Daron L. Earthy

This was the first Case Management Conference regarding appeals of the United Counties of Leeds and Grenville's Official Plan Amendment 5, which updated the Agricultural Area land use designation.

The Tribunal granted participant status to two individuals and scheduled a second CMC.

The Tribunal also directed three self-represented appellants to provide written statements demonstrating they meet the statutory requirements for standing under s. 17(24) of the Planning Act, as they were not listed as having made prior submissions to council.

The applicant challenged the constitutionality of a municipal by-law prohibiting grass over 20 cm and certain nuisance weeds, arguing it infringed his right to maintain a naturalized garden.

The court found the by-law infringed the applicant's freedom of expression under s. 2(b) of the Charter.

The municipality failed to justify the infringement under s. 1, as it provided no evidence that the by-law minimally impaired the right or that the benefits were proportionate to the infringement.

The court struck down the impugned provisions and set aside the work charges added to the applicant's property tax bill, but declined to award Charter damages.

The appellant appealed a judgment of the Superior Court of Justice.

The Court of Appeal found that the mandatory notice requirements for constitutional issues under s. 109 of the Courts of Justice Act had not been complied with, depriving the Attorneys General of the opportunity to participate.

Consequently, the court set aside the order below and directed that any further pursuit of the matter must be reheard before the Superior Court on proper notice.

The applicant challenged the City of Mississauga's Nuisance Weed and Tall Grass Control By-law, arguing it was ultra vires and unconstitutional as an infringement of his right to free expression under section 2(b) of the Canadian Charter of Rights and Freedoms.

The court dismissed the application, finding that while the by-law did infringe on freedom of expression, it was justified under section 1 of the Charter.

The by-law's objectives of public safety, health, and aesthetics were pressing and substantial, and its restrictions were minimally impairing and proportionate.

The court also rejected claims of improper by-law enforcement, lack of qualified inspectors, and insufficient appeal processes.

The plaintiff, 1672736 Ontario Inc. (Dunpar Homes), sued the defendants, Ezio Savini (Chief Building Official) and the City of Mississauga, for over $10 million in damages, alleging misfeasance in public office and negligence due to significant delays in building permit applications and unlawful stop work orders for its Streetsville Centre housing project.

The defendants brought a motion to strike the plaintiff's claim, arguing it disclosed no reasonable cause of action.

The court dismissed the defendants' motion, finding that the plaintiff's pleadings sufficiently disclosed reasonable causes of action for both misfeasance in public office and negligence.

The court ordered the defendants to pay the plaintiff $15,000 in costs for the motion.

The plaintiff slipped and fell on an icy city sidewalk, sustaining a severe proximal humerus fracture that required surgery and resulted in permanent limitations in her right shoulder.

The defendant municipality admitted liability, leaving only damages to be assessed.

The court awarded $125,000 in general damages, $64,723 for future care costs, and $2,724.26 for out-of-pocket expenses, plus a subrogated OHIP claim.

Claims for past and future income loss were dismissed as the plaintiff failed to establish a real and substantial risk of pecuniary loss.

The defendant municipality brought a motion for summary judgment to dismiss the plaintiff's trip and fall claim.

The self-represented plaintiff tripped and fell while stepping off a curb and argued that the height difference exceeded permitted limits under O. Reg. 239/02 and that the lack of colour or height difference was a deficiency.

The court found that the regulation did not apply to curbs and there was no evidence that the curb's condition was a deficiency or contrary to industry standards.

The motion was granted and the action dismissed as there was no genuine issue requiring a trial.

The City of Mississauga sought judicial review of an IPC order requiring the disclosure of an electronic spreadsheet containing personal information of over 11,000 voters from the 2018 municipal election.

The IPC found that disclosure was expressly authorized by section 88(5) of the Municipal Elections Act, which overrides the privacy exemption in the Municipal Freedom of Information and Protection of Privacy Act.

The Divisional Court dismissed the application, finding the IPC's reliance on binding precedent and its distinction between access and use restrictions to be reasonable.

The applicant builder commenced construction on several blocks of a housing development without building permits.

The City's Chief Building Official issued Orders to Comply and Stop Work Orders.

The applicant appealed the orders under section 25 of the Building Code Act, arguing they were impossible to comply with due to the City's delays in issuing permits.

Although the appeal was moot because the orders had since been cleared, the court exercised its discretion to hear it.

The court affirmed the Orders to Comply, finding they reasonably required the applicant to stop illegal construction immediately.

However, the court rescinded the Stop Work Orders because the Act requires a breach of an Order to Comply before a Stop Work Order can be issued, which had not occurred.

The applicant, Julie Daly, commenced an application challenging demolition permits and seeking to restrain eviction proceedings, initially naming only the City of Mississauga, but later joined by NYX Tannery Ltd. Daly subsequently abandoned the application.

NYX Tannery Ltd. sought costs for the abandoned application.

Daly brought an anti-SLAPP motion to dismiss the costs request and sought a stay of costs pending other tribunal proceedings.

The court dismissed Daly's anti-SLAPP motion, finding that a costs hearing was not a "proceeding" against which an anti-SLAPP motion could be brought in these circumstances, especially as Daly initiated the underlying litigation for her own benefit.

