Charles Murray Klaas Loopstra

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.

The appellant was electrocuted by stray voltage from a light pole at a municipally-owned soccer field.

The damage to the pole was caused by a lightning strike.

The appellants sued under the Occupiers' Liability Act, but the trial judge dismissed the action, finding the municipality met the standard of care.

On appeal, the appellants argued the trial judge erred in his factual findings regarding the timing of the lightning strike and in admitting and relying on the respondent's expert evidence regarding the inefficacy of pen testers to detect stray voltage.

The Court of Appeal dismissed the appeal, finding no reversible errors in the trial judge's factual findings or evidentiary rulings.

The plaintiff, an 18-year-old soccer player, suffered an electric shock from stray voltage leaking from a light pole at a municipally-owned sports field.

The shock was caused by internal damage to the pole's wiring resulting from a recent lightning strike.

The plaintiff sued the municipality under the Occupiers' Liability Act, claiming physical and psychological injuries, including PTSD.

The Superior Court of Justice dismissed the action, finding that the specific nature of the electrical failure was highly unusual and not reasonably foreseeable.

The court concluded that the municipality had met its standard of care by adhering to regular inspection and maintenance protocols, and was not liable for the plaintiff's injuries.

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.

The applicants applied under the Boundaries Act to confirm the boundaries of their waterfront property, specifically the boundary dividing flooded lands between their parcel and the objectors' abutting parcel.

The flooded lands were added to the upland parcels by a 1967 Certificate of Correction.

The applicants' surveyor proposed a boundary based on the location of an existing dock, while the objectors' surveyor proposed extending the existing straight-line boundary.

The Deputy Director of Titles rejected both approaches, finding that the applicants' proposed line was arbitrary and the objectors' proposed line would inequitably cut off the applicants' riparian access.

The Deputy Director confirmed a boundary set radially from the controlled high water mark, providing an equitable division that respected the original shoreline configuration and maintained riparian rights.

The applicant municipality sought leave to appeal an Ontario Municipal Board decision approving a zoning by-law passed by a neighbouring municipality to permit a major tourist destination, including a casino.

The applicant raised eight questions of law, arguing the OMB misinterpreted the Planning Act, regulations, and official plans regarding municipal council decisions, complete applications, holding provisions, and public works.

The Divisional Court dismissed the application, finding the OMB's interpretations were reasonable and within its specialized planning expertise.

The applicant, a town councillor, brought an application for judicial review regarding a sexual harassment investigation.

The Integrity Commissioner subsequently concluded the complaint could not be determined, rendering the application moot.

The applicant amended his application to seek a declaration of mootness and costs.

The Divisional Court dismissed the application, finding no unusual circumstances to award costs to the applicant for a moot proceeding, and awarded $15,000 in costs to the respondent Town.

The applicant filed a human rights complaint alleging discrimination based on disability after a Justice of the Peace denied his request for an adjournment of a traffic court trial and convicted him in absentia.

The respondents argued the Tribunal lacked jurisdiction.

The Tribunal dismissed the application at a preliminary stage, finding it plain and obvious that the complaint was barred by the doctrine of adjudicative immunity, which protects judicial decision-makers from legal proceedings based on their adjudicative actions.

The appellant lawyer appealed a decision of the Law Society Appeal Panel which upheld a finding of professional misconduct for facilitating mortgage fraud in ten real estate transactions.

The Appeal Panel had substituted a three-month suspension for a reprimand and increased the costs award against the appellant.

The Divisional Court dismissed the appeal, finding that the Appeal Panel's decisions on misconduct, penalty, and costs were all reasonable.

The City of Brockville brought a motion for an order extending the time to appeal the 2003 through 2012 property assessments of its wastewater treatment facility, alleging a palpable error in the building's recorded height.

The Assessment Review Board dismissed the motion, finding that while section 40.1 of the Assessment Act allows for the correction of palpable errors without a limitation period, the moving party failed to provide clear and cogent evidence that the error existed for the taxation years in question.

The Board also noted that it lacks the jurisdiction to apply the equitable doctrine of laches.

The Ministry of Transportation (MTO) appealed a trial judgment finding it liable for the failure of a road surface treatment applied by the respondent contractors.

The trial judge concluded the contract was a method specification contract, placing the risk of failure on the MTO, and heavily criticized MTO's counsel for allegedly improperly influencing its expert witness, awarding full indemnity costs.

The Court of Appeal upheld the trial judge's interpretation of the contract but found he erred in his severe criticism of MTO's trial counsel, noting that counsel's interactions with the expert were appropriate under the principles in Moore v. Getahun.

Consequently, the Court reduced the trial costs award from full to substantial indemnity.

