COURT FILE NO.: 150/07
DATE: 20080625
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, MOLLOY AND SWINTON JJ.
B E T W E E N:
YORK CONDOMINIUM CORPORATION NO. 98
Applicant
(Respondent in Appeal)
- and -
LIVINGSTON JEFFERS and PAMELIA JEFFERS
Respondents
(Appellants in Appeal)
George F. Vella, for the Applicant (Respondent in Appeal)
Lorne Levine, for the Respondents (Appellants in Appeal)
HEARD at Toronto: June 25, 2008
JENNINGS J.: (Orally)
[1] At the outset of this hearing, we raised with counsel the question of our jurisdiction to hear this appeal, given that the order of the applications judge was in the main, for injunctive relief.
[2] Appellants’ counsel made it clear to us that notwithstanding what might be inferred from the Notice of Appeal and the factum, the appeal was restricted to the finding in paragraph 3 of the order that the appellants were to pay the respondent $5,500, and in paragraph 6 of the order, to pay $4,000 for costs. The appellants were not appealing those paragraphs of the order dealing with injunctive relief. The only allegation of a breach of natural justice is the failure of the applications judge to grant an adjournment with respect to the claims for monetary payment to which I have previously referred.
[3] No issue is taken with the decision of the applications judge to proceed with the claims for injunctive relief.
[4] On that basis, we accepted jurisdiction under section 19(1)(a) of the Courts of Justice Act.
[5] The granting of an adjournment was in the discretion of the applications judge. His discretion will not be interfered with on appellate review absent a finding of error in principle or a failure to act judicially.
[6] There is nothing in the material before us to show how an adjournment would have been of any assistance to the appellants or could have affected the result. There was no evidence of prejudice to the appellants in the denial of an adjournment. It is conceded that the barrels were illegally placed by the appellants. There was nothing to suggest that the cost of removal was improper or other than the result of the appellants’ illegal actions.
[7] There is accordingly no ground to suggest the improper exercise of the applications judge’s discretion.
[8] The costs of the application was also a matter within the discretion of the applications judge.
[9] The substantial issue before him on the application was the claim for injunctive relief, upon which the respondent was successful.
[10] The amount awarded by the applications judge was entirely reasonable for the matter before him.
[11] The appeal must be dismissed.
COSTS
[12] I endorse the back of the Record: “The appeal is dismissed for oral reasons delivered today. Costs fixed at $3,500, inclusive of disbursements and GST, payable forthwith.”
JENNINGS J.
MOLLOY J.
SWINTON J.
Date of Reasons for Judgment: June 25, 2008
Date of Release: July 2, 2008
COURT FILE NO.: 150/07
DATE: 20080625
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, MOLLOY AND SWINTON JJ.
B E T W E E N:
YORK CONDOMINIUM CORPORATION NO. 98
Applicant
(Respondent in Appeal)
- and -
LIVINGSTON JEFFERS and PAMELIA JEFFERS
Respondents
(Appellants in Appeal)
ORAL REASONS FOR JUDGMENT
JENNINGS J.
Date of Reasons for Judgment: June 25, 2008
Date of Release: July 2, 2008