Leonard F. Marsello

The Minister of Transportation appealed an Ontario Municipal Board decision awarding Antrim Truck Centre Ltd. $393,000 for injurious affection resulting from the construction of Highway 417, which bypassed Antrim's property and substantially interfered with its access.

Antrim cross-appealed, seeking over $7.6 million for relocation and construction costs.

The Divisional Court dismissed both the appeal and the cross-appeal, finding that the OMB reasonably concluded the highway construction caused a substantial interference amounting to an actionable nuisance, and correctly held that the Expropriations Act does not permit recovery of relocation costs where no land is expropriated.

The appellant appealed an order regarding the interpretation of a settlement agreement term stating a mortgage 'will be held in escrow'.

The Court of Appeal upheld the application judge's finding that the parties intended the mortgage would not be effective and would not create an interest in land unless and until there was a default.

As no default occurred, the bank had nothing to assign to the appellant.

The appeal was dismissed with costs.

Following the dismissal of Ontario's motion for leave to appeal, the successful plaintiff sought costs.

Ontario disputed the number of hours claimed and argued it should not be required to reimburse the plaintiff for GST on costs, citing previous case law.

The court disagreed, holding that where a successful party is indemnified for costs, the province cannot escape indemnification for GST.

The court awarded the plaintiff costs of $13,500 inclusive of fees, disbursements, and GST.

The appellants appealed a trial judgment granting a mandatory injunction requiring them to remove a retaining wall that encroached on the respondent's adjacent commercial property.

The original encroachment was permitted under a 1973 settlement agreement, which stipulated that consent would be rescinded if further encroachment occurred.

The trial judge found that the wall had moved significantly, rescinding the consent and rendering the encroachment a trespass.

The Court of Appeal upheld the trial judge's findings that the encroachment constituted a trespass, that the appellants had not acquired title by adverse possession because their possession was consensual, and that a mandatory injunction was the appropriate remedy given the significant and ongoing interference with the respondent's property rights.

The appeal was dismissed.

The appellants appealed an order striking out their claim of economic duress and effectively dismissing their entire action against the respondent banks.

The motion judge had found that past dealings between the parties could not constitute economic duress to vitiate a restructuring agreement and release.

The Court of Appeal allowed the appeal, holding that the motion judge erred by failing to apply the 'plain and obvious' test for striking pleadings under Rule 21.

The Court found it was not plain and obvious that a claim of economic duress based on past dealings would inevitably fail, and ordered the appellants to file a new, focused statement of claim.

The appellants appealed the costs awarded by the lower court judge following a lengthy hearing.

The Court of Appeal reviewed the submissions and found no error in principle in the judge's exercise of discretion regarding the costs order.

The appeal was dismissed.

The appellants appealed a summary judgment dismissing their action against the municipality for abuse of public office and conspiracy to injure.

The appellants alleged that the municipality passed zoning by-laws prohibiting 'monster' homes with the true purpose of preventing student housing.

The motion judge found no genuine issue for trial, concluding there was no evidence the by-laws were directed solely at the appellants or that student housing was specifically targeted.

The Court of Appeal found no palpable and overriding error in the motion judge's assessment of the evidence and dismissed the appeal, requesting further written submissions on the issue of costs.

The defendants brought a motion for directions to determine whether the Court of Appeal had jurisdiction to hear the plaintiffs' appeal from an order dismissing their cross-motion for partial summary judgment, alongside their appeal from the final order granting the defendants summary judgment and dismissing the action.

The Court of Appeal held that the order dismissing the partial summary judgment motion was interlocutory.

Therefore, the plaintiffs must first obtain leave to appeal to the Divisional Court before the Court of Appeal can assume jurisdiction over both matters under section 6(2) of the Courts of Justice Act.

The defendants' motion for directions was denied.