Sarah J. Turney

In an appeal concerning adverse possession of municipal parkland, the appellants sought possessory title to a fenced portion of backyard land registered to the municipality.

The majority held that recognizing a common law immunity for municipal parkland would conflict with Ontario’s statutory scheme under the Real Property Limitations Act and related legislation, which preserves matured possessory claims unless a statutory exception applies.

Because the statutory test for adverse possession was satisfied and no applicable statutory immunity barred the claim, the municipality’s title had been extinguished.

The appeal was allowed and the appellants were entitled to fee simple title to the disputed land.

The appellants sought title to a portion of municipal parkland that their predecessors had fenced off and exclusively used since at least 1971.

The application judge dismissed the claim, finding that municipal parkland is immune to adverse possession.

The Court of Appeal dismissed the appeal, holding that while there is no absolute common law immunity, municipal parkland is presumptively unavailable for adverse possession under the 'public benefit' test unless the municipality has waived its rights or acquiesced to the possession.

The dissenting judge would have allowed the appeal, arguing that the Real Property Limitations Act provides a complete code that does not exempt municipal parkland.

Following the release of the appeal judgment, the parties requested on consent to amend the partial indemnity costs of the applications below.

The Court of Appeal allowed the amendment, reducing the costs awarded to the appellants for the proceedings below from $93,000 to $55,000, inclusive of disbursements and taxes.

This appeal concerned a property dispute between neighbours over a two-foot wide strip of land.

The application judge had declared a prescriptive easement over a driveway portion and ownership by adverse possession over a backyard portion in favour of the respondents (original applicants).

The Court of Appeal found that the application judge made palpable and overriding errors.

Specifically, the court determined that the alleged prescriptive easement over the driveway was not "reasonably necessary" for the better enjoyment of the dominant tenement, but rather a personal convenience.

For the adverse possession claim, the court found the application judge misapprehended evidence regarding the true owner's exclusion from the backyard portion.

The appeal was allowed, setting aside the lower court's judgment and declaring the appellants' title unencumbered.

The court clarified the terms of an easement previously granted to Vivekanandan over Terzian's property.

The dispute centered on the precise description of the easement's southern boundary, specifically how it interacts with a "grassy area" at the northern end of the island.

The court adopted Vivekanandan's interpretation, ruling that the easement's southern boundary follows the diagonal line of the grassy island, rather than a squared-off line proposed by Terzian, to ensure the easement includes all intended paved areas.

Following a judgment where Vivekanandan successfully established an easement and adverse possession over a disputed area, they sought costs on a substantial indemnity basis under Rule 49 of the Rules of Civil Procedure.

The court declined to award substantial indemnity, noting that Rule 49.10 is more appropriately applied to monetary judgments and that Vivekanandan was not entirely successful on all aspects of their claim.

The court awarded costs on a partial indemnity basis, finding the requested amount of $93,107.99 (including fees, HST, and disbursements) to be reasonable given the complexity and effort involved in the property title litigation, consistent with the principle of indemnity and reasonable expectations.

The parties are neighbours involved in a property boundary dispute over a strip of land between their houses.

The disputed land consists of a Driveway Area and a Backyard Area, both of which are registered to the applicant's property but have been used by the respondents and their predecessors in title.

The court found that the respondents' predecessors had established a prescriptive easement over the Driveway Area through 20 years of continuous, open, and uninterrupted use prior to the property's conversion to the Land Titles system.

The court also found that the respondents acquired title to the Backyard Area through adverse possession, as their predecessors had exclusively enclosed and occupied the area for the requisite statutory period.

The respondents' counter-application was granted.

The Court of Appeal for Ontario issued a costs endorsement following its dismissal of a motion by a law firm seeking a charging order or lien against damages and costs awarded to its client.

The law firm sought no costs or alternatively $2,500, arguing the issue was novel and of public importance.

The respondent sought substantial indemnity costs of $25,214.42, arguing the motion lacked merit and was an attempt to burden him with additional costs.

The court awarded costs to the respondent on a partial indemnity basis, rejecting the law firm's arguments and refusing to permit set-off against legal fees owed by the respondent.

The law firm sought reconsideration of the court's decision on its motion for a charging order or solicitor's lien.

The court denied the request for reconsideration, noting that the law firm had already addressed the merits of obtaining a charging order in its written submissions and that the test for a charging order and solicitor's lien is the same.

A law firm sought a charging order or solicitor's lien on funds awarded to its client in a successful civil action.

The client had recovered $390,000 in damages and $550,000 in costs at trial, with an additional $50,000 in costs awarded on appeal.

The law firm claimed $360,836.88 in unpaid fees and sought to secure this amount through either a charging order under the Solicitors Act or a lien under the court's inherent jurisdiction.

The client contested the amount owed and initiated an assessment process.

The Court of Appeal dismissed the motion, finding that while it had jurisdiction to grant such relief, the law firm failed to establish that the client was unable or unwilling to pay.

The respondents, GMD Canavas Holdings Inc. and Decora Building Restoration Limited, moved to enforce an Offer to Settle dated May 3, 2016, which the applicant, 1435970 Ontario Inc., had accepted.

