E. Marshall Green

The Ontario Land Tribunal issued a procedural order to govern the proceedings for appeals by Fowler Construction Company Ltd. regarding the Township of Ramara's refusal to amend its Official Plan and Zoning By-law to permit the expansion of an existing licensed quarry.

The order sets out the hearing dates, issues list, order of evidence, and filing deadlines for witness statements and expert reports.

The Ontario Land Tribunal issued a procedural order for a 25-day video hearing regarding appeals by Fowler Construction Company Ltd. against the Township of Ramara's refusal to amend its Official Plan and Zoning By-law.

The amendments are sought to permit the expansion of an existing licensed quarry area.

The order establishes the hearing schedule, the issues list, and the procedural requirements for the parties, including the exchange of expert witness statements and visual evidence.

Nicholyn Farms Inc. brought a motion to adjourn the hearing of appeals regarding County of Simcoe Official Plan Amendment No. 2 (COPA 2) and to consolidate it with the hearing for appeals of County Official Plan Amendment No. 5 (COPA 5).

The County of Simcoe and the Ministry of Municipal Affairs and Housing opposed the motion, arguing that COPA 5 was not properly appealed and that an adjournment would cause significant prejudice and delay to the County's waste management objectives.

The Tribunal found that an adjournment would prejudice the County and the Ministry, and that the moving party failed to justify the delay.

The motion was dismissed.

The Ontario Land Tribunal issued a procedural order to govern the proceedings for appeals by the applicant regarding the municipality's refusal to amend its Official Plan and Zoning By-law.

The amendments are sought to permit the expansion of an existing licensed quarry area.

The order sets out the organization of the hearing, requirements before the hearing, the parties and participants, the issues list, and the order of evidence for a 25-day video hearing scheduled to commence in February 2022.

The Ontario Land Tribunal issued a procedural order for the hearing of appeals concerning the Township of Springwater's proposed Official Plan Amendment No. 2 and Zoning By-law Amendment, which would permit a waste management facility in the Freele County Forest.

The order sets out the organization of the hearing, which will be conducted by videoconference in two parts, and establishes the requirements for the parties before the hearing, including the exchange of witness lists, expert witness meetings, and the filing of participant statements.

The applicants, two municipalities, sought leave to appeal decisions of the Ontario Municipal Board that granted them party status but limited the evidence they could present regarding a proposed aggregate pit.

The Board restricted their evidence to the incremental impact of truck traffic on their roads, preventing them from comparing alternative haul routes.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the Board's decisions as the limitations effectively prevented the Board from considering mandatory statutory factors under the Aggregate Resources Act, thereby breaching the rules of natural justice and procedural fairness.

The parties agreed that the respondent should have its costs fixed at $66,191.27, inclusive of disbursements and relevant taxes.

The Court of Appeal ordered costs in that amount.

The appellants operated businesses leasing mobile signs.

The respondent municipality enacted a new sign bylaw in 2002 and enforced it by confiscating the appellants' signs.

The appellants sued for negligent enforcement, arguing their signs were exempt because the previous bylaw had expired, leaving their signs lawfully in place when the 2002 bylaw took effect.

The trial judge dismissed the action.

On appeal, the Court of Appeal affirmed the dismissal, finding no evidence that the municipality breached the standard of care or acted unreasonably in enforcing the bylaw, as the municipality had a viable argument for the bylaw's enforceability at the time.

The respondents in an appeal brought a motion to introduce fresh evidence regarding subsequent actions the Township proposed to take to remedy inconsistencies in its zoning by-laws.

The Divisional Court dismissed the motion, finding that the potential remedial work by the Township would not assist in interpreting the by-law under review.

The court held that the proposed evidence did not meet the test for fresh evidence, as it was not necessary to deal fairly with the issues on appeal and declining to admit it would not lead to a substantial injustice.

The appellants appealed an order recognizing the respondents' common user rights over narrow parcels of land fronting Lake Simcoe, known as the 'Slivers'.

The application judge found that the respondents, as owners of lots in the subdivision, had openly and continuously used the Slivers since 1950, satisfying the requirements under the Registry Act and Land Titles Act.

The Court of Appeal dismissed the appeal, finding no error in the application judge's assessment of the uncontradicted affidavit evidence and declining to restrict the user rights to bathing purposes.

Following the dismissal of the plaintiffs' $7.5 million action for negligent enforcement of a sign by-law, the successful defendant municipality sought costs on an elevated partial indemnity basis.

The plaintiffs argued for a distributive costs order or no costs, claiming the action was public interest litigation.

