Barnet H. Kussner

The moving party sought leave to appeal an Ontario Municipal Board decision that found it lacked jurisdiction to hear an appeal regarding a refused tree removal permit.

The right of appeal under s. 136(1) of the Municipal Act had been repealed before the permit was refused.

The court upheld the Board's finding that the moving party had no vested right of appeal upon merely filing the application, as the right only arises upon an actual refusal.

The motion for leave to appeal was dismissed.

The City of London passed an interim control by-law freezing land development along a specific corridor after discussing the matter in two closed meetings.

A property owner applied to quash the by-law, arguing the closed meetings violated the open meeting requirement under section 239 of the Municipal Act, 2001.

The Supreme Court of Canada held that the Planning Act provisions allowing interim control by-laws to be passed without prior notice or hearing do not create an exception to the open meeting requirement.

The Court upheld the decision to quash the by-law for illegality, emphasizing the importance of transparency and democratic legitimacy in municipal decision-making.

The applicants brought a motion within an application for judicial review of the Town of Markham's decision refusing to renew their body rub parlour licence.

The motion sought to compel the production of police and court records relating to other licence applications to show the licensing process was arbitrary and capricious.

The court dismissed the motion, finding the documents were not relevant to the issues pleaded in the judicial review application and that administrative tribunals are not bound by stare decisis or challenges based on discriminatory enforcement.

Following the release of the appeal decision, the parties disagreed on the settlement of the formal order regarding whether it should specify the date of termination of the commercial lease.

The Court of Appeal held that the omission of the termination date could be rectified under Rule 59.06 and determined by the remaining justices under s. 123(3) of the Courts of Justice Act.

The Court declared the lease was effectively terminated on November 19, 2001, noting this does not inhibit the trial judge's discretion on relief from forfeiture.

The applicant sought judicial review of a municipal licensing committee's decision to refuse the renewal of her body rub parlour licence due to by-law violations.

The applicant argued that the hearing lacked natural justice because the committee consisted solely of elected officials and relied on uncorroborated evidence from police and by-law officers.

The Divisional Court dismissed the application, finding that the statutory framework explicitly confided the decision to the municipality itself, the hearing was procedurally fair, and the committee's reliance on uncontradicted eyewitness evidence was not patently unreasonable.

The appellant municipality appealed a decision striking down a by-law that limited the size of billboards to 80 square feet.

The Supreme Court of Canada allowed the appeal, holding that while the by-law infringed freedom of expression under section 2(b) of the Charter, it was saved under section 1 as it minimally impaired the respondent's freedom of expression.

The Township of Dymond brought an application for judicial review to set aside a municipal restructuring order made by the Minister of Municipal Affairs and Housing that amalgamated it with two other towns.

The applicant argued that the Minister lacked jurisdiction under the former Municipal Act, breached natural justice by not holding a hearing, and violated the spirit of the legislation.

The Divisional Court dismissed the application, finding that the statutory pre-conditions for the 'double majority' rule were met, rights had accrued before the new Act came into force, and there was no requirement for a hearing before the Minister issued the order.

The landlord appealed the dismissal of its application for a declaration that a commercial lease was terminated because the tenant sublet the premises without consent.

The Court of Appeal allowed the appeal, finding that the landlord's prior consents to subleases did not authorize the new sublease.

The Court held that section 20(7) of the Commercial Tenancies Act does not preclude resort to the court's equitable jurisdiction to grant relief from forfeiture under section 98 of the Courts of Justice Act.

The issue of whether the tenant was entitled to relief from forfeiture was referred for trial.

The appellants appealed the costs awarded by the lower court judge following a lengthy hearing.

The Court of Appeal reviewed the submissions and found no error in principle in the judge's exercise of discretion regarding the costs order.

The appeal was dismissed.

The appellants appealed a summary judgment dismissing their action against the municipality for abuse of public office and conspiracy to injure.

The appellants alleged that the municipality passed zoning by-laws prohibiting 'monster' homes with the true purpose of preventing student housing.

The motion judge found no genuine issue for trial, concluding there was no evidence the by-laws were directed solely at the appellants or that student housing was specifically targeted.

The Court of Appeal found no palpable and overriding error in the motion judge's assessment of the evidence and dismissed the appeal, requesting further written submissions on the issue of costs.

The Ontario Municipal Board stated a case to the Divisional Court asking whether an order issued after January 1, 2003, affirming or amending the City of Ottawa's ward boundary by-law, could be effective for the 2003 regular municipal elections.

The Ministry argued that ward boundaries cannot be changed after January 1 of an election year under the Municipal Act.

The Divisional Court held that the statutory restriction applied only to by-laws 'dividing' a municipality into wards, not 'redividing' them.

