Brian Wei Fou Chung

The Town of Ajax sought an order requiring the respondents to demolish and remove above-grade construction carried out without a building permit at 599 Kingston Road West, Ajax.

The respondents acknowledged the unpermitted construction but resisted demolition, arguing they should be allowed to continue obtaining the requisite Record of Site Condition (RSC).

The property had a history of soil contamination from its prior use as an automotive facility.

The respondents had entered into a Conditional Building Permit Agreement allowing only below-grade work pending RSC approval, but proceeded to construct above-grade elements without authorization.

Despite multiple warnings, stop work orders, and a mandatory injunction, construction continued.

The court found the respondents' conduct was a calculated decision by an experienced developer to circumvent regulatory requirements and ordered demolition as the only appropriate remedy to enforce building code compliance and protect public safety.

The court considered written submissions on costs following the granting of summary judgment in favour of the defendant, The Corporation of the City of Timmins.

The defendant sought substantial indemnity costs, while the self-represented plaintiff argued for no costs or, alternatively, costs in his favour for a disclosure motion.

The court reviewed the relevant legal framework, including the Courts of Justice Act and Rules of Civil Procedure, and found that the defendant was entitled to substantial indemnity costs throughout, given the plaintiff’s prior similar litigation and the defendant’s early offer to settle.

The court adjusted the quantum of costs to reflect partial success on a disclosure motion and awarded a total of $80,631.57 to the defendant.

The court dismissed the plaintiffs' motion for summary judgment and granted the defendants' "boomerang" motion for summary judgment, dismissing the plaintiffs' claim.

The case involved a dispute over entitlement to shares and options following the termination of a consulting arrangement.

The court found that the contract was not a fixed-term contract and that the plaintiffs were not entitled to unvested shares or options after their engagement ended.

The court also addressed the application of res judicata, finding that the plaintiffs should have sought all relief in a single proceeding, but ultimately decided the matter on the merits of the contract.

The appellants, Temagami Barge Limited and its principal, Dashiel Lowery Delarosbel, moved for a stay of a permanent injunction issued by the Superior Court of Justice.

The injunction prohibited certain commercial activities on their property due to violations of municipal zoning by-laws.

Applying the three-part RJR-MacDonald test for a stay pending appeal, the Court of Appeal found a serious issue for appeal but determined that the appellants failed to demonstrate irreparable harm, as their evidence was vague and harm to third parties was generally irrelevant.

Furthermore, the balance of convenience favoured denying the stay, as the public interest in enforcing municipal by-laws outweighed the appellants' unproven claims of harm.

The motion for a stay was dismissed, and the appeal was directed to be expedited.

This endorsement addresses the question of costs for the applications below, following an appeal decision (2023 ONCA 524) where the Court of Appeal found the application judge erred in granting an injunction against the appellants (Cowie et al.) based on a band council resolution.

The original injunction was granted to Hiawatha First Nation to prohibit construction of a gas station.

Although the appellants were successful on appeal, no costs were awarded for the appeal itself due to their concession regarding the applicability of a new Land Code.

The application judge had awarded Hiawatha First Nation $235,000 in costs.

This endorsement reduces that award to $117,500, all-inclusive, considering the conduct of both parties and the appellants' socially responsible concession.

The Corporation of the Municipality of Temagami brought a motion seeking leave to file an additional affidavit (Picard Affidavit) after cross-examinations were completed, pursuant to Rule 39.02(2) of the Rules of Civil Procedure.

The affidavit contained evidence regarding the historical land use of the property, discovered during an additional search requested by the respondents.

The respondents opposed the motion, arguing it was fresh evidence and would cause non-compensable prejudice.

The court granted leave, finding that the proposed evidence was relevant, responded to matters raised during cross-examinations, would not result in non-compensable prejudice, and the applicant provided a reasonable explanation for its late discovery.

The appellant, Oro-Medonte Property Owners’ Association, appealed a summary judgment dismissing its action to quash a by-law imposing water system fees and to declare the water system municipal.

The by-law was passed by the respondent, The Corporation of the Township of Oro-Medonte, to fund upgrades to the Zone 1 water system.

The Court of Appeal upheld the motion judge's finding that the Zone 1 system was not assumed by the municipality and that the by-law was within the municipality's statutory authority under the Municipal Act, 2001.

