William Fawcett

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.

The appellant employer appealed a trial judgment that dismissed its copyright claim under s. 13(3) of the Copyright Act over competing software secretly developed by a former employee.

The trial judge found the software was not created "in the course of employment" because the employee's actual responsibilities were limited to developing the employer's existing software, he was not directed to create new products, and the employer did not expend resources on the competing software's development.

The Court of Appeal upheld the decision, holding that the proper test under s. 13(3) focuses on the employee's actual assigned responsibilities, not the class of work the employer could have directed, and found no palpable and overriding error in the trial judge's factual findings.

The applicant maternal grandmother moved to amend a previous costs order of $85,000 against the respondent father, seeking to apportion 50 percent of the costs to child support.

The father had declared bankruptcy, and costs attributed to child support survive bankruptcy.

The court found it had jurisdiction to apportion costs retroactively.

However, because child support was resolved by consent before trial and was not a contested issue, the court declined to apportion 50 percent as requested.

Instead, considering the time spent and complexity, the court apportioned 10 percent of the costs to child support.

The plaintiff bank brought a motion for summary judgment regarding three commercial loans to the defendants.

The defendants argued that the loan restructuring agreement was unauthorized, signed under duress, and that potential insurance coverage precluded judgment.

The court rejected these defences, finding that the corporate defendant's director had ostensible authority, there was no illegitimate pressure amounting to duress, and no evidence of relevant insurance existed.

Summary judgment was granted in favour of the plaintiff for the full amount of the debts.