Brian Duxbury

The applicant brought a motion to dismiss the appellant's appeals of two Zoning By-law Amendments intended to permit a residential development.

The appellant, a self-represented neighbourhood resident, raised concerns regarding incompatibility, traffic, and housing diversity, but failed to provide supporting professional evidence or demonstrate how the by-laws conflicted with provincial policies or the official plan.

The Ontario Land Tribunal granted the motion and dismissed the appeals, finding they disclosed no apparent land use planning grounds and had no reasonable prospect of success.

The appellant appealed the City of Cambridge's refusal to adopt an Official Plan Amendment and Zoning By-law Amendment to permit a two-storey addition to an existing four-storey residential building.

The proposed development would add 40 units, increase the maximum height and density, and reduce the required parking and amenity space.

The Tribunal found that the proposed intensification was appropriate for the transit-oriented downtown location, consistent with the Provincial Policy Statement, and conformed to the City's Official Plan.

The Tribunal accepted expert evidence supporting a reduced parking rate of 0.57 spaces per unit without requiring a holding provision for Transportation Demand Management measures.

The appeals were allowed and the amendments approved.

The Ontario Land Tribunal held a second Case Management Conference regarding appeals by the applicant against the municipality's failure to make a decision on a zoning by-law amendment and draft plan of subdivision.

The proposed development includes 185 residential units and the conservation of a heritage dwelling.

The Tribunal granted party status to a local resident without objection.

The parties indicated they are working towards a potential settlement, and the Tribunal scheduled a third Case Management Conference and a five-day video hearing.

The appellants appealed a decision of the Toronto Local Appeal Body (TLAB) Chair, who had cancelled a TLAB member's decision granting the appellants' application for property severance and minor variances.

The appellants argued they were denied procedural fairness during the review process and that the Chair applied an incorrect standard of review.

The Divisional Court dismissed the appeal, finding that the TLAB met its duty of procedural fairness by providing notice and an opportunity to make submissions, and that the Chair applied the correct standard of review by identifying compelling grounds of jurisdictional and factual errors before substituting his own findings.

The owners of one commercial-residential property sought declaratory and monetary relief arising from a long-running parking and access dispute with the owner and tenant-operators of the adjoining property.

The court found continuous, uninterrupted, open and peaceful historical use of a narrow strip of the adjoining lands and the rear parking area sufficient to establish a prescriptive easement before land titles conversion.

The court also held that repeated obstruction of the east-west right-of-way and deliberate parking conduct by certain defendants constituted nuisance, but rejected claims for trespass damages and intentional interference with economic relations.

Counterclaims by the adjoining tenant and related parties were dismissed.

The court granted declaratory relief and awarded a total of $30,000 against three defendants.

The Tribunal held a settlement hearing regarding an appeal by Joseph and Laura Puopolo against the Region of Waterloo's adoption of Regional Official Plan Amendment No. 2 (ROPA 2).

The settlement proposed utilizing the appellants' lands as a stormwater retention pond and outlet facility, freeing up other lands within ROPA 2 for residential development without expanding the urban area.

Based on uncontested expert planning evidence, the Tribunal found the settlement consistent with provincial policies and the Regional Official Plan, allowed the appeal in part, and amended ROPA 2 accordingly.

The applicant sought judicial review to quash a municipal zoning by-law that added a motor vehicle service station as a permitted use on the respondent's property.

The application was brought more than four years after the by-law was enacted.

The applicant argued that the municipality failed to provide adequate notice of the proposed amendment, denying it the right to participate.

The Divisional Court dismissed the application due to the significant delay, finding that the municipality had complied with the statutory notice requirements and that the delay caused prejudice to the respondents who had relied on the by-law.

The Ontario Land Tribunal held a first Case Management Conference regarding appeals by multiple cannabis operators against the Town of Pelham's Official Plan Amendment No. 09 and Zoning By-law No. 4252 (2020).

The parties reported ongoing settlement discussions but requested the scheduling of a merits hearing.

The Tribunal scheduled a four-day video hearing to commence on January 24, 2022, and issued a Procedural Order to govern the proceedings.

The Tribunal held a Case Management Conference regarding an appeal of the City of Hamilton's approval of an Official Plan Amendment to permit the extension of municipal water services to two rural properties.

The Tribunal added the applicants as parties, noted that mediation was unlikely at this stage, and scheduled a four-day video hearing.

The parties were directed to finalize the Draft Procedural Order and Issues List.

The applicant appealed the Committee of Adjustment's denial of a minor variance application to permit a multi-unit residential building with commercial space.

Prior to the hearing, the applicant revised the proposal, reducing the height and number of units, which led to a settlement with the City.

Based on uncontested expert planning evidence, the Tribunal found the revised application met the four tests under s. 45(1) of the Planning Act, was consistent with the Provincial Policy Statement, and conformed to the Growth Plan.

The appeal was allowed in part and the revised variances were authorized subject to conditions.

The Township of West Lincoln brought a motion under Rule 38.11 to set aside a consent order declaring a watercourse on the applicants' property to be a navigable waterway, which effectively created a natural severance.

