T. David Marshall

The appellants appealed the application judge's finding of a prescriptive easement over portions of their property in favour of the respondents' neighbouring property.

The appellants argued that the application judge misapprehended evidence regarding whether the gravel driveway remained unchanged over the relevant period and reversed the onus of proof.

The Court of Appeal found no error, holding that the application judge's reliance on aerial photographs and witness testimony was open to her and that she did not reverse the burden of proof on the prescriptive easement claim.

Appeal dismissed with costs of $10,000 to the respondents.

This is a costs decision following an application for property rights over portions of the respondents' property.

The applicants sought either ownership by adverse possession or a prescriptive easement over a driveway area and a gravel parking and lawn area.

The applicants were substantially successful, obtaining an easement of vehicular ingress and egress over the driveway area and an order requiring the respondents to remove obstructing items.

However, the applicants' claim for adverse possession of the parking and lawn area was dismissed.

The court awarded partial indemnity costs to the applicants in the amount of $36,000.00, all inclusive, finding that while the respondents' conduct was un-neighbourly and antagonistic, it did not rise to the level of reprehensible, scandalous or outrageous behaviour warranting substantial indemnity costs.

This is an appeal from a motion judge's decision dismissing a Strategic Lawsuit Against Public Participation (SLAPP) motion.

The appellants (defendants in the original action) sought to dismiss Canadian Tire's fraud action, arguing it arose from their expressions related to public interest (complaints about privacy violations and defective products).

The motion judge found the action did not arise from an expression and that the plaintiff's motive was irrelevant at the threshold stage of a SLAPP analysis under s. 137.1 of the Courts of Justice Act.

The Court of Appeal affirmed this, holding that a plaintiff's motive is not a relevant factor at the first stage of the SLAPP analysis, which is restricted to determining if the action arises from an expression related to a matter of public interest.

The appeal on costs was also dismissed, as the motion judge properly exercised discretion.

The Crown brought a motion to strike the plaintiff's class action statement of claim, which alleged de facto expropriation by the Crown due to delays at the Landlord and Tenant Board (LTB) and the Residential Tenancies Act.

The Crown argued the claim disclosed no reasonable cause of action, was a nullity due to the plaintiff's failure to provide statutory notice under the Crown Liability and Proceedings Act, and failed to specify the nature of relief claimed.

The court granted the motion, finding that the claim failed to plead the essential elements of de facto expropriation (no beneficial interest acquired by the Crown and no state action removing all reasonable uses of property).

The court also determined that the Crown could not be vicariously liable for the independent LTB's actions and that the proceeding was a nullity due to the plaintiff's admitted failure to provide the required 60-day notice to the Crown, rejecting the plaintiff's constitutional challenge to the notice requirement.

Leave to amend the statement of claim was denied as the defects were deemed incurable.

The applicant sought to extend an interlocutory motion and an interim injunction.

The respondent opposed, alleging the applicant failed to disclose material facts on the initial ex parte motion.

The court found the CaseLines file disorganized, with duplicate materials and non-compliant factums from both parties, making it unprepared for a hearing.

The motion was adjourned, and the existing injunctions were extended without prejudice.

The court issued strict directions for both parties to reorganize their filings, including deleting duplicates, filing compliant factums with proper citations and hyperlinks, preparing bookmarked compendiums, and filing a joint motion confirmation form, emphasizing adherence to the Rules of Civil Procedure and practice directions regarding hearing preparation and material submission.

The plaintiff real estate brokerage sought an interlocutory injunction to enforce restrictive covenants against several former agents who left to join a competing brokerage.

The court dismissed the motion, finding the spatial restrictions in the agreements ambiguous and the temporal limitations unreasonable.

The court also found the plaintiff did not come with clean hands, having previously breached its agreement with the lead defendant by bringing in a competing team without consultation.

The plaintiff failed to establish a strong prima facie case, irreparable harm, or that the balance of convenience favoured an injunction.