CITATION: 1000758840 Ontario Ltd. v. City of Toronto, 2025 ONSC 2084
DIVISIONAL COURT FILE NO.: 264/24
DATE: 20250408
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, Shore, and O’Brien, JJ
BETWEEN:
1000758840 Ontario Ltd. o/a Niagara Neighbours for Community Safety
Appellant
- and -
The City of Toronto and St. Felix Centre
Respondents
COUNSEL:
Erik K. Gillespie, for the Appellant
Alison Barclay, for City of Toronto
Kyle Gossen, for St. Felix Centre
HEARD at Toronto: March 25, 2025
ENDORSEMENT
D.L. Corbett J. (Orally)
[1] We are all of the opinion that this appeal has little merit. We dismiss it substantially for the Reasons of L. Brownstone J. (2024 ONSC 1835).
[2] The City’s Transportation Department has now issued an encroachment permit and the patio has been constructed. The Decision of Brownstone J. does not imply that further approvals beyond the encroachment permit are, or are not, required for the patio. The Decision of Brownstone J. does not address the application of municipal bylaws to the construction or the operation of the patio. None of those issues was before Justice Brownstone and none of them may be raised before us on an appeal from her.
[3] Brownstone J. appropriately refused to admit legal opinions as evidence through the Appellant’s expert witness. In the circumstances of this case – given the use the Appellant sought to make of those opinions as being “in evidence” – refusing to admit them into evidence outright was the preferable course.
[4] Finally, we reject the argument that the process below was unfair because the issue of prematurity was not argued by the parties or raised with them by the court. The question of whether the patio had to be considered to determine the issues before the Chief Building Official was squarely before Brownstone J, and thus the status of decision-making respecting the patio was relevant. Brownstone J.’s comments about prematurity were helpful obiter dicta and not necessary beyond the conclusion that the status of the patio did not affect the merits of the Chief Building Official’s impugned decision.
[5] The appeal is dismissed.
Costs[^1]
[6] Costs are an indemnity. There is no reason not to apply the usual principles regarding costs to this case: the appellant should indemnify the respondents on a partial indemnity basis. There is no merit to the argument advanced by Mr Gillespie that this court is, or should be, constrained in its costs award by the order for security for costs made by Matheson J. in this case (2024 ONSC 4964). Different principles apply to an order for security for costs and an order for payment of costs to successful parties at the conclusion of a case.
[7] The Appellant shall pay costs to each of the Respondents of $7,500.00, inclusive (for an aggregate amount of $15,000.00), payable within thirty days. Any issue about payment out of the funds held as security for costs to meet this court’s costs order may be addressed in writing, to be decided by O’Brien J., or as O’Brien J. may direct.
“D.L. Corbett J.”
I agree: “Shore J.”
I agree: “O’Brien J”
Released: April 8, 2025
CITATION: 1000758840 Ontario Ltd. v. City of Toronto, 2025 ONSC 2084
DIVISIONAL COURT FILE NO.: 264/24
DATE: 20250408
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, Shore and O’Brien JJ.
BETWEEN:
1000758840 Ontario Ltd. o/a Niagara Neighbours for Community Safety
Appellant
- and -
The City of Toronto and St. Felix Centre
Respondents
ENDORSEMENT
D.L. Corbett J.
Released: April 8, 2025
[^1]: The costs reasons were not included in the oral decision provided in court on March 25, 2025.