Sean Foran

Friday Harbour and its predecessors operated a marina on Lake Simcoe, which involved dredging a channel that submerged part of a right of way (Block C) and using the remaining 'Marina strip' exclusively since the 1960s.

The defendant, owner of Block C, argued the right of way was abandoned and counterclaimed for trespass.

The court found that Friday Harbour acquired ownership of the Marina strip by adverse possession, as its use was open, notorious, exclusive, and inconsistent with the titled owner's intended use.

However, the court also found that Friday Harbour had abandoned its right of way over the 'Western strip' of Block C, as it had relied on the impassability of the barrier between the strips to establish its adverse possession claim.

The defendants were successful on a motion for security for costs against the foreign corporate plaintiff and sought partial indemnity costs of approximately $18,000.

The plaintiff argued for a reduced amount of $10,000, claiming divided success and excessive time spent.

The court rejected the plaintiff's arguments, finding the defendants were entirely successful and the delegation of work between junior and senior counsel was appropriate for the complex motion.

Applying the factors under Rule 57.01, the court fixed the defendants' costs at $15,000 all-inclusive.

The plaintiff brought a motion for partial summary judgment to dismiss the defendants' counterclaims as an abuse of process, arguing they attempted to relitigate issues already decided in a New York judgment against one of the defendants.

The court granted the motion to dismiss the undefended counterclaim of the defendant subject to the New York judgment, as it was res judicata.

However, the court dismissed the motion regarding the counterclaim by the affiliated corporate defendant, finding that granting partial summary judgment risked inconsistent findings at trial, as the issues in the counterclaim were intertwined with the main action against that defendant.

The defendants brought a motion for security for costs against the non-resident plaintiff, CAMS Atlas, LLC.

The plaintiff had obtained a New York default judgment against one of the defendants, Water Exchange, Inc., which was recognized in Ontario.

The plaintiff argued it would be unjust to order security for costs, alleging a complex web of interrelationships among the defendants that should make them all liable for the judgment.

The court declined to pierce the corporate veil at this preliminary stage, finding it would be premature and wrong in law.

The plaintiff was ordered to post $75,000 as security for costs.