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 moving party sought leave to appeal the decision of Nadeau J. dated August 22, 2024.

The Divisional Court dismissed the motion for leave to appeal.

As no Costs Outline was provided, the court ordered no costs.

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.

Following a successful claim for injurious affection where no land was taken, the claimant sought costs under section 32(1) of the Expropriations Act.

The respondent conceded liability for costs but disputed the reasonableness of several specific items, including costs for a change of counsel, prior counsel assessment, and various motions.

The Tribunal applied the principle that expropriation costs are awarded on a full indemnity basis subject to reasonableness.

The Tribunal disallowed costs related to the change of counsel and assessment, reduced costs for bill preparation and cost recovery, but allowed the majority of the disputed motion and consulting costs.

The respondent was ordered to pay $355,603.68 in costs plus $7,500 for the costs motion.

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 moving parties brought a motion for leave to appeal an order dated January 25, 2024.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving parties to pay costs of $5,000 to the responding party.

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 moving party brought a motion for leave to appeal an earlier order.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay costs of $5,000 to each of the two responding parties.

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 Claimant sought compensation for injurious affection under the Expropriations Act after the Ministry of Transportation closed one of two driveway accesses to its mixed-use property during highway improvement works.

The Respondent argued the closed access and the commercial use of the property were illegal, precluding compensation.

The Tribunal found that the access and commercial use were legal, having been implicitly approved and in existence for decades.

Applying the test from Antrim, the Tribunal determined the closure caused a substantial and unreasonable interference with the Claimant's use of the property.

The Tribunal preferred the Claimant's 'Cost to Cure' appraisal approach and awarded $149,160 to construct an internal loop driveway, plus $27,500 for disturbance damages related to the land required for the new driveway.

The Claimant sought compensation for injurious affection after the Ministry of Transportation closed one of two accesses to its mixed-use property during highway improvements.

The Ministry argued the closed access and the commercial use of the property were illegal, precluding compensation.

The Tribunal found that the access and commercial use were legal and grandfathered.

Applying the test for injurious affection where no land is taken, the Tribunal awarded the Claimant $149,160 based on a 'cost to cure' approach to construct an internal loop driveway, plus $27,500 for disturbance damages.

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 claimant sought compensation for injurious affection after the Ministry of Transportation removed an access point to its property during highway improvements.

Prior to the scheduled hearing, the hearing was adjourned due to a medical emergency involving the respondent's key witness.

The parties subsequently brought three procedural motions.

The Tribunal declined to strike the respondent's late-filed witness statement but limited the witness's testimony to factual matters.

The Tribunal granted the respondent leave to withdraw deemed admissions, finding a triable issue, a reasonable explanation for the delay, and no prejudice to the claimant.

Finally, the Tribunal awarded the claimant $5,500 in costs thrown away to indemnify it for wasted preparation time resulting from the adjournment.

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 Claimant brought a claim for compensation under the Expropriations Act arising from the closure of an access point during highway construction.

Following an urgent adjournment requested by the Respondent due to a witness's hospitalization, the Tribunal held a case management conference to schedule new dates.

The Tribunal scheduled a motion date to hear the Claimant's motion to strike, the Claimant's motion for costs thrown away, and the Respondent's motion to withdraw deemed admissions.

A new five-day hearing on the merits was also scheduled.

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 applicant private schools sought judicial review of Ontario's decision to allocate the federal 'Safe Return to Class Fund' exclusively to public schools.

Ontario raised preliminary issues of timeliness and justiciability.

The Divisional Court dismissed the application, holding that the expenditure of public funds is a discretionary public policy decision made pursuant to the Crown's common law spending powers.

The court found that the funding allocation was a core policy choice and therefore not justiciable absent jurisdictional error, a constitutional challenge, bad faith, or irrationality, none of which were established.