Neville C. Johnston

The court issued an amendment to a previous costs endorsement to correct an omission.

The original endorsement failed to include HST on the awarded fees of $55,500.00.

The endorsement was amended to add $7,215.00 for HST on fees, bringing the total costs award to $64,729.66.

The appellants appealed the dismissal of their claim for a declaration of a right of way over the respondents' property.

They argued that the original grant met all four requirements to establish an easement by grant and that the trial judge erred in considering post-grant evidence and in finding the grant ambiguous.

The Court of Appeal upheld the trial judge's decision, finding that the grant was ambiguous and lacked sufficient metes and bounds descriptions.

The trial judge correctly determined that the plaintiffs failed to establish the nature and location of the servient tenement over which the right of way was granted as it existed at the date of the grant, which was fatal to the claim.

The defendants, having succeeded in the underlying land dispute concerning a right-of-way, sought substantial indemnity costs of $85,578.50.

The plaintiffs agreed to pay costs but disputed the quantum, proposing $51,157.13.

The court considered factors under the Courts of Justice Act and Rule 57.01(1) of the Rules of Civil Procedure, including complexity, importance, counsel experience, and hours spent.

Despite the defendants' counsel's extensive hours, the court found a 333% disparity in trial preparation hours between the parties unreasonable.

The court reduced the defendants' claimed hours by 33%, awarding $57,514.66 inclusive of disbursements and HST.

The Plaintiffs sought an express right-of-way for vehicular access over a portion of the Defendants' land (Part 6) to Upper Beverly Lake.

The Defendants denied this, asserting the right was a personal license for pedestrian access only, and brought a counterclaim.

The court examined the original grant's intention and surrounding circumstances, finding that Part 6 was historically designated for cattle use, was often muddy and inaccessible by vehicle, and that the grantor took steps to deter vehicular traffic.

The court concluded that the claimed easement for vehicular access did not accommodate the dominant tenement and was not capable of forming the subject-matter of a grant.

The Plaintiffs' claim was dismissed, and the Defendants' counterclaim was granted.

By consent, the Plaintiffs were granted a personal, non-transferable license for foot access and limited parking.

The defendant, The Standard Insurance Brokers Ltd. (Standard), brought a motion for summary judgment to dismiss the plaintiffs' (Blairs') claim.

The Blairs had previously been granted leave to amend their Statement of Claim to include negligent misrepresentation and punitive damages.

The court dismissed Standard's summary judgment motion, finding that there were genuine issues requiring a trial, including significant credibility issues between the Blairs and a co-defendant, and the need for further expert evidence.

The court emphasized that a fair and just adjudication could not be achieved through summary judgment in this case, and awarded costs to the Blairs on a substantial indemnity basis.

The plaintiffs (Blairs) brought a motion for leave to amend their Statement of Claim to include claims of negligent misrepresentation and bad faith with resultant punitive damages against The Standard Insurance Brokers Ltd. (Standard).

Standard cross-motioned for summary judgment.

The court focused on the motion to amend, considering whether the amendments constituted new causes of action, if they were statute-barred under the Limitations Act, and if they would cause non-compensable prejudice.

The court found that it was not plain and obvious that the claims for negligent misrepresentation and bad faith could not succeed at trial, and that the discoverability principle applied, meaning the limitation period did not begin until the expert report was received.

The court granted leave to amend the Statement of Claim.

Following an application for directions regarding a holograph codicil, the estate trustee sought full indemnity costs of $72,441.81 from the unsuccessful respondent beneficiary.

The respondent argued costs should be paid by the estate due to ambiguities caused by the testator.

The court applied the modern approach to estate litigation costs, finding the respondent's position unreasonable given her legal background.

However, the court reduced the claimed amount, ordering the respondent to pay $20,000 and the estate to pay $15,000 to the estate trustee.

Following an arbitration award of $120,521.66 in favour of the plaintiff in a construction lien action, the parties sought a determination on costs.

The plaintiff claimed substantial indemnity costs from the date of its $125,000 offer to settle.

The court held that to determine if the offer was beaten, prejudgment interest up to the date of the offer must be added to the principal award.

As this total ($121,317.89) was less than the offer, Rule 49.10(1) was not engaged.

The court awarded the plaintiff partial indemnity costs fixed at $50,000 for fees and $4,724.93 for disbursements.

The Estate Trustee sought court directions regarding the validity of three potential holograph codicils and the disposition of life insurance proceeds from the estate of Franklin Walter Briggs.

The court found two documents (July 29, 2013, and August 8, 2014) to be valid holograph codicils, but a third document, the "Notes Document," was deemed a planning document and not a valid testamentary instrument due to lack of signature, date, and formal language.

The court also ruled that the July 29, 2013 document, despite being a valid codicil, did not constitute a valid declaration under the Insurance Act to change the beneficiary of life insurance policies, as it failed to specifically identify the insurance contract or fund.

Consequently, the life insurance proceeds belonged to the estate, not a specific beneficiary.

The plaintiffs, tenants of a commercial property including a motel and restaurant/bar, brought a motion for an interlocutory injunction requiring the landlord defendants to repair the premises, an abatement of rent, and relief from forfeiture.

The plaintiffs alleged the defendants breached the lease by failing to provide the restaurant/bar in an operational state and failing to repair major structural systems.

The court found the plaintiffs suffered irreparable harm due to ongoing repair expenses and loss of income.

The court granted the injunction, ordered a 50% abatement of rent until repairs are completed, and granted relief from forfeiture, noting the plaintiffs' substantial investment in the property.