Michael Adams

This appeal and cross-appeal concerned a claim of infringement of riparian rights due to the construction of a boat house.

The trial judge found an infringement but held the action was time-barred.

The Court of Appeal dismissed both the appeal and cross-appeal.

While disagreeing with the trial judge's reasoning on the discoverability rule's application to s. 4 of the Real Property Limitations Act, the Court affirmed that the limitation period had expired.

It clarified that discoverability applies to s. 4, but the limitation period began when the boat house was constructed in 1969, as the infringement would have been obvious to the predecessors in title, and an extinguished cause of action cannot be revived by a transfer of property.

Following a trial where the defendants successfully defended a claim regarding riparian rights and water access, the court determined the appropriate quantum and scale of costs.

The defendants sought substantial indemnity costs based on a Rule 49 offer, while the plaintiffs argued for a lower amount.

The court found the Rule 49 offer was not a true compromise and awarded partial indemnity costs to the defendants, fixed at $16,000 plus disbursements and HST, noting the reasonable conduct of both parties.

The plaintiffs brought an action alleging that the defendants' boathouse, located in the water in front of the plaintiffs' shoreline, interfered with their riparian rights of access.

The court found that the boathouse did significantly restrict the plaintiffs' riparian rights.

However, because the boathouse had been in its location for over 50 years, the court held that the plaintiffs' claim was statute-barred and extinguished by the 10-year limitation period under sections 4 and 15 of the Real Property Limitations Act.

The court declined to read the discoverability principle into the RPLA.

The action was dismissed.

The appellants, as liquidators of a deceased spouse's estate, sought a declaration that the value of the family residence — held under a discretionary trust controlled by the surviving spouse — should be included in the partition of the family patrimony under art. 415 of the Civil Code of Québec.

The majority held that family residences held in trust are not in principle outside the scope of the family patrimony and that the 'rights which confer use' at art. 415 C.C.Q. are not limited to real rights.

Wide discretion should be accorded to the trier of fact in determining whether such rights exist, and the absence of an intention to evade family patrimony rules is irrelevant.

The trial judge's finding that the surviving spouse held rights which conferred use was supported by the evidence and disclosed no palpable and overriding error.

The dissent would have dismissed the appeal, finding that the trial judge erred by conflating the trustee's powers with rights and failing to consider the purpose of the trust and the beneficiaries' rights.

Appeal allowed (Côté and Karakatsanis JJ. dissenting).

Following the dismissal of a will challenge via summary judgment, the successful respondents sought costs on a substantial indemnity scale.

The court found that the applicants' allegations of undue influence were not evidence-based and their vitriolic approach unnecessarily prolonged the litigation.

The court awarded costs of $275,000 to the estate and $125,000 to the respondent personally, payable by the applicants, with one applicant's liability capped at 20%.

The moving parties (respondents in the main action) brought a motion for summary judgment to dismiss the responding parties' claims challenging the validity of the deceased's 2005 will and inter vivos transfers.

The responding parties alleged that the deceased was subjected to undue influence and fraud by her son, the primary beneficiary.

The court reviewed the extensive circumstantial evidence and found no genuine issue requiring a trial, noting that the deceased was an independent and strong-willed individual who made deliberate choices about her estate.

Summary judgment was granted dismissing the claims to set aside the 2005 will and the inter vivos transfers.