Robert Wilfred Walter Dowhan

Following a successful application declaring a right of way over the respondent’s property and directing rectification of the land register, the court addressed costs after the parties failed to agree.

The applicants sought partial indemnity costs of $13,766.20.

The responding parties argued no costs should be awarded or, alternatively, that the amount claimed was excessive given the limited complexity of the matter.

Applying Rule 57.01 of the Rules of Civil Procedure and the principle that costs must be fair and reasonable for the unsuccessful party to pay, the court reduced the amount claimed due to excessive time entries and costs unrelated to the opposing respondents.

Partial indemnity costs were fixed at $9,000 inclusive of disbursements and HST.

The applicants sought declarations and rectification of land title records concerning a nine-foot right of way benefiting their property.

The court held the easement created by express grant in 1964 had not been extinguished, rejecting abandonment arguments tied to non-use and later title-description errors during conversion to land titles.

The court found the responding party had actual notice through registered descriptions and referenced plans, and was not protected as an innocent purchaser without notice.

The application was allowed, with orders directing the Land Registrar to amend the parcel registers to reflect the subsisting right of way and costs awarded to the applicants.

The plaintiffs and a co-defendant brought a motion for partial summary judgment seeking a declaration that losses arising from the collapse of a basement wall were covered under a title insurance policy.

The insurer argued the policy was void due to a material misrepresentation in the insurance application concerning the nature of the dwelling, which was described as a single-family residence despite being used as a multi-unit property.

The court held that there were genuine issues requiring a trial, including whether the misrepresentation was material to the risk and whether the insurer would have issued the same policy had it known the true facts.

The applicants also argued that the insurer had effectively accepted coverage through prior correspondence, but the court found that the evidence surrounding the letter raised factual issues unsuitable for summary judgment.

The motion for partial summary judgment was dismissed.