Jason R. Cherniak

The Ontario Land Tribunal held a fourth Case Management Conference regarding appeals of the City of Richmond Hill's Official Plan Amendment No. 18.6.

The Tribunal issued a Procedural Order and scheduled a seven-day merit hearing to commence by video on April 13, 2026.

The Tribunal held a third Case Management Conference regarding appeals of the City of Richmond Hill's Official Plan Amendment No. 18.6.

Several appellants withdrew their appeals.

The remaining appellants, Harry and Pamela Harakh, consented to scoping their appeal to specific lands.

The Tribunal ordered that OPA 18.6 comes into effect, except for the policies and schedules applying to the scoped lands, and scheduled a motion hearing regarding jurisdiction.

The Ontario Land Tribunal held a second Case Management Conference regarding appeals of the City of Richmond Hill's Official Plan Amendment No. 18.6.

The Tribunal scheduled a subsequent Case Management Conference for February 27, 2025, and ordered the parties to submit a final draft Procedural Order, Issues List, and a draft Order relating to the OPA by December 16, 2024.

A first Case Management Conference was held regarding appeals of the Regional Municipality of York's decision to approve Official Plan Amendment No. 18.6 to the City of Richmond Hill's Official Plan.

The Tribunal confirmed the validity of one appeal filed by email on the final day of the statutory period.

The Tribunal granted participant status to a local resident and party status to several corporate entities.

A motion was scheduled to determine whether the Region properly provided the Notice of Decision to two entities seeking appellant status, considering legislative changes under Bill 23 and Bill 185 that shifted approval authority from the Region to the City.

A second Case Management Conference was scheduled to further refine the issues.

The applicants, a group of condominium owners, challenged a new rule requiring owners to exclusively use Airbnb for short-term rentals, alleging it was discriminatory and improperly implemented.

The application was brought as a dispute over a nuisance under the Condominium Act, 1998.

The Condominium Authority Tribunal dismissed the application, finding that while the rule addressed some nuisances, its broader purpose extended beyond the Tribunal's limited jurisdiction.

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

The appellant, Assignment Credit Corp., was ordered to pay costs to several respondents (MCAP Financial Corporation, Dorr Capital Corporation, and Cherniak Law Professional Corporation).

The court rejected the appellant's argument that prior costs agreements should stand, as they were made before the appellant's non-disclosure of a material fact (that the Mesbur Judgment was obtained on consent) was revealed.

This non-disclosure, which impacted the second issue of the appeal, justified an elevated costs award on a solicitor-client basis for the affected respondents.

The 167 respondents were denied costs due to their own failure to disclose the consent judgment and their underlying financial obligations.

This appeal concerned the priority of various creditors in a garnishment hearing involving payments owed by the City of St. Catharines and Region of Niagara to 1671379 Ontario Inc. under a Brownfield Tax Increment Based Incentive Grant Program Agreement (BTIG).

The primary dispute was between MCAP Financial Corporation, holding a perfected General Security Agreement (GSA), and Assignment Credit Corp. (ACC), asserting priority based on an assigned consent judgment (Mesbur Judgment).

The Court of Appeal affirmed the motion judge's finding that MCAP's perfected GSA had priority for its shortfall judgment over ACC's claim, finding no inconsistency in MCAP's position.

However, the court remitted the issue of priorities among ACC and other unsecured judgment creditors to the motion judge, as it was revealed post-hearing that the Mesbur Judgment was a consent judgment, a fact not disclosed to the motion judge or other creditors, raising new legal arguments regarding the Personal Property Security Act and the Assignments and Preferences Act.

Novelcare Heating & Cooling brought a claim for lien against Erica Herbert and others for the installation of air conditioning units.

Herbert denied the claim and counterclaimed for damages.

The court found Novelcare breached the contract by failing to complete the work (connecting drains and commissioning units) but did not fundamentally repudiate it.

Herbert failed to prove alleged deficiencies in the installed units.

The court awarded Novelcare the unpaid balance of the contract price, reduced by damages for the incomplete work and a discounted value for the lost warranty, resulting in a lien and damages of $16,085.53 for Novelcare.

This decision addresses the defendants' requests for damages and full indemnity costs following the dismissal of the plaintiff's defamation actions under anti-SLAPP provisions (s. 137.1 of the Courts of Justice Act).

The court dismissed the damages claim, finding no bad faith or improper purpose by the plaintiff, and that alleged harm was not directly caused by the proceedings.

However, the court awarded full indemnity costs to the defendants, Matthew Bergman ($50,000) and Gregory Swain ($11,690.56), as statutorily presumed.

The plaintiff, a municipal councillor, brought two defamation actions against several defendants regarding statements made on social media and at a town council meeting.

The defendants moved to dismiss the actions under the anti-SLAPP provisions of the Courts of Justice Act (s. 137.1).

The court found that the expressions related to a matter of public interest.

The plaintiff failed to satisfy the merits-based hurdle, as the defendants had valid defences of justification, fair comment, and qualified privilege.

Furthermore, the plaintiff failed the public interest hurdle, as she could not demonstrate that the harm she suffered outweighed the public interest in protecting the defendants' expressions.

Both actions were dismissed.

Following a two-phase hearing regarding the Yonge & Bernard Key Development Area Secondary Plan, multiple parties brought motions for costs against North Elgin Centre Inc. (NEC).