Therefore, the by-law redividing the wards could be effective for the upcoming election.

The City of Guelph entered into an agreement to sell lands within a redevelopment area under the Planning Act.

The lands included a closed street.

The abutting owner argued that under s. 315 of the Municipal Act, the City was required to offer the lands to it first.

The application judge held that the Planning Act provided a complete scheme and excluded s. 315.

On appeal, the Court of Appeal found that while the complete scheme argument was unsatisfactory, there was a genuine conflict between s. 315 of the Municipal Act and s. 22(8)(b) of the Planning Act.

Under s. 71 of the Planning Act, the Planning Act prevails in the event of a conflict.

The appeal was dismissed.

The City of Ottawa passed a by-law establishing new ward boundaries for upcoming municipal elections.

Three residents' associations appealed the by-law to the Ontario Municipal Board.

The Minister of Municipal Affairs and Housing issued a Notice of Deferral under s. 25 of the Municipal Act, staying the appeal.

The City brought an application for judicial review to quash the Notice.

The Divisional Court granted the application, finding that the Minister's power to defer applications under s. 25 did not extend to appeals of municipal by-laws under s. 13.1(2).

The Notice of Deferral was quashed for lack of jurisdiction.

The appellant appealed a decision, raising a challenge under section 2(b) of the Charter.

The Court of Appeal dismissed the appeal, agreeing with the lower court judge that a previous decision was determinative and that there was no evidentiary base to support the Charter challenge.

Costs were fixed at $12,500.

The defendants brought a motion for directions to determine whether the Court of Appeal had jurisdiction to hear the plaintiffs' appeal from an order dismissing their cross-motion for partial summary judgment, alongside their appeal from the final order granting the defendants summary judgment and dismissing the action.

The Court of Appeal held that the order dismissing the partial summary judgment motion was interlocutory.

Therefore, the plaintiffs must first obtain leave to appeal to the Divisional Court before the Court of Appeal can assume jurisdiction over both matters under section 6(2) of the Courts of Justice Act.

The defendants' motion for directions was denied.

The appellant advertising company challenged a municipal by-law that completely prohibited billboard signs and third party signs on private land.

The Court of Appeal held that billboard advertising is a form of commercial expression protected by section 2(b) of the Charter.

The Court found that the municipality failed to demonstrate under section 1 of the Charter that the total prohibition was a reasonable limit, as it was not rationally connected to preserving the town's character and did not minimally impair the right to freedom of expression.

The appeal was allowed and the by-law was declared invalid, with the declaration suspended for six months.

A physician sought production of confidential reference letters that allegedly blocked his appointment to active hospital staff privileges, arguing he needed them to assess potential defamation or economic tort claims and to clear his professional reputation.

The court held that a free-standing equitable action for discovery, as the modern equivalent of a bill of discovery, can coexist with the Rules of Civil Procedure and may be brought by application where no material facts are in dispute.

However, applying the Wigmore criteria, the court found the letters privileged because confidentiality was essential to candid peer review in hospital staff appointments and the public interest in preserving that process outweighed the benefit of disclosure.

The availability of a statutory route under the Public Hospitals Act to challenge the denial of privileges further weakened the case for overriding privilege.

The appeal was dismissed with costs.

The cross-appellant elector appealed a judgment under the Municipal Conflict of Interest Act, seeking to introduce fresh evidence that the respondent mayor owned additional properties near a proposed highway extension.

The Divisional Court held that the normal test for fresh evidence is modified by s. 11(2) of the Act, which allows a new trial before the same judge to take additional evidence if it might have affected the initial disposition.

The appeal was allowed and the matter remitted to the trial judge to reconsider the judgment in light of the fresh evidence.

The applicants challenged a City of Toronto by-law requiring individual taxi-cab owners to attend mechanical examinations of their vehicles in person, while allowing corporate and partnership owners to send designated custodians.

The applicants argued the by-law lacked enabling authority, was enacted in bad faith, was vague, violated procedural fairness, and infringed section 15 of the Charter.

The Divisional Court rejected the administrative law arguments but found the personal attendance requirement had a discriminatory effect on elderly and disabled owners who could not reasonably attend in person.

The court held the provision was not saved by section 1 of the Charter, as the owner's presence was not necessary for an effective examination, and struck down the impugned section of the by-law.

The cross-appellant, an elector, appealed a judgment that found the respondent mayor breached the Municipal Conflict of Interest Act but excused the breach as an error in judgment.

The cross-appellant sought to introduce fresh evidence on appeal showing the mayor had interests in other properties affected by the highway extension vote.

The Divisional Court modified the traditional test for fresh evidence due to the unique powers under s. 11(2) of the Act, admitted the evidence, and remitted the matter to the trial judge for reconsideration.