Michael Valente

The applicant sought partial indemnity costs of approximately $42,000 following her successful application to recognize an easement and defence of a counterapplication.

The respondents argued for a costs award of $10,000, relying on a prior settlement offer.

The court rejected the respondents' reliance on the settlement offer, noting it would have left the applicant responsible for her own costs and restricted in her use of the right of way.

The court awarded the applicant $31,500 in all-inclusive costs.

The applicant and respondents are neighbours with adjoining properties on Lake Erie.

The applicant sought a declaration that she had an implied or prescriptive appurtenant easement over a portion of the respondents' property to access the beach, after the respondents built fences blocking her path.

The court found that the applicant had established an easement by prescription through continuous, open, and peaceful use for over 20 years.

The court rejected the respondents' arguments that the easement had been extinguished by operation of law due to a change in purpose or abuse by the applicant.

The respondents were ordered to remove the obstructing fences.

The plaintiffs brought a motion for leave to discontinue their simplified procedure action with prejudice.

The action involved a claim for latent defects in a purchased property.

The plaintiffs sought to discontinue because their expert became unavailable, the defendant was unable or unwilling to be examined for discovery, and the defendant was impecunious with unpaid costs awards.

The court applied the factors for granting leave to discontinue and found that the prejudice to the plaintiffs in continuing the action outweighed any prejudice to the defendant.

The motion was granted.

The applicants sought a review and adjustment of the accounts of a private receiver and its legal counsel regarding the windup of a bankrupt company.

The court found that the receiver's fees of over $106,000 and legal fees of over $35,000 were excessive given the simplicity of the receivership, the extensive assistance provided by the debtor, and an initial estimate of $30,000 to $50,000.

The court reduced the receiver's fees to $50,000 and the legal fees to $28,516.79, and ordered the receiver to release $50,000 in surplus funds it had withheld.

Municipal taxpayers brought an action challenging a waterfront redevelopment project involving a municipality and a private developer.

The plaintiffs sought declarations that agreements transferring municipal land in exchange for community benefits were ultra vires, constituted illegal bonusing under s.106 of the Municipal Act, 2001, lacked consideration, and created an unlawful partnership.

On cross-motions for summary judgment, the court held the contractual arrangement fell within the municipality’s broad powers under ss. 8, 9, and 11 of the Municipal Act, 2001 and s.37 of the Planning Act.

Viewing the transaction as a whole, the court found the municipality received substantial community benefits and economic advantages, meaning the arrangement did not confer an obvious or undue advantage on the developer.

The plaintiffs’ claims were dismissed and summary judgment granted to the defendants.