Mark Robert Flowers

The respondent, having been successful on the appeal, sought costs of $34,377.28 on a substantial indemnity basis relying on a settlement offer.

The appellant argued he was a public interest litigant and that no costs should be ordered.

The Divisional Court found the appellant did not demonstrate he was a public interest litigant and held that costs should follow the event.

The court declined to award substantial indemnity costs, finding Rule 49 did not apply, and instead awarded the respondent costs of $20,000 on a partial indemnity basis.

Several property owners appealed the City of Vaughan's 2010 Official Plan regarding policies affecting the Centre Street Corridor.

The parties reached a settlement proposing modified policies and map schedules to allow for increased building heights, density, and mixed uses along the transit corridor while ensuring appropriate transition to adjacent low-rise neighbourhoods.

The Tribunal denied a late request for Party status from a ratepayers association.

Accepting the uncontested expert planning evidence that the modified policies are consistent with the Provincial Policy Statement, conform with the Growth Plan and Regional Official Plan, and represent good planning, the Tribunal allowed the appeals in part and approved the modified policies.

The appellant appealed a Review Decision of the Local Planning Appeal Tribunal, arguing that the Tribunal erred in law by applying the 'Clergy principle' to allow the respondent's planning applications to be assessed under the policy regime in place when they were originally filed in 1990.

The Divisional Court dismissed the appeal, holding that the Clergy principle is a procedural policy choice within the Tribunal's exclusive jurisdiction, not a legal principle subject to appeal on a question of law.

The Court also found that the Tribunal provided sufficient reasons for its decision.

This decision addresses the costs arising from two applications brought by the Town of Oakville that were struck out by the court.

Clublink, the successful party, sought $137,903.70 in partial indemnity costs, while the Town argued for no costs or, alternatively, $30,000.

The court rejected the Town's arguments for denying costs, noting that the Town's counter-applications created an unnecessary multiplicity of proceedings.

While acknowledging the extensive litigation context and the involvement of multiple senior counsel, the court found Clublink's requested costs excessive for a relatively straightforward motion to strike.

Applying principles of fairness, reasonableness, and proportionality under the Courts of Justice Act and Rule 57.01, the court fixed costs on a partial indemnity basis at $65,000, inclusive of disbursements and HST.

The Town of Oakville sought to designate Glen Abbey golf course as a cultural heritage property.

Clublink, the owner, applied under section 34 of the Ontario Heritage Act to demolish and remove the golf course.

The Town argued the application should proceed under section 33, which provides different procedural protections and appeal routes.

The central issue was whether a golf course constitutes a "structure" within the meaning of section 34.

The Court of Appeal held that Glen Abbey, being a product of significant construction and engineering comprising constituent parts intended to remain permanently on the property, was a structure within section 34.

The purposive and contextual interpretation of the statute, considering its legislative history and the evolution of municipal heritage planning beyond a "building-centric" paradigm, supported this conclusion.

The applicant, Clublink, owned the Glen Abbey Golf Course in Oakville and sought to redevelop it into a residential and mixed-use community.

The Town designated Glen Abbey as a cultural heritage property and passed five related by-laws, including a Cultural Heritage Landscape Conservation Plan By-law, authorizing the preparation of a conservation plan that required Clublink to seek Town approval for alterations to the golf course.

The application judge quashed all five by-laws and the conservation plan, finding them ultra vires, passed in bad faith, and void for vagueness.

The Court of Appeal allowed the appeal in part, upholding the validity of the five by-laws but quashing the conservation plan resolution on the basis that it effectively compelled Clublink to continue operating the golf course as a service, contrary to section 11(8)5 of the Municipal Act.

The applicants, owners of the Glen Abbey Golf Course, brought an application to quash five municipal by-laws enacted by the respondent Town.

The by-laws aimed to preserve the property's use as a golf course following its designation as a cultural heritage property.

The Superior Court of Justice allowed the application and quashed the by-laws, finding them ultra vires the Town's authority under the Municipal Act, as they improperly required the provision of services related to recreation and culture.

The court also found the by-laws were enacted in bad faith to thwart the applicants' redevelopment plans and were void for vagueness.

The Town of Oakville designated the Glen Abbey Golf Course as a heritage site under the Ontario Heritage Act (OHA).

Clublink, the owner, sought to demolish and redevelop the property, applying under s. 34(1) of the OHA.

The Town refused to process this application, arguing that the golf course features were not "buildings or structures" within the meaning of s. 34, and that Clublink should instead apply under s. 33, which provides for a non-binding appeal route.

The court was asked to determine the correct procedural route for Clublink's proposed changes.

The court found that the Glen Abbey Golf Course, including its engineered features such as tees, greens, sand traps, and irrigation systems, constitutes "structures" for the purposes of s. 34 of the OHA.

Consequently, Clublink has the right to make an application to the Town under s. 34(1), and the Town was ordered to process Clublink’s application.

Clublink sought leave to admit a supplementary affidavit after cross-examinations concluded, arguing it supported their claim of bad faith in Oakville's by-law enactment.

Oakville moved to strike the affidavit, arguing it was late-filed and irrelevant.

The court applied the four-part test for admitting late-filed evidence under Rule 39.02(2), finding the evidence either irrelevant or available prior to cross-examinations.

Clublink's motion for leave was dismissed, and Oakville's motion to strike was granted, rendering the supplementary affidavit inadmissible.

The Town of Oakville sought leave to appeal an Ontario Municipal Board decision which found that ClubLink's planning applications to redevelop a golf course were complete as of the date they were originally submitted, rather than the date the Board ruled on their completeness.

