Michael M. Miller

The appellants purchased two parcels of land in an unorganized township in the District of Parry Sound and sought a declaration that Trussler Road, which crossed respondents' private property, was a public highway.

The appellants claimed the road qualified as a public highway under section 261 of the Municipal Act based on colonization road status, statute labour, or dedication and acceptance.

The motion judge dismissed the claims on all grounds.

The Court of Appeal upheld the dismissal, finding no reversible error in the motion judge's conclusion that the appellants failed to establish dedication and acceptance on the evidence.

The court found the use of the road was consistent with neighbourly tolerance rather than public dedication.

This decision addresses the costs arising from the plaintiffs' unsuccessful motion for summary judgment and the dismissal of the balance of their main action concerning the public highway status of Trussler Road.

The defendants, as the wholly successful parties, sought partial indemnity costs.

The court, applying principles from the Courts of Justice Act and Rules of Civil Procedure, awarded the defendants costs for both the motion and the main action, adjusting the hourly rate for counsel to align with previous decisions in the case.

The plaintiffs brought a motion for summary judgment seeking a declaration that Trussler Road, located in an unorganized township, is a public road under the Municipal Act, thereby allowing them access to their rural property.

The court found that while the Municipal Act definition of a public highway applies to unorganized townships, the evidence did not establish that Trussler Road was a colonization road, that statute labour was usually performed on it, or that it had been dedicated and accepted for public use.

The court dismissed the plaintiffs' motion for summary judgment and, finding no genuine issue requiring a trial, dismissed the plaintiffs' action in its entirety.

The Municipality of West Nipissing sought partial indemnity costs after successfully obtaining an injunction against the respondents for operating an unauthorized automobile repair shop.

The respondents opposed the costs, arguing the matter was not complex or important, and that the claimed costs were excessive.

The court found the matter important to the Municipality and upheld the full amount of partial indemnity costs claimed, addressing objections regarding excessive hours, computer research fees, photocopy charges, long-distance calls, courier costs, mileage for out-of-town counsel, and law clerk fees.

The Municipality of West Nipissing sought an injunction to restrain the respondents from operating an automobile repair shop, alleging contravention of a zoning by-law.

The respondents claimed legal non-conforming use.

The court found that the respondents failed to establish that an auto repair shop was operating at the property when the prohibiting by-law was enacted, as prior repairs were incidental to a towing business.

Furthermore, they failed to prove continuous operation of an auto repair shop after the towing business moved.

Consequently, the current use was not a legal non-conforming use, and the injunction was granted.

The defendants brought a motion for partial summary judgment to dismiss the plaintiffs' claim for a declaration that their property access was an "access road" or "common road" under the Road Access Act.

The plaintiffs cross-moved for summary judgment, asserting the access was a public highway or, alternatively, an access/common road.

The court applied summary judgment principles, finding no genuine issue requiring a trial regarding the "spur road" not meeting the Act's definitions.

Evidence indicated the spur road had not been used by motor vehicles for over 30 years, was overgrown, and lacked a railway crossing mechanism, thus not serving as a motor vehicle access route.

The defendants' motion was granted, dismissing the plaintiffs' claim under the Act.

The plaintiffs' cross-motion regarding the public highway claim was adjourned, and the alternative claim regarding access/common road was dismissed.

This decision addresses the costs of a motion brought by the Plaintiffs to amend their Statement of Claim, which was largely opposed by the Municipality.

The Municipality was entirely successful in opposing the amendments related to a new cause of action.

The court found the Municipality was entitled to partial indemnity costs as the successful party.

After reviewing the submissions and considering factors under Rule 57.01, the court fixed costs at $4567.19, representing 66% of the Municipality's claimed partial indemnity costs, payable by the Plaintiffs to the Municipality.

The plaintiffs brought a motion to amend their Statement of Claim, which originally sought damages for flooding allegedly caused by the defendant municipality's improper installation of a culvert.

The proposed amendments sought to add a new cause of action regarding a boundary dispute over a driveway.

The municipality consented to amendments related to the culvert but opposed those related to the boundary dispute.

The court dismissed the contested amendments, finding they constituted an entirely new cause of action that would unduly delay the trial and cause non-compensable prejudice to the municipality.

The applicants were wholly successful in their application for mandatory orders requiring the demolition of structures built without building permits, and in dismissing the respondents' counter-application.

The court determined costs by written submissions.

The respondents argued the costs sought were excessive and that the applicants had over-lawyered the matter.

The court rejected these arguments, finding the time spent and rates charged by the applicants' senior counsel to be fair, reasonable, and proportional.

The court awarded the applicants their requested partial indemnity costs of $25,643.68, inclusive of fees, disbursements, and HST.

The Municipality of Dysart and its Chief Building Official brought an application for a mandatory order requiring the respondents to demolish several structures built without building permits, and an injunction restraining the use of a logging museum for concerts without a change of use permit.

The respondents brought a counter-application seeking an order directing the issuance of a building permit for the museum addition and a declaration that permits were not required for other structures.

The court dismissed the respondents' counter-application, finding they failed to appeal the Chief Building Official's decision within the statutory timeframe and that the official correctly interpreted the Building Code regarding change of use.

The court granted the municipality's application, ordering the demolition of the unpermitted structures and issuing an injunction against holding concerts at the museum.

Following reasons on the underlying application, the court determined the appropriate costs award.

Applying s. 131(1) of the Courts of Justice Act and the discretionary factors in Rule 57 of the Rules of Civil Procedure, the court emphasized the result of the proceeding, the reasonableness of the steps taken, and proportionality.

Although the respondent argued that the applicants’ legal fees were high relative to his own expenses, the court found the applicants’ partial indemnity bill of costs and disbursements generally reasonable.

Exercising its discretion, the court fixed partial indemnity legal fees at $65,000 plus HST and disbursements.

The respondent was ordered to pay total costs of $84,092.17.

A municipality sought an order requiring demolition of a waterfront structure constructed on Lake Rosseau, asserting that the respondent had built a boathouse with living accommodations in violation of zoning and planning by-laws.

The respondent argued the structure was a water aerodrome registered with Transport Canada and therefore immune from municipal regulation under the doctrine of interjurisdictional immunity.

The court examined the chronology of events, the respondent’s intentions, and the actual use and design of the structure.

It concluded the aerodrome registration was an attempt to circumvent municipal zoning restrictions and that the structure functioned as a boathouse rather than an aeronautical facility.

The court held that municipal planning and zoning laws applied and ordered demolition of the structure.