Daron L. Earthy

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.

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.

The third party contractor sought leave to appeal a decision dismissing its motion for summary judgment against the defendant municipality's third party claim.

The underlying action involved a plaintiff who slipped and fell on an icy sidewalk.

The motions judge had dismissed the summary judgment motion on the basis that it would be unfair to require the defendant to prove the plaintiff's case against the third party without the plaintiff's participation.

The Divisional Court dismissed the motion for leave to appeal, finding no good reason to doubt the correctness of the motions judge's decision and concluding that the motions judge properly applied the summary judgment framework from Hryniak v. Mauldin.

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 a judgment setting aside their beneficial interest in a mortgage on a property owned by a bankrupt limited partnership as an unjust preference under the Assignments and Preferences Act.

The appellants argued there was no intent to give an unjust preference and that the interest was granted as security for a present actual advance of money.

The Court of Appeal dismissed the appeal, finding ample evidence of intent to prefer and agreeing with the motion judge that the surrender of existing promissory notes for new ones did not constitute a present actual advance of money.

The City of St. Catharines sought judicial review of a decision by the Information and Privacy Commissioner ordering the release of a report considered during an in camera municipal council meeting.

The report concerned a property owner's request to acquire city land or obtain an encroachment agreement.

The Divisional Court held that the standard of review was reasonableness for the Commissioner's interpretation of the Municipal Freedom of Information and Protection of Privacy Act, but correctness for the Municipal Act.

Although the Adjudicator erred in finding the meeting was improperly closed under the Municipal Act, the ultimate decision to release most of the report was reasonable because the report did not reveal the actual substance of the in camera deliberations.

The application for judicial review was dismissed.