Executive Summary: Key Legal and Evidentiary Issues

• The dispute centers on the Applicants’ claim to enforce a purported easement since 1965 over the Respondent’s property, including the right to build a wharf on the Water Lot.

• The Respondent contests the existence, scope, and continued validity of the easement, asserting it has been abandoned or extinguished, or was limited to one household and one wharf.

• Allegations of trespass and resulting damage are made by the Respondent against the Applicants, including claims of deviation from the original right of way.

• Both parties sought to introduce additional evidence, amend pleadings, and add witnesses, increasing the complexity and anticipated length of the proceeding.

• The Respondent filed a Motion to convert the Application to an Action under Civil Procedure Rule 6, arguing an Action is preferable given the circumstances.

• The Court granted the Motion for Conversion, finding an Action significantly more appropriate due to the number of witnesses, material amendments, and the need for interpretation services, with costs to be determined if not agreed.

Background and facts of the case

Lingyan Ren, Yanjun Tu, Andrew Keith Dickinson, and Mareen Sarah Kraus (the Applicants) filed a Notice of Application in Court on November 20, 2023, seeking to rely on a purported easement since 1965 over Grafton Developments Inc.’s (the Respondent) property, leading to the Water Lot owned by the Respondent, where they sought to build a wharf. The Applicants sought enforcement of the easement with priority over all other interests.

The Respondent filed a Notice of Contest to the Application on January 12, 2024, asserting that if any easement exists from the 1965 Deed, it has been abandoned or extinguished, or was only intended for use by one household and the erection of one wharf by an owner of the present Respondent’s property. On the same date, the Respondent filed a Notice of Respondent’s Claim, alleging that the Applicants committed various acts of trespass, including repeatedly entering and transporting a sailboat across the Land Lot and Water Lot, and deviating from the original easement/right of way, causing damage and loss.

The Applicants filed a Notice of Contest to the Respondent’s claim on March 25, 2024, addressing the easement, abandonment, the Water Lot, subdivision of Lot A, the easement of 490 Franklyn Street, and the trespass allegations.

A Motion for Directions was held on March 25, 2024, setting four days for hearing on February 3, 4, 5, and 6, 2025, with a finish date of November 1, 2024. Deadlines for filing affidavits, objections, and completing discoveries were set throughout 2024. The Applicants’ witnesses included the four Applicants, two to four lay witnesses (including Katherine Gleason), and one expert witness/surveyor. The Respondent’s witnesses included Nassim Ghosn, Jason Ghosn, Kim Donna Blake (previous owner), up to two additional lay witnesses, and one surveyor as an expert witness. On December 3, 2024, the Applicants changed counsel to Ms. Micaela Sheppard.

By letter dated December 23, 2024, Respondent’s counsel informed the Court that the principal of the Respondent was severely injured in a fall, leading to an adjournment of the hearing and other steps in the litigation.

On February 3, 2025, a further Motion for Directions was heard, setting new deadlines for supplemental affidavits, expert reports, discoveries, and hearing briefs, with the hearing of the Application in Court scheduled for November 24–27, 2025.

On May 26, 2025, the Applicants filed a Notice of Motion seeking, among other things, permission to file an amended Notice of Application to include a claim for damages, file a Supplementary Affidavit, allow Mandarin translation services for Yanjun Tu, issue a Discovery Subpoena for Nassim Ghosn, schedule discovery examinations, and order costs from the Respondent for withdrawing from discoveries and the interpreter’s cancellation fee of $1,864.50.

On June 25, 2025, the Respondent filed a Motion for an Order converting the proceeding from an Application to an Action, relying on affidavits and the pleadings, Orders for Directions, and Memoranda of Directions. The Court decided to address the Motion for Conversion first.

Procedural rules and Court’s analysis

The Court reviewed Civil Procedure Rule 6, which allows a judge to order that a proceeding started as an application be converted to an action. The relevant rules and factors include the burden on the party seeking conversion, presumptions favoring applications or actions, and considerations such as the number of witnesses, the complexity of issues, the anticipated length of hearing, and the need for discovery and procedural flexibility.

The Court noted that the Application was filed on November 20, 2023, and four days had been set aside in November 2025. However, the number of proposed witnesses had increased significantly, the Applicants sought material amendments to their pleadings, and one Applicant requested the benefit of a Mandarin interpreter for the entire hearing. The Court found that the Application could not be heard in four days or less and could easily take eight days or more. The developments in the parties’ positions and the natural evolution of the litigation made an Action a significantly more appropriate procedural choice.

Outcome

Justice Rosinski granted the Respondent’s Motion for Conversion, ordering that the proceeding continue as an Action rather than an Application. The Court stated that if the parties are unable to agree on costs, written submissions would be accepted within 20 days after the release of the decision. No specific amount was awarded at this stage, as the decision was procedural and not a determination of the substantive issues.