Eunice Machado

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.

This addendum on costs addresses the determination of costs following an interim motion.

The defendant, Temagami Barge Limited, sought partial indemnity costs of $25,520.68 from the plaintiff.

The plaintiff, His Majesty the King in Right of Ontario, argued for no costs or reduced costs due to mixed results and a vague costs outline.

The court, applying the principles of fairness, reasonableness, and proportionality under section 131 of the Courts of Justice Act and Rule 57.01(1) of the Rules of Civil Procedure, fixed the costs award at $12,500, inclusive of fees, disbursements, and HST, payable by the plaintiff to Temagami Barge Limited.

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 Corporation of the Municipality of Temagami sought a permanent injunction and other orders to enforce its zoning bylaws against Temagami Barge Limited (TBL) and Dashiel Lowery Delarosbel, alleging unlawful commercial uses on Crown land zoned for "Special Management Area (SMA) Zone (Crown Land)".

TBL argued its uses were lawful non-conforming or permissible expansions under the Planning Act.

The court found most of TBL's commercial uses (marina, retail fuel, commercial docking, barge rental, retail aggregate sales, sewage waste disposal) unlawful, not qualifying as lawful non-conforming uses or reasonable expansions of prior industrial uses.

The court granted a permanent injunction against these unlawful uses but denied the request for partial closure of the property and removal of sea-can containers and an office trailer, finding insufficient evidence of public nuisance or contravention for the latter.

The applicant mother brought a summary judgment motion seeking declarations against the respondent father and the Director of Land Titles.

The mother sought declarations that she and the father were spouses, that the Newmarket property was a matrimonial home, and that she was entitled to compensation from the Land Titles Assurance Fund due to a fraudulent mortgage taken by the father.

The court dismissed the claims for declaratory relief against the Director, finding it lacked jurisdiction to determine compensation from the Fund at first instance, as the statutory scheme designates the Director for such determinations, subject to appeal.

The court also found that the mother had not met the summary judgment test for the relationship issues due to conflicting evidence regarding a foreign divorce and separation agreement.

The issue regarding setting aside the TELB mortgage settled.

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 respondents in an application for a permanent injunction regarding zoning by-law compliance brought a motion to compel the applicant municipality to answer undertakings and refusals from a cross-examination.

The court found that all requested items had either been satisfied by the municipality or were protected by litigation privilege, specifically a planning memorandum and notes on inspection photographs prepared for counsel.

The motion was dismissed, though the court ordered a brief supplementary affidavit to confirm the timing and purpose of the photograph notes.

The defendants brought a motion for security for costs against the plaintiff, a single-purpose corporation formed to build a commercial dam.

The plaintiff's project failed after delays in obtaining location approval and the subsequent termination of its feed-in tariff contract.

The court found good reason to believe the plaintiff had insufficient assets to pay costs and that the plaintiff failed to show a good chance of success on the merits to avoid the order.

The court ordered the plaintiff to post security for costs in stages.

The Ministry terminated the respondent contractor's right to work on a dam project and subsequently barred the contractor from bidding on Ministry projects for two years.

The contractor initiated arbitration for several claims under the dam contract, including a claim for damages related to the bidding disqualification (Claim #7).

The arbitrator ruled he had jurisdiction over Claim #7.

The Ministry applied to the Superior Court for a de novo determination of jurisdiction.

The court held that Claim #7 was not arbitrable because it related to decisions made outside the scope of the dam contract's arbitration provision, which was limited to claims arising out of the performance of that specific contract.

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 plaintiff moved to strike numerous paragraphs of the defendants' statements of defence on the basis of res judicata or abuse of process, arguing the defendants were seeking to re-litigate findings made by the Mining and Lands Tribunal (MLT) regarding a hydroelectric dam approval.

The court dismissed the motion, finding that the impugned pleadings fairly responded to the plaintiff's allegations of delay and misfeasance.

Furthermore, the court held that the MLT decision was merely a recommendation to the Minister and not a final judicial decision capable of grounding res judicata.

The motion against the Independent Electricity System Operator was also dismissed as it was not a party to the MLT proceeding.

The appellant, Terry LeBlanc, was the high bidder at a Sheriff's auction for a residential property.

His winning bid of $260,000 was less than 60% of the lowest appraised value ($320,000), leading to the sale's cancellation based on an internal Attorney General policy.

LeBlanc sued the Crown for breach of contract.

The motion judge dismissed the action, finding the contract permitted unilateral cancellation, section 142 of the Courts of Justice Act shielded the respondent, and equitable principles allowed declining enforcement.