The appeal was dismissed.

The Chief Building Official of the City of Cambridge issued an emergency order for the immediate demolition of the designated heritage Preston Springs Hotel due to its unsafe structural condition and persistent trespassing.

The CBO applied to the court to confirm the reasonableness of this order and to recover demolition costs from the owner, Haastown Holdings (Preston) Inc., who consented to both orders.

The Architectural Conservancy of Ontario (ACO) intervened, challenging the reasonableness of the demolition order, arguing that the CBO failed to consider relevant factors (heritage status, appeal to CRB, alternative remediation options) and considered irrelevant factors (cost of remediation).

The court applied a reasonableness standard of review, finding that the CBO's decision was well-informed by expert reports and his own inspections, and that the building posed an immediate danger that necessitated demolition.

The court confirmed the emergency order and the recoverability of demolition costs from the owner, dismissing the ACO's challenge and alternate relief requests as moot or unsupported.

This appeal addressed whether a Band Council Resolution (BCR) could be enforced as a by-law under the Indian Act.

Hiawatha First Nation sought a permanent injunction to stop three of its members from building a gas station on the reserve, relying on a BCR that imposed a moratorium on new businesses.

The application judge granted the injunction, treating the BCR as a by-law.

The Court of Appeal found that a BCR is distinct from a by-law and does not have the force of law to create rights and duties for band members or third parties under the Indian Act.

The court emphasized that law-making authority under the Indian Act, particularly when affecting proprietary rights, requires adherence to specific by-law formalities.

Consequently, the appeal was allowed, and the injunction based on the BCR was set aside.

The defendants brought a motion to strike the plaintiff's Statement of Claim, which pleaded thirteen causes of action arising from an internet contract for bitcoin investment.

The court found the Statement of Claim to be based on fictionalized facts from the plaintiff's memory rather than the actual contract.

The court struck the Statement of Claim with leave to amend, but specifically struck claims against individual directors, conversion, breach of the Competition Act, and intentional infliction of mental distress without leave to amend.

The claim for breach of Colombian law was struck with leave to amend to properly plead foreign law.

The appellants appealed the dismissal of their motion to amend their statement of claim to advance personal claims for damages and increase the prayer for relief, stemming from an explosion in an apartment building they previously owned through a numbered company.

The Court of Appeal dismissed the appeal, upholding the motion judge's decision.

The court found the motion to amend was brought too late, would cause presumed non-compensable prejudice to the defendants by materially altering the factual framework and requiring new evidence, and that the proposed personal claims by shareholders lacked a proper legal foundation as they did not demonstrate a personal cause of action separate from the company's claims.

The Architectural Conservancy of Ontario, Heritage Cambridge (ACO-Cambridge), an unincorporated entity, sought leave to intervene in an application by the Chief Building Official of the City of Cambridge to confirm an Emergency Order for the demolition of the Preston Springs Hotel, a designated heritage property.

The court first addressed ACO-Cambridge's legal status, substituting the parent organization, Architectural Conservancy of Ontario (ACO), as the proper moving party under Rule 26.01.

The court then considered the Rule 13 test for intervention, finding that ACO had a sufficient public interest in the matter, which was deemed to be of public importance.

While granting leave to intervene, the court imposed strict limitations on ACO's participation, restricting its evidence and submissions to the sole issue of the reasonableness of the CBO's Emergency Order and limiting affidavits to two, to prevent undue delay and expansion of the proceeding.

The court also determined ACO to be a public interest litigant but deferred the decision on its liability for costs of the main application to the application judge.

The plaintiffs sought an injunction to prevent golf balls from the defendants' golf course from entering their property, causing damage and posing a safety risk.

The court dismissed the motion, primarily because the plaintiffs failed to provide a mandatory undertaking concerning damages as required by Rule 40.03 of the Rules of Civil Procedure.

Additionally, the court found that the plaintiffs did not demonstrate irreparable harm and that the balance of convenience favored the defendants, who had taken steps to mitigate the issue and whose business would be significantly impacted by the injunction.

This appeal concerned the interpretation of an exculpatory clause (clause 28) in a preconstruction condominium purchase and sale agreement.

