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The Court of Appeal dismissed the appeal as moot on the vesting order, upheld the compensation award, denied leave to appeal costs, and awarded no costs.
The Notice of Application was struck in its entirety because the appended Grounds violated fundamental pleading rules by pleading evidence, opinion, argument and immaterial facts, making allegations against non-parties, and thereby constituting scandalous pleadings and an abuse of process under Rule 88; the pleading also failed to provide full particulars for an asserted fraud claim under Rule 38.03(3); leave was granted to re-file a Rule-compliant Notice within three months and specified timelines for costs submissions were ordered.
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The Court of Appeal allowed an appeal from cancellation of a CPL, holding that a properly pleaded purchaser’s lien can ground an interest in land under s. 215 of the Land Title Act.
Claim dismissed because Claimants failed to demonstrate any legal right (express easement or court-declared prescriptive easement) to have their underground electrical service cross the Defendant's land, the Small Claims Court lacked jurisdiction to adjudicate a claim to obtain such an easement, and the evidence did not establish the Defendant or his contractor breached a legal standard of care by not contacting the utility under the circumstances.
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The court held that the strict, established prerequisites for a building scheme were not met and equity would not relax those requirements on these facts because Lot 2 had been sold before the 59‑foot covenant was created and the respondents failed to establish the necessary reciprocity and ascertainable scheme; therefore the restrictive covenant (59 feet) and the 2005 statutory declaration are of no force and effect and the parcel register must be amended.
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The mortgage, as executed and appraised, covered the entire single detached dwelling then identified as 44 Jackson Drive; the structure physically and functionally constitutes one building that encroaches on the adjoining lot; given the nature and permanence of the encroachment, the equities favor ordering transfer of the underlying land to CIBC under Land Registration Act s.76(3) to allow realization of the mortgage security; respondents’ damage claims failed as improper relitigation of the foreclosure and unsupported by evidence.
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The Agreement of July 19, 2019 was a binding contract entered into and relied upon by all parties contemporaneously with the August 5, 2019 Warranty Deeds; the parties' common intention and surrounding circumstances gave rise to an implied reciprocal and mutual easement in favour of the South Lot over the 25-foot foreshore strip. The February 2, 2021 Quit Claim vested sole legal title to Lisa but did not extinguish the easement; accordingly a declaration was warranted that title is held by the applicant subject to the implied easement created by the Agreement.
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The court found the O'Leary deed ambiguous and, applying the hierarchy of evidence, gave primacy to the physical location of the stream as it existed when the Crown conveyed in 1968; it preferred the Beaton survey over the MacKeen survey, found the stream was in its post-highway realignment position and that expropriation events prevented respondents from having a superior chain of title, and therefore granted the Applicants entitlement to a certificate of title under the Quieting Titles Act.
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The buyer made a timely written objection under s.10.2 by relying on the parcel register textual qualification which identified a tax deed within the six-year MTA challenge period; that objection was a valid one because it exposed the buyer to litigation risk absent title insurance or remediation; the seller was unable or unwilling to remove the objection prior to closing (no title insurance or remediation pursued), therefore the buyer was entitled to terminate and have the $10,000 deposit returned; seller’s claim for special damages is dismissed.
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Motion dismissed because, on the undisputed facts, the legal question involves the interaction of ss.73, 74 and 75 of the LRA and MacDonald’s claim (particularly the s.73 overriding interest argument) has a real chance of success; the court declines to exercise its discretion under Rule 13.04(6)(a) to decide the complex statutory interaction summarily and requires a full, holistic adjudication at trial.
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