Barnet H. Kussner

The appellant brought an adjournment application because a litigation guardian was recently appointed and the appellant had been hospitalized for mental health concerns.

The respondent opposed the adjournment.

The Court of Appeal granted the adjournment, setting timelines for responding to a Rule 2.1 application and scheduling the appeal hearing.

The appellant sought an adjournment of his appeal from an order declaring him a vexatious litigant, citing a pending Superior Court application to appoint a guardian for his property and care.

Despite concerns about delay and a previous dismissal of a litigation guardian application, the Court of Appeal granted a brief 60-day adjournment due to newly authored psychiatric evidence regarding the appellant's capacity.

The appellants, owners of several hookah lounges in the Regional Municipality of Peel, challenged by-law No. 30-2016, which prohibits waterpipe smoking in enclosed public places, enclosed workplaces, and restaurant or bar patios.

The appellants argued the by-law was ultra vires the Region, conflicted with provincial occupational health and safety legislation, and was enacted in bad faith.

The application judge dismissed the application, finding the by-law was a valid exercise of municipal authority aimed at protecting public health and safety.

The Court of Appeal upheld this decision, dismissing the appeal and awarding costs to the respondent.

The applicants, having lost their initial application to quash a by-law prohibiting water pipe smoking, sought no costs.

The respondent, The Regional Municipality of Peel, sought costs on a substantial or partial indemnity basis.

The court rejected the applicants' submission for no costs, finding their application was not one of first impression and they knew the risks given prior similar cases.

While acknowledging some merit to the respondent's arguments for substantial indemnity due to re-arguing settled matters and one applicant opening a new lounge, the court found the applicants' conduct not egregious enough to warrant elevated costs.

Applying principles of reasonableness under Rule 57.01(1), the court awarded partial indemnity costs, but reduced the amount by $10,000 due to junior counsel's attendance at the hearing not being deemed necessary for the proper presentation of the respondent's case.

The applicants sought a declaration that a by-law banning waterpipes was invalid.

At the outset of submissions, the applicants moved for leave to file a supplementary affidavit after cross-examinations were completed.

The respondents opposed.

The court dismissed the motion, finding that the document attached to the affidavit was not a "public document" under common law or the Evidence Act, and the applicants failed to meet the high threshold under Rule 39.02(2) of the Rules of Civil Procedure.

The evidence was not responsive to matters raised on cross-examination, and no reasonable explanation for the late filing was provided.

The applicants, owners of several waterpipe lounges, sought to quash provisions of a Regional Municipality of Peel by-law prohibiting waterpipe smoking in enclosed public places.

They argued the by-law conflicted with provincial legislation, was enacted in bad faith, and was ultra vires as it effectively prohibited their businesses.

The Superior Court of Justice dismissed the application, finding that the Region had the statutory authority under the Municipal Act, 2001 to enact the by-law for the protection of public health and safety.

The court also found no conflict with the Occupational Health and Safety Act and no evidence of bad faith.

On appeal from a Divisional Court decision, the Court of Appeal considered whether the Ontario Municipal Board (OMB) had jurisdiction to impose a 25 percent cap on the alternative parkland dedication requirement under section 42 of the Planning Act.

The Town of Richmond Hill had adopted an Official Plan policy allowing for parkland dedication at a rate of one hectare per 300 dwelling units.

Developers challenged this policy, and the OMB imposed a 25 percent cap on the amount of land required to be conveyed.

The Divisional Court set aside the cap, finding the OMB lacked authority to impose it.

The Court of Appeal upheld this decision, holding that the legislature has given municipalities exclusive authority to determine the rate under section 42(3), subject only to the requirement that an Official Plan contain specific policies dealing with parkland provision and the use of the alternative requirement.

The OMB's role is limited to reviewing whether such policies are appropriate and accord with provincial policies, not to set or cap the rate itself.

The applicant brought a motion to consolidate or hear together two applications seeking the removal of a mayor and a councillor for alleged breaches of the Municipal Conflict of Interest Act.

The court dismissed the motion, finding that one of the applications had already been fully argued and was no longer 'pending' as required by Rule 6.01.

Furthermore, the court held that the applications required individualized reviews of separate impugned votes, meaning there were no common material facts that would justify joinder or risk inconsistent judicial findings.

The applicant sought judicial review of an Ontario Municipal Board decision that dismissed parts of her appeal regarding a municipal Official Plan.

The Divisional Court dismissed the application on the basis that the applicant had an adequate alternative remedy.

Specifically, the applicant failed to request a review or rehearing under section 43 of the Ontario Municipal Board Act, which provides a statutory mechanism to address her claims of procedural unfairness.

The court noted that allowing the judicial review would undermine the legislative scheme, which requires leave to appeal Board decisions.

The applicant sought declaratory relief that it was exempt from a parkland levy imposed as a condition of obtaining a building permit for redevelopment of a restaurant on municipal lands.

The municipality argued the application improperly circumvented the statutory appeal mechanism under s. 25(1) of the Building Code Act, 1992, which provides a 20‑day appeal period from decisions of a chief building official.

The court held that the proper procedure was a statutory appeal, not an application for declaratory relief, and that the applicant had failed to pursue the appeal within the prescribed timeframe.

