Marisa Keating

Following an application regarding the continuation of a legal non-conforming use, the applicant sought costs of $60,186.30 on a partial indemnity basis.

The respondent argued for each party to bear their own costs due to divided success, or alternatively $20,000.

The court found there was genuinely divided success as the applicant was successful on the declaration but overreached on the injunction, which the respondent successfully resisted.

Applying Rule 57.01, the court awarded the applicant costs fixed at $38,000 all-inclusive.

The applicant sought declarations regarding the continuation of legal non-conforming uses on his property, affirmation of an existing injunction against the Town, and an order to register court judgments on title.

The court granted declarations affirming that the property's uses, including a motor vehicle compound, were a continuation of previously recognized legal non-conforming uses.

The court dismissed the requests for an affirmation of the injunction, finding no contravention by the Town, and for an order to register judgments, deeming it a matter for the Land Titles system.

The plaintiff hotel sought an injunction to restrain the neighbouring defendant tire shop from servicing commercial vehicles, alleging the noise constituted a nuisance and breached municipal by-laws and the Environmental Protection Act (EPA).

The court found that the noise from servicing commercial vehicles likely caused an adverse effect, breaching s. 9(1) of the EPA and, consequently, the municipal zoning by-law.

Applying the RJR-MacDonald test, the court granted an injunction restraining the defendant from servicing commercial vehicles between 8:00 p.m. and 9:00 a.m. to prevent irreparable harm to the hotel's reputation.

Following a successful motion to enforce zoning bylaws and property rights, the plaintiff municipality sought costs.

The defendants argued the motion was unnecessary and sought their own costs.

The court found the plaintiff acted properly in bringing the motion in the public interest and was entitled to costs.

The court awarded the plaintiff partial indemnity costs and costs thrown away, totalling $71,220.90.

A municipality brought a motion for injunctive relief to restrain trespass on an unopened road allowance, require remediation of a fence encroaching onto municipal land, and compel compliance with zoning bylaws governing commercial storage and fill activities.

Applying the RJR-MacDonald framework, the court held that the municipality met the test for an injunction respecting trespass, with public interest, property rights, and balance of convenience favouring relief.

The court also held that under s. 440 of the Municipal Act, proof of bylaw breaches entitled the municipality to a compliance order absent exceptional circumstances, and equitable defences such as unclean hands had little application.

The motion was granted in substantial part, subject to delayed effectiveness for part of the land-use compliance order and a 90-day opportunity to reach agreement regarding the fence encroachment.