Wiltshire v. McGill

Decision 1: Anchor the defence on capacity, not the merits of the right of way

The natural defensive instinct, when a builder is sued over neighbour-property issues, is to engage on the substance — whether the gate is properly placed, whether the setback was respected, whether the right of way had been used in the prior twenty years. We did not. Engaging on those issues would have committed Mr. McGill to a multi-day trial of factual property questions that, for him personally, were beside the point.

Instead, we anchored on capacity. The lot at 286 Bedford Park Avenue was owned by 584104 Ontario Limited, not by Mr. McGill personally. The corporation, not Mr. McGill, was the entity that built and sold. Whatever rights or obligations the applicant might assert against the owner of 286 Bedford Park Avenue, those rights and obligations ran against the corporation that took title — and the corporation was not a party to the application. That single fact, if established on the record, was dispositive of the application as against Mr. McGill, regardless of the merits of the underlying right-of-way dispute.

Decision 2: Build the affidavit record to make the capacity point unchallengeable

In application proceedings, the evidentiary record is built on affidavits. Mr. McGill swore an affidavit deposing that he had no dealings with the applicant or her property other than in his capacity as an officer of 584104 Ontario Limited, and that neither the corporation nor he personally owned the lands adjoining the applicant’s property. The corporate ownership records and his role within the company were laid out plainly.

The applicant did not cross-examine on that affidavit. Pitt J. recorded the consequence at para. 6: “The respondents’ depositions, therefore, remain unchallenged and clearly cannot be regarded as so patently false as to be disregarded.” The capacity facts moved from being the respondent’s assertion to being part of the operative record on which the court was required to decide. With that record locked in, the application against Mr. McGill personally had no remaining factual foundation.

Decision 3: Resist the all-to-trial framing under Rule 38.10(b) for our client specifically

Pitt J.’s initial inclination, given the procedural difficulties on both sides, was to send the entire application to trial under Rule 38.10(b) of the Rules of Civil Procedure (para. 3): “Since initially I had real difficulty understanding either the claims made by the applicant or the relief she sought, and believed that there were material factual issues in dispute, I was inclined to order that the application proceed to trial pursuant to rule 38.10(b).”

A blanket trial-of-the-issue order would have kept Mr. McGill in the proceeding through full trial. We resisted that framing as it applied to him. The capacity question did not require trial: it was answered on the unchallenged affidavits already before the court. The remaining issues — whether the right of way had been “lost” before its purported revival by the Halls, and whether the Halls’ use of the right of way had infringed the applicant’s rights — were genuinely matters between the applicant and the Halls (the actual current owners of the adjoining lot). Pitt J. accepted that split. The application was dismissed against Mr. McGill (para. 10); the right-of-way merits proceeded to trial under Rule 38.10(b), but only as between the applicant and the Halls (para. 11).

1. Document corporate capacity in the contemporaneous record, not at the litigation stage. Where a numbered company holds title, contracts with trades, and pays the construction invoices, the contemporaneous documents (purchase agreements, mortgages, sale deeds, building permits) should consistently name the corporation. When a neighbour-dispute application later names the principal personally, the affidavit response is not a fresh assertion — it is a recital of facts already locked in by years of corporate paperwork. That is much harder to dislodge on cross-examination than a constructed-after-the-fact narrative.

2. In application proceedings, unchallenged affidavit evidence becomes part of the operative record. The Rules of Civil Procedure permit cross-examination on affidavits in applications. When the applicant does not cross-examine, the respondent’s sworn evidence is not automatically conclusive — but as Pitt J. put it (para. 6), it cannot be treated as so patently false that the court should disregard it. Build the affidavit record carefully, file with sufficient lead time to invite cross-examination, and let the absence of cross-examination do the rest of the work.

3. Rule 38.10(b) is not all-or-nothing — it can split a respondent off from the trial track. When a court is inclined to send an application to trial under Rule 38.10(b), the natural framing is that everyone goes to trial together. Resist that framing where it does not fit. A capacity-based dismissal can be granted up front; the remaining substantive issues can proceed to trial as between the parties for whom those issues are real. That two-track outcome is what Pitt J. ordered here, and it is available in any application where one respondent has a clean threshold defence and others do not.