Michael F. Sirdevan

The appellant, J. Michael Evans, appealed the refusal of building and septic permits for Harry Island in the Township of Muskoka Lakes.

The court found that Evans failed to establish a legal nonconforming residential use of the boathouse on Harry Island, as there was no evidence of actual residential use or intention to continue such use since the 1920s or 1930s.

The court also held that the chief building official did not have discretion under the zoning bylaw to deem the undersized island to conform.

However, the court allowed the appeal regarding the septic permit, finding that compliance with the Building Code superseded the municipal bylaw’s setback requirement.

The court considered whether a strip of land (the "0020 property") between the applicant's two properties was a public highway that should vest in the Town of Essex under the Municipal Act, 2001.

The applicant argued the land was a roadway on a registered plan of subdivision and should be owned by the Town.

The court found that the land was never dedicated or accepted as a public highway, was not used by the public, and was instead used by the respondent golf course for irrigation.

The application was dismissed and ownership confirmed in the respondent.

The Corporation of the Township of Strong brought a motion for summary judgment to dismiss the plaintiffs' claims for defamation, malicious prosecution, and misfeasance in public office.

The plaintiffs alleged that the Township made defamatory statements to police, initiated a malicious prosecution for public mischief, and engaged in misfeasance in public office, all stemming from a dispute over land ownership.

The court dismissed the Township's motion, finding genuine issues for trial on all three causes of action, particularly regarding the Township's alleged malice and reckless disregard for the truth in its communications with the police.

The court also found that partial summary judgment was inappropriate due to the intertwined factual and legal issues.

This motion concerned a property dispute where the applicant sought to convert an application into an action.

The court granted the motion, finding that the case involved material facts in dispute, complex issues requiring expert evidence, credibility assessments, and a need for pleadings and discoveries.

The conversion was deemed in the interests of justice, providing the respondent with the opportunity to pursue summary judgment and ensuring a more suitable procedural framework for the complex issues involved.

The court also indicated it would case manage the proceeding with strict deadlines.

The applicant sought to vary a 2018 consent order regarding an equalization payment, arguing that the amount transferred from the respondent's pension should have been grossed up for tax purposes, resulting in an underpayment of $66,723.93.

The applicant, self-represented at the time of the original order, discovered the alleged error in 2021 but did not bring the motion until May 2023.

The court dismissed the motion, finding that the applicant failed to act promptly as required by the test for varying orders under Rule 25(19)(b) of the Family Law Rules.

The court emphasized that the respondent had relied on the finality of the 2018 order and that requiring an additional payment almost five years later would cause injustice.

The respondent sought to re-open a previous hearing to advance a constitutional challenge to the Township's zoning by-law, asserting the property is unceded Indigenous territory.

The initial application by the Township for demolition of buildings on the respondent's property had been granted, but the order had not yet been signed, issued, or entered.

The respondent had been self-represented at the original hearing.

The court granted the motion to re-open, finding it was in the interests of justice given the respondent's prior unfamiliarity with court rules, the novelty of the constitutional issue, the lack of prejudice to the applicant (as no enforcement steps had been taken), and the fact that the original order was not yet finalized, allowing for broader judicial discretion.

The appellant, Allen Dunford, appealed the dismissal of his action for misfeasance in public office against the Township of Otonabee-South Monaghan, which was granted on summary judgment.

Dunford alleged a pattern of bad faith dealings by the Township from 2005 onwards.

The Court of Appeal found no reversible error in the motion judge's decision, affirming that she did not misapprehend the cause of action and properly applied a holistic approach to the claims.

The Court also upheld the motion judge's discretion in not considering new particulars presented by the appellant.

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

This appeal concerns the interpretation of a will granting trustees absolute discretion to encroach on capital for the income beneficiary's comfort and well-being.

The primary issue was whether the trustees improperly considered extraneous factors in exercising their discretion.

The Court of Appeal found that the application judge erred in characterizing the trustees' distrust of the beneficiary's living arrangement as extraneous, as due diligence was warranted.

However, the court upheld the finding that the trustees' personal dislike of the beneficiary was an extraneous factor, justifying judicial intervention.

The appeal regarding the monthly encroachment was dismissed, but the arrears calculation was adjusted to reflect when sufficient financial disclosure was provided.

This appeal concerned the interpretation of a 1988 agreement between a school board and a municipality for snow and garbage removal services provided in exchange for the sale of a school property for $1.

The municipality unilaterally terminated the services in 2017, arguing the contract was terminable on reasonable notice.

