Court of Appeal for Ontario

Date: 2017-09-12 Docket: C63289

Judges: Strathy C.J.O., van Rensburg and Trotter JJ.A.

Between

Huszti Holdings Inc. Applicant/Respondent in appeal

and

Your Quick Gateway (Windsor) Inc., The Corporation of the City of Windsor, and The Attorney General of Canada Respondents/Appellants in appeal

Counsel

Mark P. Nazarewich, for the appellants

Shaun F. Laubman and Niklas Holmberg, for the respondent

Heard: September 8, 2017

Appeal

On appeal from the order of Justice Thomas A. Heeney of the Superior Court of Justice, dated December 28, 2016.

Appeal Book Endorsement

[1] The sole issue is whether the application judge erred in concluding that the transformer easement had expired – that is, whether it continued to be required for an approach lighting system for runway 30 at the Windsor airport.

[2] We agree with the respondent's submission that the appellants' critical problem is that they failed to provide any evidence on the application to support their position that the transformer easement was still required for the purpose for which it was granted.

[3] We would add that the appellants' own witness's evidence served to demonstrate on a balance of probabilities that the transformer easement was not required. That evidence, together with evidence that the easement had not been required since its grant in 1965, evidence of the long-term plans with respect to runway 30 (that contemplated neither an approach lighting system nor any transformer), and the communication from Nav Canada served to support the application judge's findings.

[4] The appellants have demonstrated no palpable and overriding error. The appeal is therefore dismissed. Costs to the respondent in the amount of $27,000, all inclusive.