Court of Appeal for Ontario

Citation: Wainfleet (Township) v. Vrbicek, 2016 ONCA 123

Date: 20160211

Docket: C60535

Before: Doherty, Epstein and Miller JJ.A.

Between

The Corporation of the Township of Wainfleet

Plaintiff/Defendant by Counterclaim (Respondent)

and

Ivan Vrbicek

Defendant/Plaintiff by Counterclaim (Appellant)

Counsel:

Ivan Vrbicek, appearing in person

Sarah J. Draper, for the respondent

Heard and released orally: February 1, 2016

On appeal from the judgment of Justice W.L. MacPherson, of the Superior Court of Justice, dated December 31, 2014.

ENDORSEMENT

[1] The appellant has essentially reargued the two issues identified by the trial judge in her helpful reasons (paras. 15-16).

The Line Fences Act Issue

[2] The trial judge found that any claim the appellant had with respect to damages flowing from the respondent’s failure to maintain the fence was restricted by the Limitations Act to the period beginning in November 2009.

[3] The appellant accepts this conclusion on appeal.

[4] The trial judge further found that, even assuming the respondent had failed to maintain the fence during the relevant period, the appellant had failed to prove any damages (paras. 86-88). On our review of the record, that finding was available to the trial judge and we see no basis upon which we can interfere with it. The Line Fences Act claim, therefore, was properly dismissed.

The Dispute over the Sale of Parts 7, 10 and 12 of Lot 17 of the Corridor

[5] At trial, the appellant claimed that the parcel of land that the respondent had agreed to sell to the appellant included Parts 7, 10 and 12 of Lot 17. The respondent’s position was that those lots were not included in the parcel or part of the corridor to be sold to the appellant. It is fair to say that this was the most contentious issue at trial. It is essentially a factual issue.

[6] Ultimately, the trial judge accepted the respondent’s contention that the appellant had agreed to purchase the parts of the corridor excluding Parts 7, 10 and 12 of the Lot 17. She thoroughly reviewed the evidence before coming to that finding, including the evidence that a representative of the respondent had altered a document relevant to that sale. Ultimately, the trial judge accepted the evidence put forward by the respondent. She gave extensive reasons for doing so and once again we see no basis upon which we can interfere with that factual finding (paras. 89-102).

[7] We note that the appellant ultimately purchased the part of the corridor that did not include Parts 7, 10 and 12. Any claim, therefore, had to rest in damages for the failure to convey those parts. The trial judge found that the appellant had failed to prove any damages flowing from the failure to convey what the appellant contended was “worthless” land (para. 107). Once again, we see no basis upon which we can interfere with that finding.

[8] The appellant appeals costs. Although he has not formally asked for leave, we treat this as a request for leave to appeal the costs order made by the trial judge.

[9] Costs are in the discretion of the trial judge. She outlined the factors relevant to her assessment of the costs. All of those factors were properly considered by her in the exercise of her discretion. The total amount awarded was well within the reasonableness range having regard to the length of the proceeding. We see no basis upon which leave to appeal the costs order should be granted and we would not grant leave.

Conclusion

[10] The appeal from the dismissal of the claims is dismissed and leave to appeal the costs order at trial is refused.

[11] In our view, the respondent is entitled to its costs of the appeal on a partial indemnity basis. We fix that amount at $8,000, inclusive of relevant taxes and disbursements.

“Doherty J.A.”

“Gloria Epstein J.A.”

“Bradley Miller J.A.”