Sarah J. Turney

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 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.