Samantha Cain

The plaintiff brought a motion seeking leave to transfer the action to the Simplified Procedure under Rule 76, amend the Statement of Claim to reduce damages to $200,000, and strike the defendant's jury notice.

The motion was brought after the action had been set down for trial.

The court dismissed the motion, finding that the plaintiff failed to establish a substantial or unexpected change in circumstances to justify granting leave under Rule 48.04(1).

Furthermore, the court held that transferring the action would prejudice the defendant's substantive right to a jury trial, and the matter could not be fairly tried within the five-day limit of the Simplified Procedure.

Following partial judgment in an application concerning whether an easement of necessity existed to access landlocked property, the court addressed costs.

The court had previously determined that an easement of necessity existed over one parcel of land, leaving the precise route of the easement to be determined at trial if the parties could not agree.

The applicant achieved substantial success on the central issue of the existence of the easement.

However, one corporate respondent was entirely successful because no easement was granted over its property.

The court awarded partial indemnity costs to the applicant against certain respondents while also awarding costs to the successful corporate respondent against the applicant.

The applicant bank, holding a mortgage on a landlocked property, applied for a declaration of an easement of necessity over an adjoining property previously severed by the original owner.

The respondents argued that the landlocked property had water access, which should defeat the claim for an easement of necessity.

The court found that the water access was impractical due to a steep slope, satisfying the modern test of practical necessity.

The court declared an easement of necessity over the adjoining land and directed a trial to determine its precise location.

The defendant brought a motion seeking an order requiring the plaintiff to attend a further defence medical examination by a neurologist regarding Bell’s Palsy allegedly arising from a motor vehicle accident.

The plaintiff opposed the request, arguing that a second defence medical was unnecessary and would delay the scheduled pre-trial and trial.

The court considered the governing principles under Rule 33 and the Courts of Justice Act concerning further medical examinations and emphasized fairness and the need for each party to present appropriate expert evidence.

The court found that the defendant had no prior notice that Bell’s Palsy would be advanced as a causally related injury until a late-served medical report.

In the circumstances, fairness required permitting the defence an opportunity to assess the condition through a further examination.