Timothy Fletcher Hudek

The defendant brokerage firm brought a motion to strike a supplementary affidavit filed by one of the plaintiffs in response to a pending summary judgment motion.

The defendant argued the affidavit contained impermissible expert opinion evidence, hearsay, and irrelevant material, and was not compliant with Rule 53 of the Rules of Civil Procedure.

The court held that the affidavit was not expert evidence but rather the plaintiff’s explanation of how he calculated alleged investment losses based on publicly available information and personal assumptions.

The court found the evidence could potentially affect the outcome of the proceeding and that questions regarding admissibility and weight were better left to the judge hearing the summary judgment motion.

The motion to strike was dismissed.

The plaintiff corporation brought a motion to amend its statement of claim against the defendant bank to allege that a specific individual was not an authorized signing officer when she conducted fraudulent transactions.

The defendant opposed the motion, arguing it amounted to the withdrawal of an admission, asserted a new cause of action after the limitation period expired, and constituted an abuse of process.

The Master granted the motion, finding the original pleading was not an admission but a background fact, there was a triable issue regarding the discoverability of the new cause of action, and there was no abuse of process.

The defendant moved to vacate Certificates of Pending Litigation obtained by the plaintiff on an ex parte basis over two properties.

The court held that a party seeking ex parte relief must make full and frank disclosure of all material facts.

The plaintiff failed to disclose a prior divorce settlement in which he had disclaimed any trust interest in the properties and misrepresented the contents of a lawyer’s letter regarding potential sale of the land.

These omissions and misrepresentations were material and could have influenced the original ex parte decision.

The court therefore set aside the order permitting the certificates, but required that 50% of the gross sale proceeds of the properties be paid into court as security pending resolution of the ownership dispute.

The appellant surveyors prepared a reference plan that incorrectly portrayed a right of way as a straight line, failing to show a curve that circumvented a rock outcrop.

The reference plan was deposited on title.

A dispute arose between the neighbouring property owners over the use of the road.

The surveyors brought a motion to rectify the reference plan under section 160 of the Land Titles Act.

The motion judge dismissed the motion, holding that the registered title was indefeasible.

The Court of Appeal allowed the appeal, finding that a reference plan does not independently create an interest in land and that the court has jurisdiction to rectify the boundaries of the right of way.