' indicated the covenants were perpetual and lacked a fixed expiry date, meaning they were caught by s. 119(9) and deemed expired 40 years after registration.

The application was allowed, and the respondents were ordered to remove the encroachments.

The plaintiff brought a motion under Rule 37.14 of the Rules of Civil Procedure to set aside a registrar’s order dismissing the action for delay under Rule 48.14.

The court considered the contextual test derived from appellate authorities, including the Reid factors: explanation for litigation delay, inadvertence, promptness of the motion, and prejudice to the defendant.

Although the motion was not brought promptly, the court found the delay in the litigation adequately explained, the failure to meet the set‑down deadline resulted from counsel’s inadvertence, and the defendant would suffer no significant prejudice if the action were revived.

Applying a contextual analysis favouring determination of matters on their merits, the court set aside the dismissal order and imposed a litigation timetable.

This was a standalone costs decision following the dismissal of a plaintiff’s summary judgment motion in an action over construction supply credit and an alleged personal guarantee.

The court held that the plaintiff unreasonably proceeded with the motion despite a direct denial of the signature and related facts, without obtaining handwriting evidence or other proof necessary to eliminate a genuine issue for trial.

Applying the costs principles under s. 131 of the Courts of Justice Act, Rule 57.01, and Rule 20.06, the court found substantial indemnity costs were justified.

The successful defendant was awarded fixed costs of $38,058.80, payable within thirty days, and the costs were not deferred to the trial judge.

The plaintiff sought summary judgment against Sebastian Danny Caputo on an alleged personal guarantee for materials supplied on credit to Elements Stone & Paving Inc. The court held there were genuine issues requiring trial, including whether Caputo signed or knew of the credit application and guarantee, and whether third-party fraud occurred.

Because key findings depended on credibility and multiple witnesses, summary judgment was refused and the motion was dismissed.