Michael W. Carlson

The appellant appealed the dismissal of his claims for adverse possession or a prescriptive easement over parts of the respondents' neighbouring cottage property, which he had historically used to access Lake Erie.

The Court of Appeal upheld the trial judge's findings that the appellant's use of the lands was with tacit permission as an act of good neighbourliness, rather than acquiescence, and that the easement was not reasonably necessary given alternative access routes.

The court also affirmed the dismissal of the adverse possession claim, as the appellant failed to establish an intention to exclude the true owners.

The appeal was dismissed with costs.

The moving party (Murphy Trust) sought disclosure of documents from the plaintiff and its affiliated corporation regarding water haulage to a construction site.

The moving party alleged the plaintiff was seeking an easement for improper purposes and thus came to the court with 'dirty hands'.

The court dismissed the motion, finding the moving party's claim that water was taken from the subject properties for a construction project was mere speculation and did not warrant the requested production.

The plaintiffs claimed trespass and unjust enrichment over an historic laneway due to the defendants' encroachments (loading ramp, sign box, HVAC system).

The defendants challenged the plaintiffs' title, arguing it was flawed or the laneway was public.

The court found the plaintiffs had sufficient possessory title, rejecting the defendants' arguments based on *jus tertii*, defective transfers, and public lane status.

The court found the defendants liable for trespass and unjustly enriched, awarding damages based on a reconstructed encroachment fee.

A mandatory order for removal of encroachments was deemed premature, leaving open options for modification or renewed agreement.

The defendant David Ryan brought a motion for a status hearing seeking dismissal of the action due to delay.

The court allowed the action to continue but noted the plaintiffs' significant indulgence and lack of diligence in advancing the claim.

Despite the plaintiffs meeting the onus to explain the delay, the court found the defendant's opposition to an extension of time was not unreasonable.

Consequently, the court ordered no costs for the motion.

The defendant brought a motion for a status hearing under Rule 48.14(5) of the Rules of Civil Procedure, seeking to dismiss the plaintiffs' lawyer negligence action for delay.

The plaintiffs opposed, arguing a prior order scheduling a summary judgment motion precluded dismissal.

The Master found the prior order did not prevent the status hearing but concluded the plaintiffs provided an acceptable explanation for the delay and rebutted the presumption of prejudice.

The motion to dismiss was denied, and the action was permitted to continue.

The applicants challenged the authority of the respondent corporation's de facto Chief Operating Officer to retain legal counsel to represent the corporation in an oppression and receivership application.

The court found that although the COO was not formally appointed in accordance with the shareholders agreement, she was informally appointed by the late controlling director in good faith.

The court held that as the de facto COO, she had the authority to appoint counsel to represent the corporation's interests.

The applicants sought orders regarding an easement for pedestrian passage over the respondents' property, including the permanent removal or opening of a gate, prevention of blocking the easement, prevention of moving personal property from a public beach, and clarification of guest rights.

The court largely dismissed the application, finding that the gate did not substantially interfere with the easement and that the applicants had no legal right to store chattels on the public beach.

However, the court granted a varied order preventing the respondents from blocking the easement for the applicants and specific categories of guests, and clarified the scope of the easement accordingly.

Costs were presumed in favour of the respondents.

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 applicant brought a motion for contempt against the respondent for alleged non-compliance with consent orders regarding the sale of condominium units and the deposit of revenues.

The court dismissed the contempt motion, finding the test for contempt was not met beyond a reasonable doubt, particularly as the underlying orders were moot due to the sale of units.

However, the court awarded the applicant costs for the overall application, distinguishing between periods of litigation and finding the respondent's delays after the initial orders unjustified.

The defendants (vendors) moved for summary judgment to dismiss the plaintiff's (purchaser's) claim for the return of a $150,000 deposit and to grant their counterclaim for damages of $900,000 following an abortive real estate transaction.

The court dismissed the motion, finding that the evidentiary record was inadequate and that there were numerous genuine issues requiring a trial, including alleged physical defects in the property and whether an oral agreement to reduce the purchase price was reached.

