Melissa Winch

The Ontario Land Tribunal held a Case Management Conference regarding an appeal by the appellant against the respondent's passing of a zoning by-law amendment.

The by-law facilitates a permanent office and outdoor storage for truck and trailer parking.

A third party was granted party status without objection.

The parties expressed willingness to pursue Tribunal-led mediation.

A second Case Management Conference was scheduled.

The appellants, found in civil contempt for disobeying a court order regarding property use and trespassing, appealed their $1,000,000 fine.

They sought to introduce fresh evidence, alleging ineffective assistance of trial counsel.

The Court of Appeal dismissed the application for fresh evidence, finding it lacked due diligence and would not have affected the outcome.

The court upheld the sentencing judge's findings that the contempt was flagrant, protracted, deliberate, and profitable, and that the fine was fit, dismissing the appeal.

This endorsement addresses two procedural issues arising from the appellants' motion to adduce fresh evidence on appeal, specifically concerning an allegation of ineffective assistance of counsel.

The first issue involved the production of two recordings made by former counsel, which the appellants argued were inadmissible due to a breach of professional conduct rules.

The court affirmed that a breach of professional conduct rules does not automatically render evidence inadmissible in civil proceedings and ordered the production of the recordings, subject to conditions for their use.

The second issue concerned the standing of former counsel to file evidence and a factum.

The court granted former counsel limited leave to intervene as an added party, allowing them to file a responding factum on the specific issue of whether ineffective assistance of counsel is a valid ground of appeal in civil proceedings.

The appellants, previously found in contempt of an injunction and fined $1 million, brought a motion to set aside the Registrar's order dismissing their appeal for delay and sought an extension of time to perfect the appeal.

They also sought to introduce a new ground of appeal alleging ineffective assistance of counsel, based on a misapplication of criminal practice directions to a civil proceeding.

The court granted the motion to set aside the dismissal and extend time, but imposed strict conditions, finding the ineffective assistance of counsel argument weak in a civil context.

The Tribunal held a settlement hearing regarding appeals of the City of Hamilton's Zoning By-law No. 17-240 and Urban Hamilton Official Plan Amendment No. 69.

The City and the remaining city-wide appellants, Canadian Tire Real Estate Limited and Choice Properties Real Estate Investment Trust, reached a settlement involving modifications to the commercial and mixed-use zone regulations.

Based on uncontroverted expert planning evidence, the Tribunal found the modifications consistent with the Provincial Policy Statement and in conformity with the Growth Plan and Official Plan.

The Tribunal allowed the appeals in part to implement the settlement and deemed the unappealed portions of the By-law in force.

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 municipality brought a motion to hold the defendants in contempt of a 2019 court order requiring them to remove an encroaching fence and cease illegal business operations and storage on specific properties.

The defendants admitted non-compliance but argued that the COVID-19 pandemic and financial hardship prevented them from obeying the order.

The court rejected this defence, finding that financial hardship does not excuse deliberate disobedience of a court order.

The court found the defendants in contempt beyond a reasonable doubt regarding two of the properties and the fence, and directed the parties to schedule a sentencing hearing.

The appellant tenant appealed a decision finding it had not validly exercised its option to renew a commercial lease and denying relief from forfeiture.

The tenant argued the landlord waived the requirement for written notice of renewal through email negotiations about rent.

The Court of Appeal dismissed the appeal, upholding the application judge's findings that the landlord did not waive strict compliance with the renewal provision and that the tenant's conduct—including hedging its bets on renewal and paying rent late—did not warrant equitable relief from forfeiture.

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.

The appellant appealed a Superior Court decision dismissing its application for compensation regarding Block 203, a land parcel transferred to the City of Brampton pursuant to a Subdivision Agreement.

The appellant argued that Block 203 was conveyed on condition that it be used as a road and sought compensation after the City did not use it for that purpose some 20 years later.

The Court of Appeal upheld the lower court's decision, finding that the Subdivision Agreement contained no condition requiring reconveyance or compensation for Block 203, unlike other parcels covered by the agreement.

The court also dismissed the appellant's challenge to the costs award of $53,667.

The Conservation Review Board issued a procedural order following a pre-hearing conference regarding an objection by the University of Toronto to a Notice of Intention to Designate a property.

The order set the hearing dates, established the list of parties and participants, and outlined the schedule for the exchange of witness lists, expert reports, and documentary evidence.

The Objector requested an adjournment of the Conservation Review Board proceeding regarding a heritage designation pending an Ontario Municipal Board hearing concerning the same property.

The City of Toronto and a residents' association opposed the adjournment.

The Review Board denied the adjournment request, finding that the heritage determination was not contingent on the OMB matter and that scheduling the hearing would best serve the just, expeditious, and cost-effective determination of the proceeding.

The applicant developer conveyed a block of land to the respondent municipality for future road purposes pursuant to a 1998 subdivision agreement.

The applicant sought compensation or reconveyance of the land, arguing that the municipality would be unjustly enriched if it conveyed the land to a third-party developer without compensating the applicant.

The court dismissed the application, finding that the subdivision agreement was a comprehensive contract that did not include provisions for the reconveyance or cost-sharing of the specific block in question, precluding claims of resulting trust or unjust enrichment.

During a pre-hearing conference regarding a notice of intention to designate a property under the Ontario Heritage Act, the parties requested an adjournment to allow for public consultation and settlement discussions.

The Conservation Review Board granted participant status to three individuals on consent.

The Board also granted party status to the Harbord Village Residents Association, finding it had a genuine interest and would make a useful contribution to the proceeding.