Jeff G. Cowan

The applicant First Nation sought judicial review of a decision by the Director of Exploration granting a mining exploration permit to a corporate respondent on lands within the applicant's traditional territory.

The applicant argued the Crown failed to properly discharge its duty to consult.

The Divisional Court found that the Crown and its delegate had created clear expectations for a community meeting and a Memorandum of Understanding, but abruptly changed course without explanation to expedite the permit for commercial reasons.

The court held that the consultation process lacked genuine engagement and failed to maintain the honour of the Crown.

The application was granted, the permit was set aside, and the matter was remitted for adequate consultation.

The applicants sought judicial review of a municipal bylaw that exempted agricultural vehicles from heavy vehicle restrictions on a local ferry.

The applicants argued the municipal council improperly fettered its discretion and acted under a misapprehension of the Farming and Food Production Protection Act, 1998.

The Divisional Court dismissed the application, finding the council had the jurisdiction to ease the restrictions it previously imposed, did not fetter its discretion, and the bylaw was not void for vagueness.

The parties brought competing applications seeking the court’s direction regarding the interpretation of provisions in a commercial lease governing the determination of fair market land value for rent recalculation.

The lease required each party to appoint an appraiser and, if the resulting valuations differed by more than ten percent, for the two appraisers to jointly select a third appraiser.

After conflicting valuations triggered the third-appraiser mechanism, the tenant proposed altering the process to appoint a legally trained decision-maker who was not a licensed appraiser.

The court held that the lease clearly required the appointment of a qualified appraiser experienced in valuing commercial property in Toronto and that the proposed alternative would improperly amend the agreement without the landlord’s consent.

The court therefore directed that the previously identified qualified appraiser be appointed to proceed with the appraisal process.

The appellant association appealed a decision of the Deputy Director of Titles (DDT) fixing the southern waterfront boundaries of two lots on a registered plan of subdivision at the water's edge instead of the 'high water mark' shown on the plan.

The appellant argued the DDT exceeded her jurisdiction and that her decision was unreasonable.

The Divisional Court dismissed the appeal, finding that the DDT reasonably interpreted her jurisdiction under the Boundaries Act to determine the true intention of the original subdivider.

The Court held that the DDT's conclusion that the subdivider intended to convey all the land he owned to the water's edge, but mistakenly believed the Crown owned the land between the high water mark and the water's edge, was supported by the evidence and reasonable.

Two applicants sought judicial review of municipal by-laws implementing a volume-based solid waste user fee and associated rebate program introduced by the City of Toronto.

The applicants argued that the waste collection charge was in substance an unlawful tax affecting provincial tax ratio rules and that the rebate constituted an impermissible redistribution of property taxes contrary to the City of Toronto Act, 2006.

The court held that the waste charge was a valid user fee because a sufficient nexus existed between the amount collected and the cost of providing waste services.

The court further held that the rebate was properly characterized as a municipal grant authorized under s. 83 of the City of Toronto Act, 2006 rather than a tax rebate.

The applications to quash the relevant by-law provisions were dismissed.

The applicants appealed the assessment of numerous commercial investment properties, arguing they should be assessed in the farm property class under O. Reg. 282/98.

The Tribunal stated a case to the Divisional Court asking whether the phrase 'land is owned by' in s. 8(2)3 of the regulation includes both beneficial and legal ownership.

The Divisional Court applied the modern approach to statutory interpretation and concluded that the phrase is restricted to legal ownership, relying on the presumption of consistent expression and the presumption against tautology within the legislative scheme.

The Township of Tiny appealed a decision of the Deputy Director of Titles under the Boundaries Act, which confirmed the westerly boundary of a beachfront cottage lot to be the water's edge of Lake Huron.

The Divisional Court found the Deputy Director's decision unreasonable, as it ignored the commercial reality of the original subdivision plan, which intended to reserve the beach for the use of back lot owners and the public.

The appeal was allowed, and the boundaries were confirmed as depicted on the original Plan of Subdivision, which set the boundary at a monumented straight line inland from the water's edge.

The Municipal Property Assessment Corporation (MPAC) brought a motion to stay a 16-day hearing before the Assessment Review Board pending an application for judicial review.

MPAC argued the Board improperly intervened by allowing the complainants to re-open their case.

The Divisional Court dismissed the motion, finding that MPAC failed to raise a serious argument that exceptional circumstances justified interlocutory judicial review before the administrative process concluded.

The court also found no irreparable harm and that the balance of convenience favoured proceeding with the scheduled hearing.

The appellants challenged the municipal tax assessments of several bank tower properties in downtown Toronto.

