Orly Kahane-Rapport

The appellant, 2708959 Ontario Inc., appealed the dismissal of its application regarding four structures encroaching on a municipal road allowance in Stratford.

The Court of Appeal upheld the application judge’s finding that the City of Stratford had not expressly or tacitly approved the encroachments when the building and site plan drawings were approved in 1998.

The court found that the onus was on the original proponent and their advisors to bring the encroachments to the City’s attention, and that approval of site plans and occupancy permits did not constitute approval of the encroachments.

The appeal was dismissed, and costs were awarded to the City.

The appellant appealed a decision by Tarion Warranty Corporation denying a warranty claim for plumbing noise in a new home.

The appellant alleged that noise from an upstairs shower heard in an adjacent bedroom constituted a defect.

The Tribunal found that the appellant failed to provide objective evidence or industry standards demonstrating that the noise amounted to a defect or a breach of the Ontario Building Code.

The appeal was dismissed and the claim denied.

This is an appeal concerning a dispute over the retention of a deposit on a commercial property after the agreement of purchase and sale (APS) was terminated.

The motion judge had found that the respondents (buyers) were entitled to terminate the APS and recover their $350,000 deposit because the appellant (seller) failed to comply with requisitions to remove an open building permit, which constituted a valid objection to title.

The appellant's claims for the deposit and punitive damages were denied.

The Court of Appeal dismissed the appeal, affirming the motion judge's finding that the outstanding work permit entitled the respondents to terminate the APS, as it prevented the appellant from conveying good and marketable title.

The plaintiff landlord brought a motion for summary judgment to recover arrears of rent from the defendant commercial tenant.

The tenant argued it was relieved of its obligation to pay rent because the COVID-19 pandemic and resulting government restrictions triggered the lease's force majeure clause or frustrated the contract.

The court found that while the government restrictions triggered the force majeure clause, the clause explicitly did not excuse the tenant from paying rent.

The court also held that the doctrine of frustration did not apply because the lease did not require the tenant to operate a retail store, the disruptions were temporary, and the force majeure clause demonstrated the parties had contemplated such circumstances.

Summary judgment was granted in favour of the landlord.

Following the dismissal of an application regarding the removal of an illegally installed third-party rooftop sign, the successful respondent sought costs.

The applicant argued for no costs or a modest award, claiming the case involved issues of public importance.

The court rejected this argument, finding the legal issues straightforward and not novel.

The court awarded the respondent costs of $20,613.60, finding the amount reasonable for the hard-fought litigation.

The applicant sought to set aside a Notice of Violation issued by the City requiring the removal of a rooftop billboard sign.

The applicant argued the sign was a legal non-conforming use because a permit had been issued in 1959.

The court dismissed the application, finding that the original sign was replaced between 1978 and 1983 without a permit, and further substantial alterations were made in 2013 without a permit.

As the sign was never lawfully erected under the applicable by-laws, it did not qualify as a legal non-conforming use, and the City was not estopped from enforcing its sign by-law.

The appellant appealed Tarion's denial of a warranty claim regarding an allegedly crooked wall and window in her new home.

The appellant also sought $100,000 in damages, aggravated damages, and costs.

The Tribunal first ruled it lacked jurisdiction to award damages for secondary claims outside the statutory warranty.

On the merits, the Tribunal found the appellant failed to provide reliable measurements or expert evidence proving the wall or window exceeded acceptable tolerances.

The appeal was dismissed.

Following a judgment where Vivekanandan successfully established an easement and adverse possession over a disputed area, they sought costs on a substantial indemnity basis under Rule 49 of the Rules of Civil Procedure.

The court declined to award substantial indemnity, noting that Rule 49.10 is more appropriately applied to monetary judgments and that Vivekanandan was not entirely successful on all aspects of their claim.

The court awarded costs on a partial indemnity basis, finding the requested amount of $93,107.99 (including fees, HST, and disbursements) to be reasonable given the complexity and effort involved in the property title litigation, consistent with the principle of indemnity and reasonable expectations.

The parties are neighbours involved in a property boundary dispute over a strip of land between their houses.

