Michael E. Fitton

The appellant appealed a decision finding that disputed lands had been dedicated and accepted for public uses as a park.

The Court of Appeal found no palpable and overriding error in the application judge's factual findings regarding public use.

Furthermore, the Court held that the respondent Township had established title to the lands through adverse possession, as it had erected a fence in 1990 with the intention of excluding the appellant and had maintained actual possession since that time.

The appeal was dismissed.

The appellants challenged a declaration concerning the expiry of a registered right of first refusal over real property.

The Court of Appeal held that a right of first refusal is initially a personal contractual right, but converts into an equitable option when the owner receives an acceptable offer.

Once the appellants learned of the 1988 sale made in breach of that right, they were required to pursue specific performance promptly if they wished to preserve their equitable interest.

Their ten-year inaction, coupled with evidence of waiver, extinguished any equitable interest before the later purchaser acquired rights under the 1998 agreement of purchase and sale.

The appeal was dismissed, with no costs.