Samuel Atkin

Following an appeal where the appellants achieved mixed success, the appellants requested to make written costs submissions, arguing that each side should bear their own costs of the appeal and costs below should be in the cause.

The Court of Appeal affirmed its original costs order, finding that the respondent was more successful on the appeal as the appellants' claim was largely statute-barred.

The original award of $6,500 in appeal costs to the respondent was maintained.

The appellants commenced an action in nuisance and negligence against the respondent municipality for property damage allegedly caused by heavy truck traffic vibrations.

The action was commenced after the Ontario Municipal Board declined jurisdiction over the appellants' injurious affection claim.

The motion judge dismissed the civil action as statute-barred under the two-year limitation period.

On appeal, the Court of Appeal upheld the application of the two-year limitation period and the finding that it was not legally appropriate to wait for the OMB decision before commencing the civil action.

However, the Court allowed the appeal in part, finding a genuine issue for trial regarding whether the municipality engaged in ongoing wrongful conduct causing damage within the two years prior to the statement of claim.