Robert A. Leck

This is an appeal concerning a dispute over access to a landlocked property ("the triangle property").

The appellants claimed a right to use a private road ("the red track") across the respondents' property based on two grounds: a prescriptive easement acquired by lost modern grant before 1999, or as an access road under the Road Access Act.

The Court of Appeal upheld the trial judge's decision, dismissing both claims.

The court found no prescriptive easement was established due to insufficient continuous use and lack of agency, and that the red track was not a contemporary "access road" under the Act due to disuse and overgrowth.

The plaintiffs, Louis and Sandra Aileen Balogh, were successful in their action against R.C. Yantha Electric Ltd. and Rodney Yantha, establishing that their property was not subject to a prescriptive easement or right of way.

In this costs endorsement, the plaintiffs sought substantial indemnity costs due to the defendants' conduct, including trespassing and altering their land, and their failure to accept an earlier offer.

The court found the defendants' conduct to be "reprehensible, scandalous or outrageous" and awarded substantial indemnity costs.

While the plaintiffs' offer did not trigger Rule 49, the court considered the defendants' conduct and the principles of indemnity and reasonable expectation of costs.

The court adjusted the total fees and disbursements claimed by the plaintiffs, awarding $70,000 in fees plus HST, and $3,800.60 in disbursements plus HST, against both defendants.

The plaintiffs purchased a vacant recreational property in 2005.

In 2014, the defendants purchased an adjacent property and claimed a right of way over a track on the plaintiffs' land, tearing down the plaintiffs' fence to gain access.

The plaintiffs sued for trespass and an injunction, while the defendants counterclaimed for a declaration of a right of way or an access road under the Road Access Act.

The Superior Court of Justice found that the defendants failed to establish a prescriptive easement under the doctrine of lost modern grant, as there was insufficient evidence of 20 years of continuous, uninterrupted use prior to the land's conversion to the Land Titles system in 1999.

The court also held that the track did not qualify as an access road under the Road Access Act.

The court granted an injunction prohibiting the defendants from crossing the plaintiffs' property.

A municipality brought a motion seeking payment of surplus funds from a tax sale that had been paid into court after the former property owners failed to apply for the funds within one year under s. 380 of the Municipal Act, 2001.

The court found insufficient evidence that the treasurer had properly notified the former owners that surplus proceeds had been paid into court and that they had a right to claim them.

The municipality relied on affidavit evidence from a law clerk and documentation relating to earlier tax arrears notices, but did not demonstrate compliance with statutory notice requirements regarding the surplus.

The court held that fairness requires reasonable efforts to notify former owners and provide clear instructions on how to claim surplus funds.

The court ordered that registered notice and a prescribed form be sent to the former owners and set a process allowing them to claim the funds before any forfeiture to the municipality.