Jacob R.W. Damstra

In this certified class action concerning business interruption insurance claims related to COVID-19 and civil authority orders, the plaintiffs moved on consent for approval of a Notice of Proposed Settlement and a Pre-Approval Notice Plan.

The court approved the notice and plan, finding them informative and consistent with the prior successful certification notice program.

The court also ordered that the action be treated as a Class Proceedings matter despite retaining a Commercial List file number.

The plaintiffs in this certified class action moved on consent for approval of a Notice of Proposed Settlement and a Pre-Approval Notice Plan.

The court found the proposed Notice appropriately informative and the pre-approval plan for dissemination consistent with the successful certification notice program.

The motion was granted, and the Notice of Proposed Settlement and the Pre-approval Notice Plan were approved.

The plaintiff moved for summary judgment on a defamation action arising from a Facebook post published by the defendant, a municipal councillor, and also sought dismissal of a counterclaim alleging Charter breaches, malicious prosecution, misfeasance in public office, and reprisal.

The court held that the online post conveyed defamatory imputations of dishonesty, profiteering, and mental instability against the plaintiff, a senior executive of a child welfare agency, and that no genuine issue requiring a trial arose on any pleaded defence, including justification, fair comment, responsible communication, qualified privilege, statutory immunity, Charter-based arguments, or reprisal under the Human Rights Code.

Applying Hryniak, the court found the paper record sufficient for a fair and proportionate adjudication.

The plaintiff recovered $25,000 in general damages and $8,000 in aggravated damages, while punitive damages and permanent injunctive relief were refused.

The counterclaim was summarily dismissed as meritless and unsupported by evidence.

The appellants appealed the denial of a minor variance and the refusal of a development permit to replace an existing deck with a larger, engineered deck located at a 0m setback within a dynamic beach hazard area on Lake Huron.

The appellants argued that existing timber cribs mitigated the dynamic beach processes, making the development safe.

The Tribunal dismissed both appeals, finding that the proposal was not consistent with the Provincial Policy Statement, 2024, or local planning policies, which strictly prohibit new development in dynamic beach hazard areas regardless of existing shoreline protection.

The District Municipality of Muskoka brought a motion to dismiss an appeal filed by Beach Road Villas Inc. regarding the lapsing of a draft plan of subdivision.

The appellant argued that the District's refusal to extend the lapsing date amounted to a withdrawal of approval, or alternatively, that the lapsing date was automatically extended by staff correspondence.

The Tribunal found that lapsing provisions are not conditions under the Planning Act, the District's actions did not constitute a withdrawal, and the Tribunal has no authority to extend a draft plan that has already lapsed.

The motion was granted and the appeal was dismissed.

The moving party sought panel review after a chambers judge refused to lift an automatic stay pending appeal.

Applying the deferential review framework for s. 7(5) CJA panel review, the court found no error in principle or unreasonable result and dismissed the review motion.

The appellants appealed the denial of a minor variance by the Municipality of Lambton Shores and the refusal of a development permit by the Ausable Bayfield Conservation Authority regarding the replacement of a deck on a shoreline property.

At a case management conference, the Ontario Land Tribunal ordered that the two appeals be heard together and issued a procedural order setting the hearing dates and procedural requirements.

The appellant, Tek Holdings Limited, appealed an Order to Comply issued by the Chief Building Official requiring construction of a covered manure storage facility for a broiler chicken barn.

The appellant had initially obtained a building permit for an uncovered manure storage but was required to obtain a minor variance after a planning department error regarding Minimum Distance Separation (MDS) setbacks was discovered.

The Committee of Adjustment granted the variance on condition that the manure storage be covered.

The appellant subsequently constructed the facility with an uncovered manure storage, contrary to the revised permit.

The court dismissed the appeal, finding that the Order to Comply was reasonable and within the Chief Building Official's authority under the Building Code Act, 1992.

The applicant appealed the non-decision (indefinite deferral) of the City of Guelph's Committee of Adjustment regarding an application for minor variances to reduce permanent and temporary parking requirements for a residential development.

The Tribunal first determined it had jurisdiction to hear the appeal, finding the indefinite deferral was tantamount to a refusal.

On the merits, the Tribunal authorized the variances, finding they met the four-part test under section 45(1) of the Planning Act.

The Tribunal accepted the applicant's expert evidence that the reduced parking rates were justified by site-specific studies, supported transit use, and avoided an oversupply of parking.

The variances were approved subject to conditions, including the provision of additional temporary spaces and transit passes.

A residential condominium developer sought a declaration that communications from the Chief Building Official regarding parking requirements constituted appealable orders or decisions under the Building Code Act.

The developer argued that emails threatening permit revocation if occupancy permits were requested without adequate parking prevented it from applying for occupancy.