The Town argued this interpretation deprived it of the statutory time period to consider the applications before an appeal right crystallized.

The Divisional Court denied leave to appeal, finding the Board's interpretation of the Planning Act was reasonable and consistent with the statutory scheme.

Furthermore, the court found the issue was virtually moot between the parties as the Town had already processed and refused the applications.

The applicant, James Kritz, sought costs on a substantial or partial indemnity basis after successfully obtaining an order to rescind a City of Guelph building inspector's order.

The City of Guelph argued for no costs.

The court, applying Rule 57.01 of the Rules of Civil Procedure, found Kritz entitled to partial indemnity costs.

The court rejected the City's submission that success on two out of three arguments negated costs, affirming that costs follow the event of overall success.

The court fixed costs at $37,482.01, noting the City's own partial indemnity bill of costs was $29,367.33 and that Kritz's expert fees were reasonable and appropriate.

The request for substantial indemnity was denied as there was no finding of improper conduct by the City, the issue having been withdrawn by the applicant.

Gemterra Developments Corporation sought a refund of $408,400 from the City of Toronto, alleging overpayment of park levies.

The central issue was the interpretation of "development site" under the City's Park Levy By-law, specifically whether Gemterra's two-phase residential project on a 1.3-hectare parcel constituted one or two development sites.

The levy rate was 10% for sites less than one hectare and 15% for sites between one and five hectares.

Gemterra argued that each phase, for which separate building permits were issued, should be treated as a distinct site, qualifying for the lower 10% rate.

The City contended it was a single development site.

The court dismissed Gemterra's application, finding that "development site" is a fact-based determination, and in this case, the two phases comprised a single development site, irrespective of phased construction or separate building permits.

The applicant sought a declaration that four of his properties, rented to groups of university students, were not being used as 'Lodging House Type 1' under the municipality's zoning by-law.

The municipality argued that because the properties were rented to five or more individuals sharing kitchen and bathroom facilities, they constituted lodging houses.

The court found that the properties functioned as single housekeeping units rented to cohesive groups under single leases, rather than individual lodging units.

The court granted the declaration and further ordered the municipality to remove unsubstantiated references to the properties as 'Possible Lodging Houses' from its public website, criticizing the municipality's use of the website to pressure landowners.

The applicant appealed an order to comply issued by a city building inspector requiring a building permit for interior renovations completed before the applicant purchased the property.

The court held that current owners are responsible for prior unpermitted construction and that the city's inspection was conducted with valid consent.

However, the court rescinded the order, finding that the minor interior renovations (adding non-load-bearing walls and basement laundry plumbing) did not constitute 'material alterations' requiring a building permit under the Building Code Act.

The moving party sought leave to appeal, which was dismissed on the basis of prematurity.

The successful respondents sought costs.

The moving party argued each party should bear its own costs due to the public interest and novelty of the issue.

The court rejected this argument, finding that the usual rule of costs following the event applied, especially since the motion was dismissed for prematurity.

The court awarded costs of $3,000 inclusive to the clients represented by Mr. Streisfield.

The Town of Richmond Hill sought leave to appeal a preliminary decision of the Ontario Municipal Board regarding the interpretation of parkland dedication provisions under the Planning Act.

The Town argued that the Board could not set an alternative park dedication rate in an Official Plan.

The Divisional Court dismissed the motion for leave to appeal, finding it premature.

The Court held that the issue was not a discrete threshold question and that granting leave would improperly fragment the ongoing Board proceedings.

The respondent sought costs following dismissal of the applicant municipality’s application on the basis that the Ontario Municipal Board was the more appropriate forum.

The municipality argued that no costs should be awarded because the court did not determine the merits of the dispute and the matter might proceed before the Board.

The court rejected that submission, holding that the municipality chose to bring the proceeding in the Superior Court and the application was dismissed.

Partial indemnity costs were awarded to the respondent, though reduced due to excessive fees and some duplication.

The court fixed costs and disbursements payable within 60 days.

The applicant municipality sought a declaration that a developer had no right of appeal to the Ontario Municipal Board from council’s refusal to approve an official plan amendment redesignating employment lands to mixed use areas.

The court considered whether it should determine the jurisdictional issue or defer to the tribunal.

The court held that although it possessed concurrent jurisdiction, the tribunal had broader expertise in interpreting official plans and planning legislation.

The court therefore declined jurisdiction and dismissed the application, finding the tribunal to be the more appropriate forum to determine the appeal rights under the Planning Act.

The City of Toronto sought leave to appeal a decision of the Vice-Chair of the Ontario Municipal Board, which refused to order a rehearing of a decision granting approval for a mixed-use development on lands designated as 'Employment Areas'.

The City argued the Board erred in law by allowing the conversion without a municipal comprehensive review, contrary to the Growth Plan.

The Divisional Court denied leave to appeal, finding that the Board's interpretation—that the lands were not within 'Employment Districts' and thus not subject to the conversion protection—was reasonable and consistent with the City's own by-laws.

The moving parties sought leave to appeal an interlocutory decision of the Ontario Municipal Board (OMB) which denied their motion to dismiss the respondent's appeal without a hearing.

The moving parties argued that the OMB had improperly made final determinations on their defences of res judicata and laches.

The Divisional Court dismissed the motion for leave to appeal, finding that the OMB's decision was interlocutory and merely determined that the issues were worthy of a full hearing, despite the OMB's reasons going further than necessary.