Wendy J. Earle

An appeal concerning the validity and location of an access easement reserved by CN when it sold property to Remicorp in 2002.

CN later transferred its easement rights to Metrolinx in 2010.

The application judge found the easement had been abandoned by implied release and by operation of law, and ordered it relocated from Part 5 to Part 1 of the property.

The Court of Appeal allowed Metrolinx's appeal, finding the application judge erred in concluding abandonment occurred.

The court held that non-use alone is insufficient to establish abandonment without evidence of intention to abandon, and that the three registrations on title (2002, 2003, and 2010) evidenced the absence of such intention.

The court also found the application judge erred in relocating the easement, as this deprived Metrolinx of its contractual rights under the easement agreement without proper application of the legal test under the Conveyancing and Law of Property Act and Land Titles Act.

Metrolinx purchased a railway corridor from CN and requested that Enbridge relocate six gas pipelines crossing under the railway.

A dispute arose over who should bear the relocation costs.

The application judge found that under the historical agreements, Enbridge was responsible for the costs, and that CN had assigned these rights to Metrolinx.

The Court of Appeal dismissed Enbridge's appeal, holding that the application judge made no palpable and overriding error in interpreting the complex commercial agreements.

The landlord appealed a Divisional Court decision upholding a Landlord and Tenant Board order granting rent rebates to three tenants of cottage sites.

The landlord argued that applying the security of tenure provisions of the Residential Tenancies Act would extend the 20-year leases beyond 21 years, thereby contravening the subdivision control provisions of the Planning Act and rendering the leases void.

The Court of Appeal dismissed the appeal, finding it was bound by its previous decision in Matthews v. Algoma Timberlakes Corp., which held that the rent control provisions of the RTA applied to similar land leases.

The court declined to address the potential conflict between the RTA and the Planning Act as the landlord had not sought to overrule Matthews or requested a five-judge panel.

A public transit agency sought a declaration that a gas utility was contractually responsible for the cost of relocating pipelines where they crossed a rail corridor.

The pipelines had been installed pursuant to historical crossing agreements between the utility’s predecessor and a railway company, which were assigned to the transit agency when it purchased the rail corridor.

The utility argued the agreements did not apply where the pipelines ran along municipal road allowances and further contended the payment obligations were tied to federal railway regulation that did not apply to the transit agency.

The court held the crossing agreements were valid contractual obligations assigned to the transit agency and enforceable regardless of the regulatory status of the parties.

The utility was ordered to reimburse the transit agency for relocation costs exceeding $2.3 million plus interest.

The landlord appealed a Landlord and Tenant Board decision ordering it to repay illegally collected rent, arguing the leases were void under s. 50(3) of the Planning Act because the Residential Tenancies Act's automatic renewal provisions effectively created leases exceeding 21 years.

The tenants cross-appealed the Board's decision to limit their repayment to a one-year period.

The Divisional Court dismissed both appeals, finding that statutory renewal does not trigger the Planning Act's subdivision control provisions, estoppel cannot override the RTA's prohibition on illegal rent, and the Board reasonably applied the one-year limitation period for collecting illegal rent.

The appellant appealed a motion judge's decision regarding the existence of a commission agreement.

The Court of Appeal held that, in the absence of a written commission agreement, the interpretation of email correspondence to determine if an agreement existed was a matter for the motion judge.

Finding no palpable and overriding error, the appeal was dismissed with costs.

On competing summary judgment motions, the plaintiff sought commission recovery arising from a completed sale of commercial property, while the defendant sought dismissal of the action.

The court held the record established no enforceable agreement requiring the defendant vendor to pay commission on the closed transaction, particularly given contractual terms assigning commission responsibility to the purchaser.

The court further found that, even if such an agreement could be inferred, dual agency conflict principles and inadequate disclosure would bar recovery.

Applying Rule 20 to dispose of the matter without trial, the court granted the defendant's cross-motion and dismissed the action.

The appellant real estate brokerage claimed a commission from the respondents based on an exclusive listing agreement.

The respondents had entered into a lease agreement and an agreement of purchase and sale with a third party during the extended term of the listing agreement.

The appellant argued this amounted to a completed transaction or an option to purchase.

The Court of Appeal upheld the application judge's dismissal of the claim, finding that the transaction was a lease pending a future sale, and any ambiguity in the broker-drafted agreement must be resolved in favour of the respondents.

The Attorney General for Ontario brought an action against the Bear Island Foundation after cautions were registered against unceded land on behalf of the Temagami Band of Indians.

The Foundation counterclaimed for a declaration of quiet title based on aboriginal rights.

The Supreme Court of Canada found that while the Indians exercised sufficient occupation to establish an aboriginal right, this right was surrendered by subsequent arrangements adhering to the Robinson-Huron Treaty in exchange for annuities and a reserve.

Although the Crown breached its fiduciary obligations under this agreement, the aboriginal right was nonetheless extinguished.

The appeal was dismissed.

The respondent lawyer was sued for fraud by a bank.

He sought a defence from his liability insurer.

The insurer denied the obligation to defend, relying on an exclusion clause for fraudulent acts.

The bank later discontinued the action, and the respondent sued the insurer for his unrecovered defence costs.

The Supreme Court of Canada held that the duty to defend is governed by the pleadings.

Since the pleadings only alleged fraud, which was excluded from coverage, the insurer had no duty to defend.

The appeal by the insurer was allowed.