Court of Appeal for Ontario

Citation: Lauzon v. Lemieux, 2014 ONCA 159 Date: 2014-02-27 Docket: M42493 (C56481)

Before: Hoy A.C.J.O., Sharpe and van Rensburg JJ.A.

Between:

J. Claude Lauzon Respondent/Plaintiff (Moving Party on Motion)

and

Gaetan Lemieux Appellant/Defendant (Responding Party on Motion)

Counsel: Mario Gravel, for the Respondent/Plaintiff (Moving Party on Motion) Bruce F. Simpson, for the Appellant/Defendant (Responding Party on Motion)

Heard and released orally: February 24, 2014

ENDORSEMENT

[1] The appellant (1) appeals the September 21, 2012 order (the "injunction order") of the motion judge granting a permanent injunction enjoining him from interfering with and trespassing upon the respondent's property interest in a mutual driveway and (2) seeks leave to appeal the costs awarded by the motion judge.

[2] The respondent, in turn, moves to quash the appeals, on the basis that the appellant filed his notice of appeal of the injunction order late and did not seek leave to appeal the costs order within 15 days, as required.

[3] In our view, there is no merit to the appeal of the injunction order and, on that basis, we grant the respondent's motion to quash that appeal. On these facts, the motion judge properly granted an injunction. The appellant had installed a fixed, locked barrier to a mutual driveway. Indeed, the evidence was that the barrier had to be removed – and not merely opened – to permit the respondent to use the driveway.

[4] While leave to appeal costs was not sought within 15 days, as required, the Christmas holidays intervened and there was an intention to appeal in a timely manner. In these circumstances, we dismiss the motion to quash the appeal from costs.

[5] In fixing costs, the motion judge erred in treating what was no more than a restatement of the relief claimed by the respondent in his statement of claim as an offer of settlement capable of attracting substantial indemnity costs. Leave is accordingly granted to appeal the costs award and the costs awarded by the motion judge are reduced by $3,000.

[6] The respondent is entitled to costs in the amount of $10,000, inclusive of disbursements and HST.

"Alexandra Hoy A.C.J.O." "Robert J. Sharpe J.A." "K. van Rensburg J.A."