The Court of Appeal dismissed the appeal, upholding the motion judge's finding that the auction terms, as announced and posted at the courthouse, allowed for unilateral cancellation up to the time of satisfaction of sale terms, making it unnecessary to address the other grounds.

The plaintiffs sought leave to amend their statement of claim to significantly increase the damages claimed (from $60 million to $662 million) and to elaborate on the theoretical basis for these damages, including through the application of unjust enrichment.

This motion followed a prior summary judgment that established Ontario's liability for breach of contract, with damages to be assessed.

The defendant, Ontario, opposed the amendments, arguing they were barred by res judicata (issue and cause of action estoppel), abuse of process, and constituted a collateral attack, particularly concerning the unjust enrichment claim which was subject to a pending appeal.

The court granted leave for most amendments, finding no non-compensable prejudice.

It clarified that while the unjust enrichment claim as a cause of action was under appeal and could not be bolstered, the amendments could be used to plead theories of damages for the existing contract claim.

The plaintiff purchased a property at a Sheriff's auction and paid the deposit.

The following day, the Sheriff cancelled the sale because the purchase price was below the internal policy threshold of 60% of the debtor's equity.

The plaintiff sued for damages for breach of contract, relying on a notice in the Ontario Gazette that stated the sale was subject to cancellation 'up to the time of sale'.

The court dismissed the action, finding that the actual Notice of Sheriff's Sale of Land, which allowed cancellation 'up to the time of the satisfaction of the sale terms', governed the auction.

The court also held that the Sheriff, as an officer of the court, acted in good faith and was immune from liability under section 142 of the Courts of Justice Act.

The applicant, a condominium corporation, sought to compel the Director of Titles to register an agreement with a commercial owner involving common elements, land transfers, and altered easements.

The Director of Titles opposed, arguing the condominium board failed to follow the required 80% unit holder vote under section 124 of the Condominium Act, 1998, instead relying on section 107.

The court, exercising its broad discretion under section 134 of the Act, found section 124 was the preferable procedure but regularized the process by deeming prior consents as votes in favour, with conditions for notice to unit holders.

No costs were awarded.

The applicants' appeal of a decision by the Director of Land Titles was dismissed.

The respondent sought costs of $26,441.90 on a partial indemnity basis for the appeal, which involved a claim for $420 million in compensation for alleged fraudulent conveyances.

The applicants did not provide costs submissions.

The court applied the factors under Rule 57.01 and the principle that costs awarded to the Crown should not be reduced merely because counsel is a salaried officer.

The court found the requested costs reasonable given the complexity and importance of the issues, and ordered the applicants to pay $26,441.90.

The defendants brought a motion for leave to amend their Statement of Defence to add a counterclaim alleging negligent misrepresentation, abuse of authority, and breach of procedural fairness against the Crown.

The plaintiff opposed the amendment on the basis that the proposed claims disclosed no reasonable cause of action, were statute‑barred under the Limitations Act, constituted a collateral attack on other proceedings, and were partly advanced on behalf of a deceased individual.

Applying Rule 26.01 of the Rules of Civil Procedure, the court held that amendments should be permitted unless non‑compensable prejudice would result and that the proposed claims arose from the same core factual nexus already pleaded.

The court found that the discoverability principle could apply and that any limitation defence should be determined at trial.

Leave was granted to amend the pleading to add the counterclaim, except for claims seeking aggravated, punitive, and exemplary damages.

The plaintiff corporation sued the provincial government for $2.25 billion after the government imposed a moratorium on offshore wind farm development in Lake Ontario.

The government moved under Rule 21 to strike the statement of claim for disclosing no reasonable cause of action.

The court held that the moratorium constituted a core policy decision grounded in public policy considerations and therefore could not ground liability in tort.

Claims for breach of contract, unjust enrichment, expropriation, negligence, negligent misrepresentation, misfeasance in public office, and intentional infliction of economic harm were all found to be inadequately pleaded or legally unsustainable.

The statement of claim was struck and the action dismissed without leave to amend.

A proposed intervener sought leave under Rule 13.01 of the Rules of Civil Procedure to intervene as an added party in a defendant’s pending motion for summary judgment in a civil action.

The proposed intervener was the representative plaintiff in a certified class proceeding involving overlapping factual allegations but different legal theories from the individual plaintiffs’ action.

Although the court found that common issues of fact existed between the proceedings, it concluded that the proposed intervener had no direct interest in the subject matter of the individual action and would not be adversely affected by its outcome.

The court further held that the proposed intervener would not provide a useful contribution to the determination of the summary judgment motion and that intervention would unnecessarily expand the scope of the motion and increase costs.

Leave to intervene was therefore denied.