The moving parties alleged that NEC's counsel engaged in unreasonable, frivolous, and vexatious conduct, including refusing to scope issues, failing to call evidence after indicating an intention to do so, conducting improper cross-examinations, and repeatedly ignoring Tribunal directions.

The Tribunal agreed, finding NEC's conduct to be reprehensible and outrageous.

Costs were awarded to the moving parties on a full indemnity basis, totaling $202,890.63.

Various creditors of 1671379 Ontario Inc. and Manuel Elkind brought motions to determine priority status for garnishment payments owed by the City of St. Catharines and Region of Niagara under a Brownfield Tax Increment Based Incentive Grant Program Agreement (BTIG).

The primary dispute was between MCAP Financial Corporation, which held a registered and perfected security interest under the Personal Property Security Act (PPSA), and Assignment Credit Corp. (ACC), which claimed priority based on an assignment of a prior judgment.

The court found that MCAP's security interest, including the proceeds of the BTIG, maintained its priority status despite being reduced to a shortfall judgment.

The court dismissed ACC's claim for priority, finding that its assigned interest was subject to MCAP's prior perfected security and that ACC's claim should be limited to $400,000 as per a "Side Deal" in a previous endorsement.

The plaintiff entered into an agreement to purchase a newly built home from the defendant.

After discovering the home would not have a garage door access as expected, the plaintiff sent an angry email threatening litigation.

The defendant treated this as an anticipatory breach, refused to close the transaction, and sold the property to a related charity.

The court found that the plaintiff's email was an idle threat and did not amount to repudiation or a breach of the duty of good faith.

The defendant's refusal to close constituted a repudiation of the contract.

The plaintiff was awarded damages assessed as of the date of breach.

The Ontario Land Tribunal heard Phase 2 of appeals regarding the Yonge and Bernard Key Development Area (KDA) Secondary Plan and Zoning By-law in the City of Richmond Hill.

The hearing focused on site-specific development applications and policies for the eastern quadrants and the Di Pede lands in the northwest quadrant.

The Tribunal approved the City's proposed modifications, which were supported by expert planning, transportation, and environmental evidence.

The Tribunal upheld the Greenway System designation and natural hazard buffer requirements for the northeast quadrant, dismissing the appeals of North Elgin Centre Inc. (NEC), which failed to call any evidence.

All other appeals were dismissed, bringing the Secondary Plan and Zoning By-law into effect for the remaining lands.

The Ontario Land Tribunal held a Case Management Conference to settle the Issues and Procedural Order for Phase 2 of a hearing regarding multiple appeals of Official Plan and Zoning By-law amendments in the Town of Richmond Hill.

The Tribunal approved the City's proposed Hearing Plan, which divided the hearing into four sub-phases, and rejected attempts by North Elgin Centre Inc. to expand the issues list to include area-wide matters such as the location of the Bernard Bus Terminal.

The Tribunal also corrected a minor omission in a previous zoning by-law amendment and dismissed a renewed motion for recusal.

The Ontario Land Tribunal held a Case Management Conference regarding appeals against the City of Toronto's approval of Official Plan Amendment No. 499 (the 'Golden Mile' secondary plan).

The Tribunal granted party status to three non-appellant entities, subject to their sheltering under existing issues.

The Tribunal noted that the parties have agreed to Tribunal-led mediation and found it premature to require the preparation of an Issues List until mediation is completed.

A second Case Management Conference was scheduled for October 2021.

The moving parties sought leave to appeal a decision regarding the use of residential premises for short-term rentals.

The Divisional Court dismissed the motion for leave to appeal with costs.

The court declined to provide substantive reasons, noting the common appellate practice of not giving reasons on motions for leave to appeal and the potential for further administrative proceedings on the underlying issue.

The appellant appealed the property assessment of their waterfront residential property for the 2019 and 2020 taxation years.

The Municipal Property Assessment Corporation (MPAC) assessed the property at $1,090,000, while the appellant argued for a value of $510,000.

The Assessment Review Board analyzed comparable sales and determined the correct current value to be $740,000.

Applying an equitable reduction pursuant to section 44(3)(b) of the Assessment Act, the Board further reduced the assessment to $670,000.

The applicant sought to clarify that an outstanding judgment of $63,538.56, arising from a global settlement in a divorce proceeding, constituted lump sum spousal support, thereby surviving the respondent's assignment in personal bankruptcy.

The respondent sought to terminate garnishment proceedings, asserting the debt was an equalization payment extinguished by bankruptcy.

The court found the outstanding amount to be lump sum spousal support, citing the applicant's entitlement to support in a lengthy marriage, the settlement's intent, the respondent's non-disclosure regarding mortgage refinancing, and the protective intent of bankruptcy legislation for support obligations.

The court dismissed the respondent's attempt to challenge the consent judgment and awarded costs to the applicant.

The applicant sought an order to relocate an existing access easement over its property, which was owned by the respondent, to enable a larger commercial development.

The respondent opposed the relocation.

The court examined the statutory provisions for modifying or discharging conditions or covenants annexed to land under the Conveyancing and Law of Property Act and the Land Titles Act.

It emphasized the narrow judicial discretion to intervene, particularly when the servient owner demonstrates any prejudice.

The court found that the proposed relocation would cause potential prejudice to the respondent due to increased traffic congestion from parking on both sides of the easement and potential adverse impacts on its mortgage financing.

Consequently, the application to relocate the easement was dismissed.