The court rejected the public interest argument and declined to make a distributive costs order, but reduced the defendant's fees by 25% to account for time spent on an unsuccessful defence regarding a 1988 by-law.

The court also declined to award elevated costs, finding no reprehensible conduct by the plaintiffs.

Costs were fixed at $275,000 for fees and $79,510.26 for disbursements.

Following the dismissal of the applicant's motion for an interlocutory injunction to stay a decision lifting a stop work order, the court determined costs.

The applicant argued it was a public interest litigant and should not pay costs.

The court found the applicant's strategy of narrowing issues to natural justice lacked evidentiary support on the merits and that it was irresponsible to hide behind a lack of funds after asserting it could meet undertaking requirements.

Costs were fixed at $27,000 payable to the developer on a substantial indemnity basis and $5,000 payable to the municipality.

The applicant sought an interlocutory injunction to stay a decision of the County Council lifting a stop work order and confirming a special permit that allowed the respondent landowner to cut trees on its property.

The applicant argued that the County Council denied it natural justice by accepting reply evidence without allowing rebuttal and by allowing two councillors who had not heard the evidence to vote.

The court dismissed the motion, finding no serious issue to be tried regarding natural justice, as the reply evidence was responsive to unexpected assertions and the two mistakenly recorded votes made no mathematical difference to the outcome.

The court also found the applicant failed to demonstrate irreparable harm or that the balance of convenience favoured an injunction.

The plaintiffs, who operated mobile sign leasing businesses, sued the City of Mississauga for $7.5 million in damages for negligent enforcement of a 2002 sign bylaw.

They argued their signs were 'grandfathered' and exempt from the new bylaw because the previous bylaw had expired, leaving a period of no regulation.

The court found that while the signs were lawfully erected and grandfathered, the City did not owe a private law duty of care to the plaintiffs.

The City's actions in publicizing and implementing the bylaw were protected policy decisions, and finding a duty of care would expose the City to indeterminate liability.

The action was dismissed.

Following a successful application confirming user in common rights on a subdivision plan, the applicants sought costs of $51,593.86.

The respondent landowners argued the amount was excessive for a one-day hearing.

The respondent municipality also sought costs against the respondent landowners.

The court awarded the applicants $45,000 in partial indemnity costs, finding the claimed amount excessive despite the complexity of the historical real estate issues.

The municipality was awarded $2,500 in costs for its helpful submissions, though its costs were reduced because it remained adverse in interest to the applicants until the morning of the hearing.

The applicants, owners of lots on a 1950 plan of subdivision, sought a declaration that certain lots designated as an 'area of user common to each property owner' remained subject to those rights.

The respondent owners of the fee simple in those common lots argued the rights had expired under the Registry Act and were extinguished upon conversion to the Land Titles system.

The court held that the dedication created valid, subsisting quasi-public rights and easements that were openly enjoyed and thus saved from expiry under the Registry Act.

The court declared the lands remain subject to the applicants' rights and prohibited the respondents from interfering with them.

The appellants appealed a decision finding that the respondent's proposal to increase the occupancy of townhouse units to seven students, each with individual leases, did not constitute a boarding, lodging or rooming house under the Building Code.

The Court of Appeal allowed the appeal, finding that the proposed use provided lodging for more than four persons in return for remuneration, thereby meeting the definition under the Building Code.

The units as constructed could not accommodate the increase without violating fire exit requirements.

Following a prior decision allowing the applicant’s application in full and dismissing the municipality’s counter-application, the court determined the appropriate costs award.

The applicant sought over $55,000 on a full indemnity basis.

Applying Rule 57.01(1) of the Rules of Civil Procedure and the principles governing partial indemnity costs, the court considered the complexity of the issues, extensive affidavit evidence and cross‑examinations, the economic significance of the dispute, and adjustments required for overlapping work, calculation errors, and expert-related disbursements.

The court declined to award full indemnity costs and reduced certain fees and disbursements.

Costs were fixed on a partial indemnity basis in the amount of $38,799.91 payable within 30 days.

The applicant constructed two multi-unit residential buildings and sought to rent each unit to up to seven students.

The City opposed, arguing that renting to more than four students would classify the units as 'boarding, lodging or rooming houses', which were not permitted in the zone, and would violate the Building Code.

The applicant sought declarations that the project was a 'stacked townhouse' and could legally rent to seven occupants per unit.

The court found that the students living together constituted a 'single household unit' and therefore the units were 'dwelling units' rather than boarding houses under both the zoning by-law and the Building Code.

The court granted the applicant's declarations and ordered the City to issue a final occupancy permit without conditions on the number of occupants.