The moving party brought a motion to strike a solicitor's affidavit filed in support of an estates motion.

The moving party argued the affidavit was an improper use of a solicitor's affidavit, contained scandalous and vexatious material, and breached settlement privilege.

The court dismissed the motion, finding the affidavit was properly used to provide non-contentious background facts, did not contain scandalous material, and that any potential settlement privilege issues were too intertwined with non-privileged material to be struck at this stage.

Following a successful application for judicial review where the court found a denial of procedural fairness by the Town, the applicant sought costs on a full indemnity basis for the application and several related motions.

The Divisional Court held it lacked jurisdiction to award costs for the related motions or to set aside a previous costs order.

However, the court awarded the applicant substantial indemnity costs of $44,329.66 for the judicial review application, citing the Town's conduct that unnecessarily lengthened the proceeding and the denial of procedural fairness.

A municipal elector sought a declaration under the Municipal Conflict of Interest Act alleging that the mayor contravened s. 5 by speaking and voting on a motion requiring him to personally repay an alleged municipal budget over‑expenditure.

The court considered whether the application was brought within the limitation period under s. 9 and whether any exceptions under s. 4 applied.

The court held that although the application was timely and the statutory exceptions did not apply, the mayor did not possess a real pecuniary interest because the municipality lacked legal authority to require personal repayment.

As the proposed financial sanction was ultra vires and therefore a nullity, there was no genuine pecuniary interest engaging s. 5.

The application seeking removal from office and restitution was dismissed.

The applicant sought judicial review of a development charges by-law passed by the respondent municipality, arguing that the municipality failed to provide adequate notice of public meetings, thereby denying procedural fairness.

The Divisional Court found that while the municipality failed to strictly comply with statutory notice requirements for the first meeting, procedural fairness was not denied.

However, the court held that the applicant was denied procedural fairness regarding the second meeting because the Mayor had explicitly promised further notice and an opportunity to be heard, which was not provided.

The court declined to quash the by-law but ordered the municipality to refund development charges paid by the applicant and other affected landowners during an 18-month transition period.

Following a prior decision involving an application and contempt motion to enforce compliance with municipal zoning and site alteration by-laws, the court determined the appropriate costs award.

The applicant municipality was substantially successful on the application but unsuccessful on the contempt motion.

Applying the principles governing costs under Rule 57.01 of the Rules of Civil Procedure and relevant appellate authorities, the court emphasized that costs must be fair and reasonable rather than a strict calculation of actual legal fees.

The court reduced the claimed amount due to duplication of counsel and excessive preparation time.

Costs were awarded on a partial indemnity basis in the amount of $30,000 inclusive.

A municipality brought an application seeking declarations and injunctive relief regarding alleged contraventions of zoning and site alteration by-laws relating to two rural properties.

The municipality alleged that the respondents operated a landscape supply operation, stockpiled fill, and used one property as a contractor’s yard and waste disposal site in a rural zone where such uses were not permitted.

The respondents argued that the activities constituted a lawful continuation or expansion of a pre-existing nursery operation and therefore qualified as legal non-conforming use.

The court held that the respondents’ activities constituted a fundamentally different commercial landscape supply and haulage operation rather than an intensification of the prior nursery use.

Declarations and a permanent injunction were granted restraining the unlawful uses and requiring removal of fill, although the municipality failed to prove civil contempt of a prior interlocutory injunction.

The appellants appealed an order dismissing their defamation action for delay.

The action arose from statements published during a 1997 municipal election.

The motion judge found inordinate delay, noting that no steps had been taken by the appellants since 2005 and that a presumption of prejudice arose, reinforced by the loss of witnesses.

The Court of Appeal found no palpable or overriding error in the motion judge's conclusions and dismissed the appeal with costs.

The appellants appealed an order granting a permanent injunction that restrained them from dumping fill or altering the grade of their property.

They argued the application judge erred in finding their activity was not a 'normal farm practice' and in not deferring to the Normal Farm Practices Protection Board.

The Court of Appeal dismissed the appeal, holding that the application judge's factual findings were supported by ample evidence and that he had jurisdiction to grant the injunction since neither party had applied to the Board.

The appellant, a municipal election candidate, appealed a decision of the Ontario Court of Justice directing a compliance audit of her campaign finances.

The applicant elector had alleged the candidate undervalued her campaign office rent, thereby exceeding expense limits.

The compliance audit committee had initially refused the audit, finding no reasonable probability of a breach.

The Divisional Court allowed the appeal, holding that the OCJ judge erred in his application of the reasonableness standard of review by substituting his own interpretation of the valuation requirements under the Municipal Elections Act.

The committee's decision to accept the candidate's explanation and refuse the audit was reasonable and was restored.