P. Sutherland

Following a prior decision involving an application and contempt motion to enforce compliance with municipal zoning and site alteration by-laws, the court determined the appropriate costs award.

The applicant municipality was substantially successful on the application but unsuccessful on the contempt motion.

Applying the principles governing costs under Rule 57.01 of the Rules of Civil Procedure and relevant appellate authorities, the court emphasized that costs must be fair and reasonable rather than a strict calculation of actual legal fees.

The court reduced the claimed amount due to duplication of counsel and excessive preparation time.

Costs were awarded on a partial indemnity basis in the amount of $30,000 inclusive.

A municipality brought an application seeking declarations and injunctive relief regarding alleged contraventions of zoning and site alteration by-laws relating to two rural properties.

The municipality alleged that the respondents operated a landscape supply operation, stockpiled fill, and used one property as a contractor’s yard and waste disposal site in a rural zone where such uses were not permitted.

The respondents argued that the activities constituted a lawful continuation or expansion of a pre-existing nursery operation and therefore qualified as legal non-conforming use.

The court held that the respondents’ activities constituted a fundamentally different commercial landscape supply and haulage operation rather than an intensification of the prior nursery use.

Declarations and a permanent injunction were granted restraining the unlawful uses and requiring removal of fill, although the municipality failed to prove civil contempt of a prior interlocutory injunction.

A defendant in a construction lien action moved to set aside a noting in default, alleging improper service of the statement of claim and lack of notice of the proceeding.

The court applied the test under the Construction Lien Act requiring a defendant to show a valid reason for default, a continuous intention to defend, and evidence of a meritorious defence.

The court found that service at the corporation’s publicly represented business address was valid and that the defendant failed to adequately explain its failure to respond.

The defendant also failed to provide any probative evidence supporting the alleged defences in its proposed pleading.

The motion to set aside the noting in default was therefore dismissed.