The court declined to convert the application into a statutory appeal or extend the appeal deadline, finding the delay unreasonable and prejudicial to the municipality.

The application was dismissed and costs were awarded to the respondent.

Following the dismissal of an appeal under the Building Code Act, the successful respondents sought costs.

The appellant argued no costs should be awarded or they should be limited to $10,000.

The Divisional Court found no reason to depart from the general rule that successful parties are entitled to partial indemnity costs, but found the amounts sought excessive.

The court awarded partial indemnity costs of $15,000 to the Township and Kopp, and $7,500 to Lystek.

The appellant municipality appealed the dismissal of its motion for summary judgment, which sought to dismiss the respondent's claim for $8.9 million in unfunded transit liabilities as statute-barred.

The dispute arose from a by-law transferring transit responsibilities from the appellant to the respondent, which required the parties to negotiate the allocation of unfunded liabilities.

The Court of Appeal held that the limitation period did not begin to run until the appellant's municipal council passed a formal resolution denying responsibility and refusing to arbitrate, as the by-law imposed an ongoing obligation to negotiate.

The appeal was dismissed.

The moving party sought leave to appeal, which was dismissed on the basis of prematurity.

The successful respondents sought costs.

The moving party argued each party should bear its own costs due to the public interest and novelty of the issue.

The court rejected this argument, finding that the usual rule of costs following the event applied, especially since the motion was dismissed for prematurity.

The court awarded costs of $3,000 inclusive to the clients represented by Mr. Streisfield.

The Town of Richmond Hill sought leave to appeal a preliminary decision of the Ontario Municipal Board regarding the interpretation of parkland dedication provisions under the Planning Act.

The Town argued that the Board could not set an alternative park dedication rate in an Official Plan.

The Divisional Court dismissed the motion for leave to appeal, finding it premature.

The Court held that the issue was not a discrete threshold question and that granting leave would improperly fragment the ongoing Board proceedings.

The moving municipality sought summary judgment dismissing an action as statute‑barred under the Limitations Act, 2002.

The dispute arose from a by‑law transferring responsibility for public transit assets and liabilities from lower‑tier municipalities to a regional municipality, including unresolved responsibility for unfunded employee liabilities.

The moving party argued the two‑year limitation period began when the by‑law took effect or when negotiations and an arbitration clause permitted referral to arbitration.

The court held that a permissive arbitration clause stating parties “may” proceed to arbitration does not trigger the limitation period.

The claim was discoverable only when municipal council formally passed a resolution denying responsibility and refusing arbitration, as municipal staff cannot bind the municipality without delegated authority.

The respondents brought a motion to strike portions of an affidavit filed by the applicant in an application seeking to quash a municipal by-law under the City of Toronto Act.

The court had previously struck portions of an earlier affidavit for containing irrelevant historical allegations and improper innuendo about prior municipal actions.

On the renewed motion, the respondents argued the revised affidavit continued to include irrelevant references to earlier by-laws and municipal initiatives.

The court held that most of the objectionable material had been sufficiently sanitized and could remain as factual background potentially relevant to the issues, including whether the impugned by-law conferred a prohibited bonus.

However, one paragraph expressing the deponent’s concerns about public funds used in 2000 was struck as irrelevant.

The appellants appealed a Small Claims Court decision finding the late property owner liable for annual levies for the maintenance of private roads and parklands in Wychwood Park.

The appellants argued that because the Trust Deed establishing the levies was not registered on title under the Land Titles Act, it was not binding.

The Divisional Court dismissed the appeal, holding that the common law doctrine of actual notice applies under the Land Titles Act, and the owner was bound by the Trust Deed because he had actual notice of it.

The court also declined to hear new arguments raised for the first time on appeal regarding positive covenants and the rule against perpetuities.

The appellant lower-tier municipality appealed a decision finding its Mayor and Deputy Mayor had a conflict of interest under the Municipal Conflict of Interest Act (MCIA) preventing them from voting at the upper-tier municipal council on a land sale.

The application judge held that the lower-tier municipality was a 'body' under s. 2(a)(iii) of the MCIA, imputing its pecuniary interest to its representatives.

The Court of Appeal allowed the appeal, holding that interpreting 'body' to include a lower-tier municipality in this context would frustrate the legislative scheme of upper- and lower-tier municipal governance.

The representatives were not precluded from participating in the discussions and votes.

The applicant sought judicial review to quash a municipality's decision awarding a construction contract to a third party, alleging breaches of procedural fairness and natural justice.

The Divisional Court dismissed the application, finding that the requested remedy of certiorari or mandamus was discretionary and inappropriate because the third party had already commenced work.

The court concluded that damages would be an adequate and preferable remedy for the applicant.

The municipality appealed a decision quashing its sign by-law in its entirety and granting the respondent an individual remedy under s. 24(1) of the Charter to erect billboards.

The Court of Appeal found that while the by-law infringed s. 2(b) of the Charter, certain provisions were justified under s. 1 as they minimally impaired freedom of expression to achieve aesthetic objectives.

However, other provisions that effectively eliminated all commercially viable locations for third-party signs were not saved under s. 1 and were quashed.

The Court also held that the application judge erred in granting an individual remedy under s. 24(1) alongside a declaration of invalidity.