The Township argued it was an affected person because the order bypassed its planning authority over lot creation and impacted a demolition agreement.

The court dismissed the motion, finding that the Township's statutory planning authority and contractual agreements did not constitute a proprietary or economic interest required to give it standing as an affected person under Rule 38.11.

The Town of Niagara-on-the-Lake issued Notices of Intention to Designate three adjacent properties under the Ontario Heritage Act.

The objector argued that the properties did not constitute a 'nested cultural heritage landscape' (CHL) and that their deep setbacks were not heritage attributes.

The Conservation Review Board found that while the properties could be considered a nested CHL for planning purposes under the Provincial Policy Statement, they could not be designated as such under the Act without improperly creating a de facto heritage conservation district.

However, the Board agreed with the Town that the deep setbacks, historically driven by a now-extinct watercourse and changing cultural norms, were valid heritage attributes that contributed to the properties' cultural heritage value.

The Board recommended designation with the nested CHL concept removed from the attributes.

The applicant sought a declaration that his property's seasonal use as a "camping and recreational compound" with a travel trailer constituted a legal non-conforming use under the Planning Act.

The respondent, an adjacent landowner, counter-applied for a declaration that the use was not lawful.

The court found the relevant zoning by-law clear and unambiguous, permitting only "park" or "open pavilion" uses in the "Hazard Land Zone" thereby prohibiting the applicant's recreational vehicle use.

The applicant failed to establish a legal non-conforming use or that the municipality was estopped from enforcing the by-law due to "officially induced error" as the municipal officials who provided advice lacked the authority to bind the municipality on zoning matters.

The application was dismissed, and the counter-application was granted.

The applicant sought judicial review to quash a resolution by the City of Brantford to sell a municipal golf course to fund affordable housing.

The applicant argued the City breached its procedural by-law, failed to notify First Nations under an agreement, and that councillors had a disqualifying bias.

The Divisional Court dismissed the application, finding no procedural error, that the applicant lacked standing to raise the First Nations notice issue, and that the high threshold for establishing a closed mind by municipal councillors was not met.

The application was also dismissed due to a seven-month delay in bringing the proceeding.

The respondent municipality brought a motion for security for costs against the applicant, a newly formed corporation seeking judicial review of a municipal resolution to sell a golf course.

The applicant conceded it had insufficient assets but argued it had a good chance of success and was engaged in public interest litigation.

The court found the applicant did not have a good chance of success on its procedural, notice, or bias arguments, and that the matter was not public interest litigation.

The motion was granted, and the applicant was ordered to post $10,000 as security for costs.

The applicant, Green Relief Inc., sought approval of a transaction for the sale of its assets to 2650064 Ontario Inc. in the course of a CCAA proceeding.

The transaction included a condition precedent releasing claims against current directors, legal counsel, the Monitor, and its counsel.

Certain founding shareholders opposed the release, arguing the court lacked jurisdiction to grant it prior to a plan of arrangement and that they wished to pursue claims for loss of chance.

The court approved the transaction and the release, finding the sale process was reasonable and the release was rationally connected to the restructuring, benefiting creditors by preventing the depletion of the estate through indemnity claims.

The court temporarily lifted the stay of proceedings to allow claims covered by tail insurance to be filed.

A case management teleconference was held to schedule the hearing of an application regarding the sale of a property.

The court scheduled the hearing for December 11, 2020, and provided directions for the filing of materials via Caselines or a file-sharing platform.

The respondent agreed not to close the sale of the property prior to the conclusion of the hearing.

The court also provided directions for a potential motion for security for costs.

This is a costs decision following a judgment that set aside a will and power of attorney due to undue influence by Robert Graham.

The applicant, Timothy Graham, sought costs from Robert personally.

The court found Robert liable for costs due to his actions in the making of the will and transfer of assets.

The court fixed partial indemnity costs payable by Robert to Timothy and also awarded a portion of Timothy's costs to be paid from the estate, recognizing the benefit to other siblings.

The court declined to award costs on a higher than partial indemnity scale, noting that Timothy's settlement offer did not qualify as a Rule 49 offer.

The defendants previously brought an unsuccessful anti-SLAPP motion to dismiss the plaintiffs' $27 million defamation action regarding a publication about contraband tobacco.

The plaintiffs, as the successful responding parties, sought costs for the motion.

The court considered the presumption under section 137.1(8) of the Courts of Justice Act, which states that a successful responding party is not entitled to costs unless appropriate in the circumstances.

Finding that the motion was not frivolous, involved matters of public interest, and lacked inappropriate behaviour by the defendants, the court held that the plaintiffs failed to rebut the presumption.

No costs were awarded.

The defendants brought a motion under s. 137.1 of the Courts of Justice Act to dismiss the plaintiffs' $27 million defamation action as a SLAPP suit.

The plaintiffs, who own a large tobacco manufacturing company, sued over a magazine publication alleging they smuggled contraband tobacco and were associated with organized crime.

The court found the publication related to a matter of public interest but concluded the plaintiffs' claim had substantial merit and the defendants failed to establish valid defences of justification, responsible communication, qualified privilege, or fair comment.

The motion to dismiss was denied.