However, the court exercised its jurisdiction under Rule 20.05 to specify certain material facts not in dispute, such as the original purchase price being $2,250,000.

Hercules Moulded Products Inc. appealed a summary judgment dismissing its claims against Stewart Title Guaranty Company for indemnification under a Commercial Lender Endorsement title insurance policy.

The claims arose from problems with two adjacent properties in Windsor, Ontario that Hercules held as security for a mortgage.

The issues included: (1) the cost of filling an excavation ordered by the City of Windsor, added to the tax bill; (2) development agreements registered on title; and (3) an alleged encroachment.

The Court of Appeal affirmed the dismissal on two primary grounds: first, the excavation matter was excluded from coverage under the policy's non-disclosure provision as it was known to Hercules but not disclosed to Stewart before the policy date; and second, the development agreements and encroachment caused no actual loss or damage as required by the policy.

Two purchasers of condominium units in Trump Tower sought to rescind their agreements of purchase and sale and recover their deposits based on material changes to a hotel unit maintenance agreement disclosed years after the initial purchase agreements.

The respondent developer argued that the purchasers' notices of rescission did not comply with statutory requirements because they used the word "terminate" rather than "rescind" and did not explicitly reference the relevant statutory provision.

The Court of Appeal upheld the application judge's decision, holding that the Condominium Act, as consumer protection legislation, must be interpreted generously in favour of consumers.

The court found that the notices sufficiently conveyed the purchasers' intention to undo the transactions based on material changes, and that the ten-year limitation period under the Real Property Limitations Act applied to claims for return of deposits.

The plaintiff, Hercules Moulded Products Inc., and the defendant, Stewart Title Guaranty Company, brought cross-motions for summary judgment regarding coverage under a commercial title insurance policy.

Hercules sought to recover losses related to a municipal by-law violation (dirty yard), development agreements, and an alleged building encroachment on two properties.

Stewart Title sought summary dismissal, arguing no coverage or applicable exclusions.

The court found no coverage for the by-law violation due to the work order being issued post-policy and the plaintiff's failure to disclose known issues.

It also found no actual loss demonstrated from the development agreements or the alleged encroachment, and that exclusions applied due to the plaintiff's knowledge and failure to provide timely notice.

The plaintiff's motion was dismissed, and Stewart Title's motion for summary dismissal was granted.

Following a successful application by the respondents for a declaration that a private driveway was not an access road under the Road Access Act, the respondents sought substantial indemnity costs.

The applicants argued that costs should be on a partial indemnity scale and reduced by the amount the respondents received from their title insurer.

The court awarded partial indemnity costs and held that the private insurance exception did not apply because the applicants were not tortfeasors.

The costs award was reduced by the title insurance payout to prevent double recovery, as costs are for indemnity only.

Neighbouring landowners disputed whether a private roadway crossing the respondents’ property constituted an access road under the Road Access Act and whether the moving parties could lawfully close it.

The responding parties asserted that the road had served as their only vehicular access route for decades and sought a declaration that it was an access road and an injunction preventing interference.

The court found the roadway met the statutory definition of an access road but held that the responding parties had an alternative motor vehicle access route through another private lane connecting to a municipal road.

Because alternate access existed and the respondents had no legal right of way over the applicants’ property, the statutory conditions for closing the driveway were satisfied.

The court exercised its discretion to grant a closing order and dismissed the counter‑application.

Neighbouring property owners brought an application seeking an injunction preventing interference with their access to a laneway used as the sole vehicular access to several residential properties.

The respondents owned the servient property containing the laneway and argued that any historical right-of-way had been extinguished under the 40‑year search rule in the Registry Act because the servient easement was absent from title.

The court found the applicants openly used the laneway and relied on it for access, and held that proprietary estoppel applied because the respondents had allowed such use and later attempted to deny it in an unconscionable manner.

The court also interpreted s. 113(5)(a)(iv) of the Registry Act as preserving openly used unregistered easements, including rights-of-way that were historically registered but later omitted from title.

An injunction was granted prohibiting the respondents from interfering with the applicants’ use of the laneway.