Court of Appeal for Ontario

Citation: Brampton (City), 2018 ONCA 457

Date: 2018-05-16

Docket: C64607

Judges: Rouleau, Roberts and Fairburn JJ.A.

Parties

Between

Di Battista Gambin Developments Limited Applicant (Appellant)

and

The Corporation of the City of Brampton Respondent

Counsel

Robert D. Malen, for the appellant

Signe Leisk and Melissa Winch, for the respondent

Hearing

Heard and released orally: May 10, 2018

On appeal from: the order of Justice Thomas A. Bielby of the Superior Court of Justice, dated October 17, 2017, with reasons reported at 2017 ONSC 6178.

Reasons for Decision

[1] The appellant submits that the application judge erred in his interpretation of the Subdivision Agreement. He ought to have found that Block 203, the land parcel in issue, had been conveyed to the City on condition that it be used as a road. The appellant maintains that should Block 203 now, some 20 years later, not be used for that intended purpose, it is entitled to compensation.

[2] We disagree.

[3] The Subdivision Agreement provides for the transfer to the respondent of several land parcels for various purposes such as park land and roads. In the case of some of these parcels, the Subdivision Agreement imposes a condition to the effect that the respondent must reconvey it to the appellant if, within 15 years following signature of the agreement, the parcel is not used for the intended purpose. No such condition is attached to Block 203.

[4] The application judge, reading the agreement as a whole, concluded that in the absence of any limit on the respondent's ability to deal with Block 203, the appellant retained no interest in it. Should the respondent not use the property for the originally intended purpose, the appellant has no legal entitlement to be compensated, be it pursuant to the agreement, resulting trust or unjust enrichment.

[5] In our view, there was ample evidence to support the application judge's factual findings. His interpretation of the agreement was reasonable and we see no basis to interfere.

[6] The appellant also seeks to appeal the order as to costs on the basis that the application judge ought to have drawn a negative inference because the respondent did not disclose its detailed dockets. Rather, the respondent only disclosed a summary of the hours and work done. The appellant further submits that the award of $53,667 was excessive and the amount awarded should be reduced.

[7] We disagree. The application judge felt that he had sufficient evidence upon which to arrive at an appropriate costs award. That decision is entitled to deference and we find no error in the award made.

[8] For these reasons, the appeal is dismissed with costs to the respondent in the amount of $20,000 inclusive of disbursements and applicable taxes.

"Paul Rouleau J.A."

"L.B. Roberts J.A."

"Fairburn J.A."