Millstone Consulting Services Inc. v. Cleary
Although the trial judge misstated the period to which Lost Modern Grant applied, the sole evidence relied on (McGee's testimony and adopted statutory declaration) was insufficient and the judge's adverse credibility findings were not shown to produce a substantial wrong or miscarriage of justice; the outcome would...
Source-derived case information.
- Citation
- 2009 ONCA 755
- Parties
- Plaintiff (appellant); Defendant by Counterclaim (appellant): Millstone Consulting Services Inc.; Defendant (respondent); Plaintiff by Counterclaim (respondent): Paul David Cleary; Defendant (respondent); Plaintiff by Counterclaim (respondent): Francis Loyola Cleary; Defendant (respondent); Plaintiff by Counterclaim (respondent): John Michael Cleary; Defendant by Counterclaim: Paula Von Stedingk; Defendant by Counterclaim: Vicko Von Stedingk; Defendant by Counterclaim (appellant): Murray Edward McGee
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 2 November 2009
- Procedural Posture
- Civil Appeal Concerning Property/easement Claim / Court of Appeal Decision on Appeal From Superior Court of Justice
- Outcome
- Appeal dismissed
- Legal Topics
- Lost Modern Grant Doctrine, Easement by Prescription, Credibility and Weight of Evidence, Adverse Inference, Costs Assessment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Millstone Consulting Services Inc.
Plaintiff (appellant); Defendant by Counterclaim (appellant)
Paul David Cleary
Defendant (respondent); Plaintiff by Counterclaim (respondent)
Francis Loyola Cleary
Defendant (respondent); Plaintiff by Counterclaim (respondent)
John Michael Cleary
Defendant (respondent); Plaintiff by Counterclaim (respondent)
Paula Von Stedingk
Defendant by Counterclaim
Vicko Von Stedingk
Defendant by Counterclaim
Murray Edward McGee
Defendant by Counterclaim (appellant)
Procedural Posture
Civil Appeal Concerning Property/easement Claim / Court of Appeal Decision on Appeal From Superior Court of Justice
Legal Issues
- 1 Whether the evidence established an easement based on the doctrine of Lost Modern Grant
- 2 Whether the trial judge misapplied the legal principle concerning the period relevant to Lost Modern Grant
- 3 Whether the trial judge's errors amounted to a substantial wrong or miscarriage of justice warranting appellate intervention
Ratio Decidendi
Although the trial judge misstated the period to which Lost Modern Grant applied, the sole evidence relied on (McGee's testimony and adopted statutory declaration) was insufficient and the judge's adverse credibility findings were not shown to produce a substantial wrong or miscarriage of justice; the outcome would not have been different, so the appeal is dismissed and costs awarded.
Court Disposition
Appeal dismissed
Orders
- Appeal dismissed
- Costs to the respondent fixed at $10,000 inclusive of GST and disbursements
Full Case Text
Judgment text and source record
1 paragraphs
Millstone Consulting Services Inc. v. Cleary Collection Decisions of the Court of Appeal Date 2009-11-02 Neutral citation 2009 ONCA 755 Docket numbers C49288 Judges O’Connor, Dennis; Juriansz, Russell G.; Rouleau, Paul S. Subject Civil Decision Content CITATION: Millstone Consulting Services Inc. v. Cleary, 2009 ONCA 755 DATE: 20091102 DOCKET: C49288 COURT OF APPEAL FOR ONTARIO O’Connor A.C.J.O., Juriansz and Rouleau JJ.A. BETWEEN: Millstone Consulting Services Inc. Plaintiff (Appellant) and Paul David Cleary, Francis Loyola Cleary and John Michael Cleary Defendants (Respondents) AND BETWEEN: Paul David Cleary, Francis Loyola Cleary and John Michael Cleary Plaintiffs by Counterclaim (Respondents) and Millstone Consulting Services Inc., Paula Von Stedingk, Vicko Von Stedingk, and Murray Edward McGee Defendants by Counterclaim (Appellants) Ryder Gilliland, for the appellant, Millstone Consulting Services Inc. Gavin J. Tighe, for the respondents Heard and orally released: October 28, 2009 On appeal from the judgment of Justice R. Boyko of the Superior Court of Justice dated July 28, 2008. ENDORSEMENT [1] It is accepted that the trial judge erred in the principles of law she applied to the evidence. In particular, she misstated the period to which the doctrine of Lost Modern Grant applies as being limited to the 20-year period before the conversion of the property to the Land Titles system in 2001. The appellant asks this court to find that the evidence established the required 20 years of open and continuous use during an earlier period of time. [2] The appellant relies solely upon the testimony given by Murray McGee. As the trial judge pointed out, Mr. McGee was absent from the property for significant periods of time. The trial judge attached “very little weight” to a statutory declaration which Mr. McGee adopted in evidence. It is clear she did not regard him as a reliable witness. She also drew an adverse inference from the failure of the appellant to call the evidence of Mr. McGee’s sister who would have been in a much better position to testify about the use of land in issue. [3] We have considered the evidence of Mr. McGee on which the appellant relies. We find it is insufficient to establish, on its own, an easement based on the doctrine of Lost Modern Grant. Despite the errors made by the trial judge, we are not persuaded that there has been a substantial wrong or miscarriage of justice. On this record, the result would not have been different had she applied the proper principles. [4] The appeal is, therefore, dismissed. Costs to the respondent are fixed in the amount of $10,000, inclusive of GST and disbursements. “D. O’Connor A.C.J.O.” “R.G. Juriansz J.A.” “Paul Rouleau J.A.”