The Assessment Review Board initially ruled that the phrase 'fee simple, if unencumbered' in the Assessment Act required the properties to be valued as if they were vacant.

The Divisional Court overturned this, holding that the standard of review was correctness and that the Board erred in law.

The Court of Appeal upheld the Divisional Court's interpretation, confirming that income-producing properties should be assessed using market rents and a normal vacancy rate, rather than assuming they are entirely vacant.

The appeal was allowed only to the limited extent of returning the matter to the same panel of the Board rather than a new one.

The appellant appealed a declaration that he had no right, title, or interest in residential buildings located on lands owned by the respondents.

The appellant relied on purported bills of sale and rental leases, which the application judge found invalid.

On appeal, the appellant alternatively argued for a month-to-month tenancy.

The Court of Appeal dismissed the appeal, finding ample evidence to support the application judge's findings and no evidence to support a tenancy of any kind.

The applicant, Geranium Corporation, sought judicial review of a decision by the Information and Privacy Commissioner exempting a letter submitted by a resident to the Town of Innisfil from disclosure under s. 14(1) of the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA).

The applicant argued that the non-disclosure deprived it of knowing allegations made against it prior to a town council decision.

The Divisional Court dismissed the application, finding the Commissioner's interpretation of MFIPPA reasonable.

The court noted that the Commissioner's decision did not prevent the Ontario Municipal Board from ordering production of the document in related proceedings.

The appellants sought a refund of business taxes for the years 1994 to 1996 under s. 443 of the Municipal Act, arguing they were overcharged due to an error of fact in their assessment classification.

The City denied the application, and the Divisional Court dismissed the subsequent application for judicial review.

On appeal, the Court of Appeal held that the incorrect categorization of the business was an error of fact, not an error in judgment, as the Assessment Commissioner was not aware of the full facts at the time of the original assessment.

The Court also found that a letter from the acting Regional Assessment Commissioner constituted valid confirmation of the error and that the City was the proper respondent.

The appeal was allowed and the City was ordered to consider the refund application.

The appellant tenant appealed a decision interpreting a commercial lease provision regarding the reimbursement of realty taxes.

Following 1997 amendments to the Assessment Act, separate tax assessments for individual businesses in the shopping plaza were abolished, resulting in an 'en bloc' assessment for the entire property.

The landlord applied a formula in the lease designed for such an eventuality to allocate taxes.

The Court of Appeal upheld the application judge's finding that the clear language of the lease anticipated this scenario, and the formula was correctly applied since the tenant had not obtained a separate assessment.

Following the release of reasons disposing of the appeals regarding an Indigenous land claim, the Court of Appeal determined the costs of the proceedings.

The court ordered the appellant to pay 50% of the federal and provincial crowns' costs of the appeals on a party and party basis, noting the federal crown's unsuccessful arguments regarding the validity of the land surrender.

The class representatives, including the railway company, were awarded 100% of their costs for both the summary judgment motions and the appeals on a party and party basis.

The court directed that all costs be assessed rather than fixed.

An Indigenous band appealed from a summary judgment disposition concerning reserve lands sold in the 19th century without a lawful formal surrender.

The Court of Appeal held that there had been no surrender and that the claim was not barred by statutory limitation periods, but concluded that declaratory and possessory relief should nevertheless be refused.

The court applied public law discretion and equitable doctrines, emphasizing the band's historical acquiescence, the extraordinary delay in asserting the land claim, and the reliance of innocent third-party landowners who had held and developed the properties for generations.

The band was left to pursue its damages claims against the Crown.

Several Indigenous moving parties sought leave to intervene in multiple appeals concerning Aboriginal rights and title issues.

The court held that three of the moving parties had a sufficient interest in the outcome and could usefully add to the issues, and granted intervention on strict conditions, including that the existing record would stand and a single factum be delivered.

A separate moving party seeking intervention primarily to challenge portions of Ontario's factum was refused leave because the court was not persuaded it would add anything materially new to the arguments already to be made by existing parties.

No costs were ordered.

In a complex Indigenous land claim involving multiple summary judgment motions and overlapping appeals, the moving party sought to quash an appeal by one Crown respondent and a cross-appeal by another.

The court held that, because the motions below were heard together on a single record and the issues were interrelated, the provincial Crown had standing to appeal despite not bringing its own motion below.

The court also held that the federal Crown had standing to cross-appeal and that any complaint that it was advancing a new argument went to the merits, not to the validity of the cross-appeal.

Both motions to quash were dismissed with costs.

The appellant First Nation appealed a decision upholding the validity of a land surrender.

The Supreme Court of Canada dismissed the appeal in a brief oral judgment, stating that the sole question was the validity of the surrender and expressing agreement with the reasons of the Court of Appeal.