Charles Murray Klaas Loopstra

This costs endorsement addresses the fixing of costs following the dismissal of the plaintiff’s action for delay.

The court reviews the parties’ submissions on quantum, the applicable legal principles under the Courts of Justice Act and Rules of Civil Procedure, and the reasonableness of the fees claimed.

The court ultimately fixes costs in favour of the defendant Town of Bracebridge, finding the amounts sought to be fair and proportionate given the complexity and history of the litigation.

The plaintiff, David Richard Reid, brought a motion to set aside the Registrar’s order dismissing his 2015 action for delay.

The court reviewed the history of related litigation between Reid and the Town of Bracebridge, including prior settlements, subsequent actions, and procedural steps.

Applying the contextual approach to the four-factor test for setting aside a dismissal for delay, the court found that Reid failed to provide a satisfactory explanation for the delay, did not show inadvertence, and failed to rebut the presumption of prejudice to the defendants.

The motion was dismissed and the Registrar’s dismissal order confirmed.

The Court of Appeal for Ontario dismissed the appeal by Temagami Barge Limited and Dashiel Lowery Delarosbel from an order restraining their use of property for 13 uses found to contravene municipal zoning by-laws.

The court upheld the application judge’s findings on legal non-conforming use, the treatment of expert evidence, and the appropriateness of proceeding by application.

The court also found no error in the award of costs to the municipality, noting that leave to appeal costs was not sought as required.

Costs of the appeal were fixed at $25,000 to the municipality.

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.

The plaintiff, Erwin Banfi, brought a motion for approval of a class action settlement and class counsel fees against multiple municipal and provincial defendants concerning alleged increased flood risk and reduced property values due to overdevelopment in Oakville.

The action, initially premised on property diminution, shifted focus due to difficulties in proving causation and quantifying individual damages.

The proposed settlement involved a $500,000 payment by defendants to the Intact Centre on Climate Adaptation for a flood education and protection program for class members, and class counsel fees of $495,000.

The court approved the cy-près settlement, finding it fair, reasonable, and in the best interests of the class, given the litigation's challenges and the material benefit provided to class members.

Class counsel fees and a $5,000 honorarium for the representative plaintiff were also approved.

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.

This appeal arose from a personal injury action where the Town of Milton, a defendant, brought a third-party claim against Milton Hydro Distribution Inc. for contribution and indemnity, alleging negligent removal of a street luminaire.

The motion judge granted summary judgment dismissing the third-party claim, finding Milton Hydro owed no duty of care and that the Town of Milton's failure to inspect constituted an intervening act breaking causation.

The Court of Appeal for Ontario allowed the appeal, finding the motion judge erred by conflating duty of care and causation analyses and incorrectly applying the intervening act doctrine.

The court emphasized that the passage of time alone does not negate foreseeability and that multiple parties can be responsible for harm.

The third-party claim was remitted for trial with the main action.

The Barge Respondents (Temagami Barge Limited and Dashiel Lowery Delarosbel) brought a motion to transfer an application from Toronto to North Bay.

The applicant, Corporation of the Municipality of Temagami, opposed this transfer, advocating for Haileybury due to significantly shorter hearing delays.

The court, applying Rule 13.1.02(2)(b) of the Rules of Civil Procedure, dismissed the motion to transfer to North Bay.

Instead, the court ordered the application to be transferred to Haileybury, finding it more geographically appropriate for the community and witnesses, and crucial for securing the just, most expeditious, and least expensive determination of the proceeding by avoiding further delay.

Costs were awarded to the Municipality of Temagami.

The applicant sought a declaration that mutual easements among the parties, which granted rights for vehicular and pedestrian access and egress, did not include the right for users to park on each other's lands.

The court found that the easements unambiguously dealt only with access and egress, and that parking rights were contractual obligations established through separate agreements, such as a Site Plan Agreement and a tripartite agreement, rather than property rights conveyed by the easements.

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

This appeal concerned an actionable encroachment on an easement.

The appellants built a swimming pool and amenities over a ten-foot strip of land subject to an easement held by the respondents, which prohibited the erection of any building or structure.

The application judge found an actionable encroachment and ordered removal.

The appellants appealed, arguing the easement was not intended to prohibit such structures, that the 'substantial interference' test was misapplied, and that the easement was abandoned or proprietary estoppel applied.

The Court of Appeal dismissed the appeal, affirming that the express prohibition in the easement constituted an actionable encroachment, and rejected arguments of abandonment or proprietary estoppel.

This costs endorsement followed the dismissal of Edwin Allan's motion for a certificate of pending litigation (CPL).

Gordon and Joyce Allan, the successful responding parties to the CPL motion, sought $65,000 in substantial indemnity costs, citing formal and informal settlement offers.

Edwin Allan argued the quantum was excessive and payment should be deferred until trial, alleging the respondents inflated costs.

The court determined that Gordon and Joyce Allan were not entitled to substantial indemnity costs under Rule 49.10(2) as they were the responding parties.

The court fixed partial indemnity costs at $20,000, inclusive of disbursements and HST, to be paid by Edwin Allan within 60 days, finding the requested amount exorbitant given the motion's simplicity and the retention of senior counsel.

Following the dismissal of a defendant’s motion for summary judgment, the court addressed the issue of costs.

The plaintiff sought partial indemnity costs totaling $17,234.66 plus HST, while the defendant argued the plaintiff should recover only $6,795.

Applying the factors under Rule 57.01(1) of the Rules of Civil Procedure and the principle of proportionality, the court held that the plaintiff was entitled to the full amount claimed.

The requested costs were reasonable, particularly as they were less than the amount originally claimed by the defendant when it anticipated success on the motion.

A municipality sought a permanent injunction restraining landowners from depositing large quantities of fill on property located on the Oak Ridges Moraine.

The respondents argued the dumping of approximately 300,000 cubic metres of fill constituted a normal farm practice intended to improve agricultural land and therefore was protected from municipal bylaw restrictions under provincial legislation.

The court held that the scale of the fill operation constituted a prohibited site alteration under the Oak Ridges Moraine Conservation Plan and did not qualify as a normal farm practice.

The respondents had also ignored multiple municipal orders and a prior agreement restricting fill placement.

A permanent injunction was granted restraining further site alteration except as permitted under the building permit and applicable bylaws.