The appellants sought to recover more than their deposit plus interest upon termination of the agreement.

The court affirmed the motion judge's finding that clause 28, which limited the respondent's liability to the deposit plus interest, was clear and not altered by the incorporated Tarion provisions, as it represented an agreed allocation of risk consistent with the Tarion framework.

The appeal was dismissed.

The Court of Appeal for Ontario allowed an appeal by an insurer, Co-operators General Insurance Company, finding it had no duty to defend its insureds, Family and Children’s Services of Lanark, Leeds and Grenville (FCS) and Laridae Communications Inc., against a class action and a third-party claim.

The claims arose from a data breach where a confidential report was hacked from FCS's website and posted online.

The court held that the data exclusion clauses in both the Commercial General Liability (CGL) and Professional Liability policies were unambiguous and clearly excluded coverage for claims arising from the electronic distribution or display of data.

The court rejected arguments that the exclusion clauses nullified the policies or that there were non-electronic claims, emphasizing that the substance of the claims solely related to online data dissemination.

The plaintiffs, purchasers of condominium units, sued the defendant developer for breach of contract after the project was terminated and deposits returned.

The plaintiffs alleged the developer failed to take commercially reasonable steps to satisfy financing conditions and obtain municipal approvals.

The defendant brought a cross-motion for summary judgment, relying on an exculpatory clause (Clause 28) in the agreements that limited liability to the return of deposits.

The court granted the plaintiffs leave to amend their statement of claim but ultimately granted the defendant's summary judgment motion, dismissing the plaintiffs' action.

The court found Clause 28 enforceable, applying the three-step Tercon Contractors analysis, concluding it applied to the circumstances and was not contrary to public policy, even if a fundamental breach occurred.

The applicants, Laridae Communications Inc. and Family and Children's Services of Lanark, Leeds and Grenville (FCS), brought applications seeking declarations that Co-operators General Insurance Company owed them a duty to defend in a third-party claim and a class proceeding, respectively, arising from a data breach.

Co-operators denied coverage based on "data exclusion" clauses in the insurance policies.

Co-operators also brought an application denying a duty to defend Laridae.

The court found that Co-operators failed to discharge its onus to prove the claims clearly fell within the exclusion clauses and that there was no possibility of coverage.

The court granted the applications of Laridae and FCS, declaring a duty to defend, and dismissed Co-operators' application.

The Town of Lincoln sought a declaration that AIG Insurance Company of Canada had a duty to defend it under a public entity general insurance policy.

The Town was a defendant in a negligence action alleging sewage overflow due to a ruptured pipe, disrepair of a storm sewer, and improper land grading.

AIG denied coverage based on a pollution exclusion clause.

The court found that the claim against the Town had two branches: one related to the pumping station and sewage flood (potentially subject to exclusion), and another related to the storm sewers and land grading (not subject to the exclusion).

As the second branch was not derivative and concerned a different wrongdoing, the pollution exclusion did not apply to it.

Therefore, the insurer had a duty to defend.

The appellant agreed to sell her home at 45 Moore Avenue, Toronto to the respondents.

Between execution of the Agreement of Purchase and Sale and closing, neighbouring property owners asserted ownership of a two-foot-wide strip of the driveway.

The respondents refused to close, claiming the appellant could not convey clear title to the entire driveway.

The appellant sued for damages; the respondents counterclaimed for return of their deposit.

The motion judge found in favour of the respondents, determining that the APS represented the appellant owned all of what visually appeared to be the functioning private driveway, and that the title defect was significant enough to justify refusing to close.

The appellant appealed, arguing the APS only required sale of a seven-foot-wide driveway (per the 1987 survey) and that any defect was not significant.

The Court of Appeal dismissed the appeal.

The appellants successfully appealed orders from the Superior Court of Justice that had reinstated a default judgment and permitted the sale of certain property.

The appeal was allowed because the respondent failed to make full and fair disclosure of material facts concerning the appellants' alleged default and participation in the action when attending before the court without notice to the appellants.

The appellants were self-represented throughout most of the proceedings and only retained counsel a few months before the appeal was argued.

The court awarded costs to the appellants on a partial indemnity basis, finding their claim for substantial or full indemnity costs to have no basis and their partial indemnity claim to be excessive and disproportionate.