Michael F. Sirdevan

The moving party brought a motion for leave to appeal two prior orders.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties in the amount of $1,313.06.

The plaintiffs sued the defendant municipality for negligence and nuisance, alleging that a replacement culvert installed by the municipality caused flooding that damaged their buildings.

The buildings were constructed on the municipality's shore road allowance pursuant to building permits issued decades earlier.

The court found that the new culvert was not the cause of the flooding, as the property had a history of flooding prior to its installation.

Furthermore, the court held that the municipality did not owe a private law duty of care to prevent flooding on its own land, and its decision not to undertake further hydrological studies was a protected policy decision.

The action was dismissed.

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However, the court allowed the appeal regarding the septic permit, finding that compliance with the Building Code superseded the municipal bylaw’s setback requirement.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

The appellants appealed a decision dismissing their application to enforce a Building Code compliance order regarding an unpermitted dwelling unit.

The application judge had found that the building official's act of looking through the window of a storage unit constituted an unlawful warrantless search of a dwelling unit and excluded the evidence.

The Divisional Court allowed the appeal, holding that the official was authorized by statute to inspect the property and that looking through the window of a building not permitted as a dwelling unit did not constitute an unlawful entry into a dwelling unit.

The compliance order was enforced.

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 respondent commenced building a house without a building permit and continued construction despite stop work orders and an interlocutory injunction.

The chief building official applied for an injunction and a demolition order under s. 38 of the Building Code Act.

The application judge declined to order demolition, citing the potential benefit to the community and the environmental impact of wasting building materials.

The Divisional Court allowed the appeal, finding the application judge erred in law by considering these extraneous factors instead of the public interest in safety, consumer protection, and enforcement of the Act.

The court ordered the respondent to demolish the unauthorized construction within 60 days, failing which the municipality is authorized to do so.

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.

The defendants were previously granted leave to examine a non-party under Rule 31.10.

The court had initially expressed reluctance to award costs due to the poor quality of the defendants' motion materials, which made it difficult to determine the relevance of the proposed evidence.

The defendants sought partial indemnity costs of $13,916.32.

The court awarded a reduced lump sum of $3,500, noting that while the defendants satisfied the rule's requirements on their second attempt, the costs award must reflect the inadequacy of their materials, which did not even include a factum.

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 defendants moved under Rule 31.10 of the Rules of Civil Procedure for leave to examine a non-party, a former employee of the plaintiff municipality, under oath.

The underlying action involved allegations that the defendants submitted fraudulent invoices to the municipality.

The court found that the non-party had relevant evidence regarding the invoices and that the defendants had made appropriate efforts to obtain the evidence before resorting to the motion.

The motion was granted, as it would be unfair to require the defendants to proceed to trial without knowing the non-party's evidence.

Two groups of defendants brought summary judgment motions arising from a dispute over festival food and alcohol catering and alleged municipal interference.

The court applied the summary judgment framework and found the evidentiary record sufficient to resolve the matter without a trial.

It held the plaintiffs failed to establish an enforceable long-term oral contract or any viable negligence or negligent misrepresentation claim against the festival defendants, and further held there was no basis for personal liability against the individual directors.

The claims against the mayor and municipality were also dismissed as statute-barred under the Limitations Act, 2002 and, in any event, unsupported by evidence of bad faith or negligence under the Municipal Act, 2001.

The appellants appealed an order of the Surveyor General confirming a survey plan that fixed the position of a concession road allowance and shore road allowance across their property.

The appellants argued the Surveyor General erred by disregarding an original monument and relying on a standard iron bar as the best evidence of the inner limit of the shore road allowance.

The Divisional Court dismissed the appeal, finding no error of law in the application of the hierarchy of survey evidence and no palpable and overriding error in the Surveyor General's factual findings regarding the monuments.

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.

The appeal was dismissed as abandoned after the father's counsel was removed from the record due to loss of contact following his release from jail.

The father failed to inquire about the appeal or provide a parenting plan.

The Divisional Court dismissed the appeal as abandoned and alternatively on the merits, noting that further delay would prejudice the child by delaying a potential adoption.