The disputed land consists of a Driveway Area and a Backyard Area, both of which are registered to the applicant's property but have been used by the respondents and their predecessors in title.

The court found that the respondents' predecessors had established a prescriptive easement over the Driveway Area through 20 years of continuous, open, and uninterrupted use prior to the property's conversion to the Land Titles system.

The court also found that the respondents acquired title to the Backyard Area through adverse possession, as their predecessors had exclusively enclosed and occupied the area for the requisite statutory period.

The respondents' counter-application was granted.

The plaintiff sued its land planner and construction manager for professional negligence, alleging they failed to apply for a building permit before a new municipal by-law came into effect, resulting in the plaintiff paying $266,157.22 in development charges.

The defendants brought summary judgment motions arguing the claims were statute-barred.

The court granted the motions, finding that the plaintiff discovered the material facts of the claim in 2011 when it learned the charges could have been avoided with a timely permit application, making the 2015 actions out of time under the Limitations Act, 2002.

The defendant, King Packaged Materials Company, brought a motion for summary judgment to dismiss the plaintiff's (Construction Distribution & Supply Co. Inc.) action for insufficient termination notice of a distribution agreement and to grant its counterclaim for unpaid products.

The court found that the unwritten, non-exclusive distribution agreement, which lasted 18 years, implied a term for reasonable notice of termination based on industry custom.

Considering factors such as the plaintiff's low dependence on the defendant's products (less than 5% of total sales) and lack of substantial investment, the court determined that the three months' notice provided by the defendant was reasonable.

Consequently, the plaintiff's claim for damages was dismissed, and the defendant's counterclaim for $93,890.49 plus interest for unpaid products was granted.

The appellant tenant breached a commercial lease covenant to continuously operate its business and to restore the premises upon expiry.

The landlord affirmed the lease and later sued for damages.

The tenant argued the claim was statute-barred under the Limitations Act, 2002.

The Court of Appeal upheld the motion judge's finding that the failure to operate the business was a continuing breach, giving rise to a fresh cause of action and a rolling two-year limitation period for each day of non-compliance.

The claim for failure to restore the premises was also brought within the limitation period, as it accrued upon the expiry of the lease.

The moving party sought leave to appeal an Ontario Municipal Board (OMB) decision that approved ten minor variances for the responding parties' proposed home construction.

The moving party, a neighbour who had 'participant' status at the OMB hearing, argued the OMB's reasons were insufficient and failed to demonstrate it grappled with the issues.

The Divisional Court dismissed the motion, finding the OMB's reasons were sufficient given the brief, uncontested expert evidence presented at the hearing.

In obiter, the court noted that a 'participant' at an OMB hearing likely lacks standing to seek leave to appeal.

A commercial landlord sued a tenant for rent arrears, liquidated damages under a continuous‑operation clause in a lease, and damages for failure to restore leased premises at the end of the lease.

The tenant moved for summary judgment arguing the arrears were paid and the remaining claims were statute‑barred.

The court held that liquidated damages under the continuous‑operation clause were not "rent" within the meaning of the Real Property Limitations Act but were damages governed by the two‑year limitation period under the Limitations Act, 2002.

Because the breach was continuous, the landlord could recover only damages accruing within two years before the action was commenced.

The restoration claim was not time‑barred because the obligation arose only upon termination of the lease.

The applicants sought leave to appeal decisions of the Ontario Municipal Board that approved a development application.

The applicants argued the approval effectively down-zoned a neighbouring property by creating a key lot, without a rezoning application being before the Board.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the Board's jurisdiction to change zoning without following the procedures in the Planning Act, and concluding the issue was of sufficient importance to municipalities to warrant the attention of the full panel.

The applicants sought leave to appeal a decision of the Ontario Municipal Board (OMB) granting minor variances to the respondents to construct a new two-storey building.

The applicants argued the OMB erred in law by subsuming the four tests under s. 45(1) of the Planning Act into a single test of impact, failing to require a demonstrated need for the variances, misapprehending evidence regarding building length and height, and imposing an unenforceable condition on a rear balcony.

The Divisional Court found reason to doubt the correctness of the OMB's decision on these questions of law and granted leave to appeal.