The Court of Appeal found that the application judge erred in characterizing the agreement as a personal services contract and in his analysis of surrounding circumstances.

The Court concluded that the agreement was perpetual in nature, given the upfront transfer of an enduring capital asset by the school board and the public nature of the parties' mutually beneficial arrangement, which was not primarily commercial.

The defendant municipality sought summary judgment to dismiss the plaintiff's claims for misfeasance in public office, punitive damages, and other relief.

The plaintiff alleged a pattern of bad faith conduct by Township officials from 2005 to 2017, relating to construction, development, zoning, property standards, severance, and demolition permits.

The court applied the principles from Hryniak v. Mauldlin and the elements of misfeasance from Odhavji Estate v. Woodhouse.

The court found that the plaintiff's claims were either statute-barred by the Limitations Act, 2002, lacked factual support for unlawful conduct or targeted malice, or that the plaintiff lacked standing.

The court concluded that no genuine issue requiring a trial existed for any of the plaintiff's alleged causes of action.

The appellant town appealed a decision dismissing its application for a declaration that its large-scale commercial aggregate extraction operation on property located in the respondent township was a permitted use under the township's zoning by-law or alternatively constituted a legal non-conforming use under the Planning Act.

The application judge found that the extraction operation was not permitted under the zoning by-law and did not qualify as a legal non-conforming use because the historical use of the property was as a municipal park with only incidental and ancillary extraction for municipal purposes.

The court found that the expansion from incidental extraction to large-scale commercial extraction constituted a change in the type of use rather than a mere intensification.

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

This decision addresses the costs of an application where the Town of Cobalt sought a finding that its aggregate extraction use was permitted under a zoning by-law, which was ultimately dismissed.

The Township of Coleman, as the successful respondent, sought full indemnity costs.

The court determined that costs should be awarded on a partial indemnity basis, deducting expenses unrelated to the Superior Court application and ruling that a prior proposal by the respondent did not qualify as a Rule 49 offer to settle.

The Town of Cobalt was ordered to pay $85,000.00 in costs to the Township of Coleman.

The applicant municipality sought a declaration that its use of a property for commercial aggregate extraction was permitted under the applicable zoning by-law or, alternatively, was a legal non-conforming use.

The property had previously been used as a municipal park, with only small-scale, incidental extraction for municipal purposes.

The court found that the current large-scale commercial extraction was a difference in kind, not merely an intensification of the pre-existing use.

Consequently, the application was dismissed, and the extraction was deemed not to be a permitted use.

In supplementary reasons following a summary judgment for Crown wardship, the court revised its order to reflect that the parties' consent to finding the children in need of protection applied only to sections 37(2)(b)(i) and (ii) of the Act.

The mother's motion to adjourn the access trial was dismissed.

The access trial did not proceed as the parties filed a consent resolving the issue.

The applicant Society brought a motion for summary judgment seeking to have two children found in need of protection and made Crown wards with no access for the purpose of adoption.

The respondent mother consented to the finding that the children were in need of protection.

The court found no genuine issue for trial regarding the disposition of Crown wardship, given the mother's history of transience, substance abuse, and inability to adequately care for the children.

However, the court found a genuine issue for trial regarding whether the mother should have access to the children, noting her recent rehabilitation efforts and the children's attachment to her.

The motion was granted in part, with Crown wardship ordered and a trial directed on the issue of access.

The applicant father, convicted of aggravated assault and assault with a weapon against the respondent mother, sought supervised access to their two children, whom he had not seen for over five years.

The mother opposed, citing fear for her safety and the children's well-being, a position supported by the Children's Aid Society.

The court, applying the "best interests of the child" test under the Children's Law Reform Act, found insufficient evidence that access would significantly benefit the children, particularly given the long period of no contact and the father's lack of remorse for his past actions.

The father's application for access was dismissed, but a prior restraining order against him was terminated, and he was granted rights to receive information about the children's welfare and to share his life and heritage with them annually.

The respondent sought to terminate indefinite spousal support, arguing the applicant should be self-sufficient after receiving an equalization payment and engaging in a failed business venture.

The applicant sought continued support for at least four more years.

The court, reviewing the spousal support order under s. 17(7) of the Divorce Act, found a continuing compensatory element due to the applicant's role in the marital farm business.

While acknowledging the applicant's post-separation business decisions contributed to her hardship, the court determined that immediate termination would impair self-sufficiency.

Spousal support was ordered to terminate in three years with a step-down provision, balancing the applicant's need for self-sufficiency in a new career and the respondent's impending retirement.