The court found that the emails were pre-emptive communications indicating the CBO's future intentions, not final decisions on actual occupancy permit applications.

As no formal decision refusing occupancy had been made, the court lacked jurisdiction to intervene.

However, the court maintained a temporary parking ratio of 1.1 spaces per unit pending the Ontario Land Tribunal's decision on the developer's parking variance appeal.

This is a decision on costs following a judgment in which both parties received monetary awards, but the net result favoured College Grain Inc. The court considered the parties’ offers to settle, the proportionality of costs, and the policy behind the Simplified Rules.

Ultimately, the court awarded College Grain Inc. $50,000 plus HST for fees and $35,886.52 for disbursements, for a total of $92,386.52, to be paid by Wilhelm Concrete.

The plaintiff contractor sued for unpaid invoices relating to the construction of concrete grain silos.

The defendant grain company counterclaimed for damages, alleging construction deficiencies caused water infiltration and grain spoilage.

The court found that the contractor's defective workmanship caused water infiltration in two silos.

The court awarded the defendant damages for repair costs, increased labour, and future repairs, while dismissing claims for spoiled grain due to lack of documentary evidence.

The court also held that the defendant's counterclaim was not statute-barred because the limitation period did not commence while the contractor was actively attempting to repair the defects.

The plaintiff was awarded its unpaid invoices, but the individual defendant was found not personally liable.

The respondents failed to close a residential real estate transaction, and the appellants (vendors) sued for breach of contract.

At trial, the judge awarded damages based on an appraiser's assessment of fair market value rather than the actual resale price, finding the appellants failed to mitigate their damages.

The Divisional Court allowed the appeal, holding that the trial judge erred in law by bypassing the resale price as the presumptive fair market value and by relying on expert evidence that exceeded the appraiser's qualifications regarding marketing practices.

The Court awarded damages based on the difference between the original contract price and the resale price, plus certain expenses and legal fees.

The Court of Appeal for Ontario reviewed the parties' costs submissions following an appeal.

The court determined that it was not an appropriate case for costs and, accordingly, made no order for costs of the appeal.

The appellants, Fredrick and Patricia Kentner, appealed the summary dismissal of their first appeal to the Provincial Offences Appeal Court, which concerned convictions and a sentence for environmental offences related to unlawful fill operations.

The appeal was based on claims of ineffective assistance of counsel by their paralegal and errors in the original conviction and sentence.

The Court of Appeal dismissed the appeal, finding no ineffective assistance as the appellants' failure to pay fines (a mandatory condition for appeal) was a deliberate choice unrelated to the paralegal's conduct, and a waiver application would have had no prospect of success.

The court also found no merit in the conviction appeal, affirming the trial judge's reliance on regulatory maps for jurisdiction, and no basis to interfere with the sentence, which included a $25,000 fine and a property rehabilitation order.

The appellant appealed the City of London Committee of Adjustment's decision refusing a minor variance to reduce the minimum lot area per unit required to convert an existing four-plex into an eight-plex.

The City did not contest the appeal.

Relying on uncontroverted expert planning evidence, the Tribunal found that the proposed variances met the four tests under section 45(1) of the Planning Act, as they maintained the general intent and purpose of the official plan and zoning by-law, were desirable for the appropriate development of the land, and were minor in nature.

The appeal was allowed and the variances were authorized.

The applicant appealed the Township's Committee of Adjustment decision refusing a minor variance application to convert a cottage property into a seasonal recreational camp.

The parties reached a settlement prior to the hearing.

Based on uncontroverted expert planning evidence, the Tribunal found that the requested variances satisfied the four tests under section 45(1) of the Planning Act.

The appeal was allowed and the variances were authorized subject to site plan control and other conditions.

The insured property owner appealed the dismissal of its claim for coverage following a wall collapse, while the insurer appealed the finding of coverage for a subsequent arson fire at the same vacant building.

The Court of Appeal dismissed both appeals.

The wall collapse was not proven to be a fortuitous event.

For the fire loss, the insurer was bound by promissory estoppel preventing reliance on a vacancy exclusion, and its unilateral attempt to amend the policy to exclude arson was invalid under s. 124 of the Insurance Act for lack of written consent.

The Ontario Land Tribunal issued an amending decision to correct a typographical error in its previous decision dated July 4, 2024.

The amendment corrected the date of the Draft Plan referenced in the order approving the plan of subdivision.

The applicant appealed the City's failure to make a decision on applications for an Official Plan Amendment, Zoning By-law Amendment, and Draft Plan of Subdivision to facilitate the redevelopment of a former golf course into a 44-lot residential subdivision.

Prior to the hearing, the parties reached a settlement with revised plans.

The Tribunal accepted uncontested expert planning evidence that the revised applications were consistent with provincial policies and represented good land use planning.

The appeals were allowed in part to implement the settlement.