COURT OF APPEAL FOR ONTARIO

CITATION: Drake v. Stratford (City), 2015 ONCA 497

DATE: 20150703

DOCKET: C59980

BEFORE: Laskin, Pardu and Brown JJ.A.

BETWEEN

Thomas Glen Drake and David Hugh Drake

Applicants (Appellants)

and

The Corporation of the City of Stratford

Respondent (Respondent)

COUNSEL:

D. Andrew Thomson, for the appellants

Michael A. van Bodegon and D. Veinot, for the respondent

Heard and released orally: June 26, 2015

On appeal from the judgment of Justice Paul J. Henderson of the Superior Court of Justice, dated January 6, 2015.

ENDORSEMENT

[1] The Drakes brought an application to quash the City’s 2014 resolution and for an injunction restraining the City from erecting or maintaining a barrier to restrict access from Joffre Street to the rear of their property. The application judge dismissed the application.

[2] On appeal, the Drakes make three submissions:

(1) The application judge erred by holding that the court proceedings in 2009 gave rise to issue estoppel;

(2) The application judge erred by holding that the resolution was not discriminatory; and

(3) The application judge erred by preferring the evidence of the City’s deponent over that of Thomas Drake.

[3] We do not agree with the appellants’ submissions.

[4] We agree with the application judge that the doctrine of issue estoppel applied. The question to be decided in both pieces of litigation was in substance the same. In the previous litigation the Drakes sought, and were denied an injunction to remove the concrete barrier. That denial was not appealed. Thus, the dismissal of the request for an injunction amounted to a judicial determination that the City had the right to maintain a barrier preventing access to Joffre Street.

[5] In this litigation the Drakes sought to prevent the City from maintaining a barrier preventing access from the rear of their property to Joffre Street. That is the same question that was before the court and decided in 2009. It matters not that the City proposes to replace the concrete barrier with a wood barrier. And it matters not where the wood barrier will be located as both the roadway and the grassy strip are owned by the City. Our disposition of the appellants’ first submission is sufficient to resolve this appeal.

[6] Accordingly the appeal is dismissed. The respondent is entitled to its costs of the appeal, which we fix in the agreed on amount of $13,000 inclusive of disbursements and applicable taxes.

“John Laskin J.A.”

“G. Pardu J.A.”

“David Brown J.A.”