The applicant contended its acceptance was void due to a misunderstanding regarding RDI Construction Company Ltd. vacating its premises.

The court found that a miscommunication between the applicant and its counsel did not invalidate the acceptance, especially since the applicant itself was aware RDI had not vacated.

Furthermore, the Offer's terms did not premise on RDI vacating.

The motion to enforce the Offer to Settle was granted, and the applicant was ordered to pay costs to the respondents.

The parties appeared at a case conference to settle a draft Order arising from previous Reasons for Decision.

The plaintiff advised the court of its intention to discontinue the proceeding and make a voluntary assignment into bankruptcy.

The draft Order, including costs, was settled and signed by the court.

In a class action arising from a train derailment where the defendants admitted liability, the parties could not agree on a litigation plan for the individual issues phase to determine damages.

The plaintiffs proposed a plan involving a test case for mental distress damages, while the defendants proposed a more cumbersome procedure with extensive discovery rights.

The court rejected both plans as inadequate and contrary to the goals of access to justice and judicial economy.

The court proposed a three-tier procedure based on the quantum of damages claimed and directed the parties to negotiate a plan based on this proposal.

In a class action arising from a train derailment where the defendants admitted liability, the parties could not agree on a litigation plan for the individual issues phase to determine damages.

The plaintiffs proposed a plan involving a test case for mental distress damages, while the defendants proposed a more cumbersome procedure.

The court rejected both plans as inadequate for achieving access to justice and judicial economy.

The court proposed an alternative three-tiered claims procedure based on the amount claimed and directed the parties to negotiate a final plan based on this proposal.

The tenant brought an urgent motion seeking relief from forfeiture after the landlord terminated a commercial lease and re-entered the premises due to substantial rent arrears.

The tenant had ceased paying rent for several months and significant arrears had accumulated, though the tenant alleged the premises had serious deficiencies and that the parties had been engaged in ongoing lease renegotiations.

The court applied the equitable principles governing relief from forfeiture under the Commercial Tenancies Act and Courts of Justice Act, considering the tenant’s conduct, the gravity of the breach, and the surrounding circumstances.

Although the tenant’s failure to pay rent weighed against relief, the court granted interim relief from forfeiture on strict terms requiring substantial payment of rent arrears and ongoing compliance with the lease.

The matter was adjourned for further determination on whether the relief should continue on an interlocutory basis pending trial.

This was a costs decision arising from an individual issues motion in a class proceeding after judgment on common issues had been granted.

The representative plaintiffs sought recovery of counsel fees and substantial disbursements incurred through the common issues phase, including occupational therapy and psychological assessment reports for class members.

The court held that Rule 49 offers were not to affect costs at this stage, excluded certain unrecoverable disbursements, and treated only part of the medical assessment expenses as attributable to successfully advancing the action to the individual issues phase.

Costs of $214,624.41 all-inclusive were awarded, with the balance of certain disbursements reserved for the individual issues phase.

The appellant appealed the dismissal of its application for a prescriptive easement over the respondents' parking spaces.

The Court of Appeal upheld the application judge's finding that the appellant's affidavit evidence failed to establish 20 years of continuous use prior to the property's transfer to the land titles system in 2002, as it did not comply with Rule 39.01(5).

Furthermore, the Court agreed that the use of the parking spaces was a matter of mutual convenience rather than 'as of right'.

The appeal was dismissed with costs awarded to the respondents.

Following the dismissal of an application seeking interpretation of a commercial lease concerning the calculation of property taxes, the successful respondent sought partial indemnity costs exceeding $75,000.

The applicant argued the amount was disproportionate to the approximately $160,000 in dispute and the relatively limited complexity of the proceeding.

The court applied the principles governing reasonable expectations of the losing party under the Boucher line of authorities and assessed the reasonableness of the time spent by counsel and the claimed disbursements.

Finding the claimed hours and overall expenditures excessive for an application hearing lasting less than a day, the court reduced the recoverable costs.

The landlord sought a declaration that the tenant’s share of property taxes under a commercial lease should be calculated on a proportionate share basis following the elimination of separate tenant assessments under amendments to the Assessment Act.

The tenant argued that the lease required the parties to determine what a separate assessment would have been using official information from MPAC valuation records.

The court interpreted the lease according to the parties’ intentions at the time of contracting and held that MPAC valuation records constituted sufficient official information to estimate a separate assessment.

Because the lease contemplated this scenario, the tenant’s taxes were properly calculated using the assessed value approach rather than proportionate share.

The landlord’s application for a declaration was dismissed.

The moving party sought an extension of time to file materials in support of a motion for leave to appeal an Ontario Municipal Board decision until 30 days after the Board disposed of the costs issue.

The respondent developer opposed the extension, arguing the leave motion should proceed without delay.

The court ordered the moving party to file its leave materials by March 30, 2012, but deferred setting a date for the leave motion hearing until the Board fixed its dates for the outstanding issues, balancing the need to avoid undue delay with the efficient use of judicial resources.