Court File and Parties
CITATION: Windsor Family Credit Union Limited v. Windsor (City), 2009 ONCA 450
DATE: 20090528
DOCKET: C49604
COURT OF APPEAL FOR ONTARIO
Feldman, Juriansz and MacFarland JJ.A.
BETWEEN:
Windsor Family Credit Union Limited
Applicant (Respondent in appeal)
and
The Corporation of the City of Windsor
Appellant
Arthur Barat, Barat, Farlam, Millson, William Gerald Docherty, R.C. Pruefer Co. Limited, 658686 Ontario Limited and Centre Parking Limited Partnership
Respondents (Respondents in Appeal)
Counsel:
Mark Nazarewich for the appellant
Helen A. Daley for the respondent Arthur Barat and Barat, Farlam, Millson
Avril A. Farlam for the respondents 658686 Ontario Limited, William Gerald Docherty, R. C. Pruefer Co. Limited and Centre Parking Limited Partnership
Heard and endorsed: May 27, 2009
On appeal from the judgment of Justice Bruce G. Thomas of the Superior Court of Justice, dated October 6, 2008 made at Windsor, Ontario.
APPEAL BOOK ENDORSEMENT
[1] The appellant raises for the first time on appeal the issue that the City has rights of enforcement to parking spaces that are statutory rights under s. 41.1(10) of the Planning Act.
[2] We agree with the respondents that arguing this ground for the first time on appeal is not open to the appellant, both as a matter of practice in this court, as well as because the factual record in the Agreed Statement of Facts and appended documents does not include all of the evidence necessary to fully and properly consider the argument for the first time at this level.
[3] The application judge fully considered the issues raised before him and determined that the appellant has no interest in land referable to the parking spaces that are the subject of the application. We see no error in his conclusions and findings.
[4] The appeal is therefore dismissed with costs fixed inclusive of G.S.T. and disbursements on the partial indemnity scale of $25,000 to the respondents represented by Ms. Daly and $4,500 to the respondents represented by Ms. Farlam.