Court of Appeal for Ontario

CITATION: Shergar Developments Inc. v. Windsor (City), 2007 ONCA 667

DATE: 20070928

DOCKET: C43281

BEFORE: LASKIN, JURIANSZ and ROULEAU JJ.A.

BETWEEN:

SHERGAR DEVELOPMENTS INC.

Applicant

and

THE CORPORATION OF THE CITY OF WINDSOR

Respondent

AND BETWEEN:

THE CORPORATION OF THE CITY OF WINDSOR

Plaintiff by Counterclaim (Respondent on Appeal)

and

SHERGAR DEVELOPMENTS INC. AND CANADIAN PACIFIC RAILWAY COMPANY

Defendants to the Counterclaim (Appellant on Appeal)

Counsel:

Steven F. Rosenhek and Brad R.G. Moore for the appellant

Stephen F. Waqué and Gabrielle K. Kramer for the respondent

Heard: September 24, 2007

On appeal from the judgment of Terrence L.J. Patterson of the Superior Court of Justice dated February 18, 2005.

APPEAL BOOK ENDORSEMENT

[1] We did not find it necessary to call on the respondent, The City of Windsor. It was open to the trial judge to find that CPR’s obligation to maintain the bridges continued after its abandonment of the railway line, in our view, the trial judge’s order was fair and reasonable to both parties. He awarded damages representing the least cost to restore the municipal roads to grade. In substance, he terminated CPR’s obligation to maintain the bridge once it had paid the amount needed to put the City in its pre-resolution position.

[2] The appeal is therefore dismissed. The City is entitled to its costs of the appeal and the cross-appeal in the agreed upon amount of $28,000 inclusive of disbursements and G.S.T.