The court also dismissed the request for a stay.

Ultimately, the court awarded costs of $30,000 to NYX Tannery Ltd., considering factors such as Daly's improper opposition to joinder, the complexity of issues, and her impecuniosity, which led to a modest reduction from the requested amount.

The applicant, a retail appliance store, sought a declaration that it was permitted to remain open for in-person shopping during the COVID-19 grey lockdown stage in Toronto and Peel.

The applicant argued it qualified as an essential business under O. Reg 82/20, either as a 'hardware store' or as part of the construction supply chain.

The court dismissed the application, finding that the legislature intended the term 'hardware store' to be given its conventional, everyday meaning, which does not include a store exclusively selling home appliances.

The court rejected the applicant's attempt to stretch the plain language of the regulation.

Following a nine-week trial of a residential construction dispute, the successful builder and municipality sought costs against the unsuccessful property owners.

The builder sought elevated costs based on a Rule 49.10 offer to settle and the owners' alleged bad faith conduct.

The municipality sought elevated costs based on non-compliant offers to settle.

The court awarded the builder partial indemnity costs to the offer date and substantial indemnity costs thereafter, finding the owners' conduct did not warrant further elevation.

The municipality was awarded partial indemnity costs throughout.

Costs were fixed at $850,000 for the builder and $100,000 for the municipality.

The applicant, a home appliance retailer, sought an interim injunction to allow its showrooms to remain open despite being ordered to close under Covid-19 public health regulations.

The applicant argued it qualified as an essential 'hardware store' and would suffer irreparable financial harm if closed during the busy December retail season.

The court dismissed the request for interim relief, finding that while there was a serious issue to be tried and potential irreparable harm, the balance of convenience favoured the respondents.

The court held that the public interest in enforcing public health measures to prevent the spread of Covid-19 outweighed the applicant's private economic interests at this preliminary stage.

The builder sued the homeowners for unpaid amounts on a residential construction project.

The homeowners counterclaimed for construction deficiencies and incomplete work, and also sued the municipality for negligent building inspection.

The court found that the parties had an oral contract and that the builder did not breach it by leaving the project when the homeowners stopped paying.

The court dismissed the homeowners' claims for major structural deficiencies, finding the expert evidence of the builder more reliable.

The court also dismissed the negligence claim against the municipality, finding it met the standard of reasonable care.

The homeowners were ordered to pay the builder $558,095.52 for the unpaid balance of the contract and extras, less credits for incomplete work.

The City of Hamilton sought judicial review of a decision by the Mining and Lands Commissioner dismissing its appeal of a conservation authority levy apportioned by the Niagara Peninsula Conservation Authority.

Hamilton argued that the levy should only be calculated using the assessed value of lands within the conservation authority's jurisdiction, rather than the entire municipality's assessment base.

The Divisional Court applied a reasonableness standard of review and upheld the Commissioner's interpretation of the Conservation Authorities Act and Regulation 670, finding that the entire assessment base of the municipality is to be used in the calculation.

The application for judicial review was dismissed.

The plaintiffs in a construction defect action brought a mid-trial motion for leave to file additional and supplemental expert reports.

The plaintiffs sought to introduce a new structural engineering expert to address an allegation of bias raised against their original expert shortly before trial, and to file a supplemental report addressing newly discovered cracks.

The court dismissed the motion, finding that granting leave would cause undue delay and prejudice to the defendants, who would not have sufficient time to obtain responding reports before the trial resumed.

The court also noted that the plaintiffs failed to provide an adequate explanation for the delay in seeking leave.

The Township of Uxbridge brought an application seeking a declaration that the respondents were in civil contempt of two restraining orders issued under the Building Code Act and the Planning Act.

The orders prohibited the respondents from using their rural property as a contractor's yard and required them to clean up debris and commercial vehicles.

The court reviewed photographic evidence and testimony from a municipal enforcement officer, finding that the property remained littered with waste, commercial trucks, and machinery.

The court concluded beyond a reasonable doubt that the respondents intentionally failed to comply with the clear and unequivocal orders, finding them in contempt and scheduling a penalty hearing.

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 municipality sought leave to appeal a decision of the Assessment Review Board that denied its motion to extend the time to appeal property assessments dating back to 2003.

The applicant argued that a palpable error occurred when the respondent incorrectly entered the height of a building as 923 feet instead of 12 feet, resulting in a 272% increase in assessed value.

The Board had refused the extension, finding no evidence of an error for the earlier taxation years.

The Divisional Court granted leave to appeal, finding reason to doubt the legal correctness of the Board's decision because the Board failed to recognize circumstantial evidence of the error and applied an unduly high standard of proof.

The moving party sought a stay of an Ontario Municipal Board hearing pending a motion for leave to appeal the Board's decision dismissing its motion to remove the responding parties' lawyers of record due to an alleged conflict of interest.

The Divisional Court dismissed the motion for a stay, finding that the moving party failed to establish a serious issue to be tried, irreparable harm, or that the balance of convenience favoured a stay.