Timothy Kinnaird

The applicant sought a declaration that the respondent's hydro conduit and protective metal sleeve (U-guard) encroached upon her right of way and an order for their removal.

The parties owned neighbouring properties with a mutual driveway easement.

The applicant claimed the U-guard prevented her from using the right of way to park her vehicle.

The court found that the hydro conduit and U-guard were necessary fixtures and did not constitute an encroachment, as the measured width of the right of way remained sufficient.

Even if it were an encroachment, it did not cause substantial interference with the reasonable use of the right of way.

The application was dismissed with costs to the respondent.

The defendant, Kyriacos Lakkotrypis, sought leave to amend his statement of defence and add a counterclaim, which the plaintiff opposed.

The proposed amendments included withdrawing admissions and advancing a counterclaim potentially outside the limitation period.

The court granted leave to amend the statement of defence, finding that most amendments did not constitute a withdrawal of admissions and that the few that did met the test for withdrawal, given the defendant's self-representation and lack of legal advice.

The court also allowed the counterclaim to proceed, determining that the limitation period issue was a triable question of fact not suitable for determination on a pleadings motion.

The motion to amend for the corporate defendants was adjourned.

The defendant moved to set aside a default judgment arising from a motor vehicle accident action in which the plaintiffs obtained judgment following an undefended trial.

The court considered whether service of the statement of claim was regular and proper under an order for substituted service and whether the defendant satisfied the three-part test under Rule 19.08 of the Rules of Civil Procedure.

The court found the plaintiffs complied with the substituted service order and the defendant failed to rebut the presumption of proper service.

The defendant also failed to provide a plausible explanation for the default or establish an arguable defence on the merits.

The motion to set aside the default judgment was dismissed.