DATE: 20030619
DOCKET: C37941
COURT OF APPEAL FOR ONTARIO
RE: TERRENCE G. GAIN AND DONNA L. GAIN (Applicants/ Respondent in appeal) – and – IDEAL MILK HAULAGE LIMITED and THE CORPORATION OF THE TOWNSHIP OF OTONABEE-SOUTH MONAGHAN (Respondents/Appellant)
BEFORE: O’CONNOR A.C.J.O. MORDEN and SHARPE JJ.A.
COUNSEL: Michael M. Miller, for the appellant, The Corporation of the Township of Otonabee-South Monaghan Bernard Eastman for the respondents Terrence G. Gain and Donna L. Gain
HEARD: June 16, 2003
RELEASED ORALLY: June 16, 2003
On appeal from the decisions of Mr. Justice Donald S. Ferguson of the Superior Court of Justice Dated February 20, May 22 and August 6, 2002.
E N D O R S E M E N T
[1] This appeal involves the application of a zoning bylaw to a particular use of a specific property. The property has now been sold and it is no longer being used in the manner alleged to infringe the bylaw. Moreover, the bylaw itself has been amended and the permitted uses for the subject property have been changed.
[1] In these circumstances, there is no longer a live issue between the parties and the appeal is dismissed as moot.
[2] The appellant seeks leave to appeal the costs order on points unrelated to the merits of the appeal that has been dismissed as moot. The application judge determined that the respondents were entitled to something approaching full indemnity as against Ideal Milk and that the appellant Township should pay costs on a partial indemnity basis. While the total award of $91,107 may be generous, the liability of the appellant was limited to $30,000, an amount within the range of what was reasonable on a partial indemnity basis for the application. There is no appeal by Ideal Milk against the full indemnity award and, in these circumstances, we are not prepared to interfere with the discretion of the application judge.
[3] Accordingly, leave to appeal costs is granted but the appeal is dismissed. Costs to the respondent fixed at $12,000.
“D. O’Connor A.C.J.O”
“J.W. Morden J.A.”
“Robert J. Sharpe J.A.”