Patrick Gerald Duffy

The Tribunal held a third Case Management Conference regarding an appeal of an Official Plan Amendment that proposed relocating 64 acres of Settlement Area onto prime agricultural lands.

The parties agreed to withdraw and amend certain issues to consolidate the Issues List.

The Tribunal finalized the Procedural Order and Issues List to govern the upcoming three-day video hearing on the merits.

The Ontario Land Tribunal conducted a case management conference to address multiple appeals of the City of Vaughan's Comprehensive Zoning By-law 001-2021 and Transitional By-law 039-2022.

The Tribunal heard and approved several settlement motions on consent, which corrected mapping errors and recognized site-specific exceptions for various properties.

Based on uncontested expert planning evidence, the Tribunal found the amendments consistent with provincial policies and good planning.

The Tribunal also issued an order under section 34(31) of the Planning Act deeming the un-appealed portions of the Comprehensive Zoning By-law to be in force.

The applicants appealed the City of Burlington's failure to make a decision on applications for an Official Plan Amendment and Zoning By-law Amendment to permit a mixed-use development.

At a case management conference, the Tribunal granted party status to the Region of Halton, Conservation Halton, Presidio Construction Limited, and Sofina Foods Inc. The Tribunal also approved a draft Procedural Order and scheduled a three-week hearing on the merits.

The appellant purchased a property formerly owned by a library board, which was subject to a registered restrictive covenant prohibiting commercial use.

The registered covenant failed to identify the benefitted lands, rendering it legally unenforceable.

The respondent, owner of the adjacent lands, successfully applied to a motion judge to rectify the Land Titles Registry to include the benefitted lands.

On appeal, the Divisional Court set aside the rectification, holding that the appellant was a bona fide purchaser for value without actual notice of the benefitted lands.

The court emphasized that constructive notice is insufficient to defeat a registered interest under the Land Titles Act, and the appellant was entitled to rely on the registry's mirror and curtain principles.

A case management conference was held to consider hearing appeals related to the City of Burlington's Official Plan Amendment 119, Zoning By-law Amendment 2020-418, and the new Official Plan together.

The Tribunal ordered the matters to be heard together for case management purposes.

Additionally, the Tribunal granted a motion by 409 Brant St. Ltd., finding that ZBA 2020-418 does not apply to its site, which had the statutory effect of releasing the site from the Interim Control By-law and reinstating its prior zoning.

This was the first Case Management Conference regarding multiple appeals of the new Official Plan for the City of Burlington, as modified and approved by the Regional Municipality of Halton.

The Tribunal granted party and participant status to several requestors and set deadlines for the submission of issues lists and a draft Procedural Order.

A subsequent Case Management Conference was scheduled to address overlapping appeals with another Official Plan Amendment.

The appellant purchased land from the respondent, agreeing to develop it for retail use.

The agreement included an indemnity clause for community cost-sharing agreements.

The appellant later obtained a zoning amendment for residential development, triggering a $2.8 million fee for school lands, and sought indemnity from the respondent.

The application judge dismissed the claim, finding the appellant breached its obligation to develop the land for retail use and could not profit from its own breach.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the application judge's interpretation of the contract.

The applicant residents' associations sought leave to appeal a Local Planning Appeal Tribunal decision that approved a revised development proposal to demolish three houses and build a low-rise apartment in a Heritage Conservation District.

The applicants argued the tribunal made errors of law by deferring to the City's demolition approval under the Ontario Heritage Act, treating demolition as conservation, and failing to assign a higher heritage rating to one of the houses.

The Divisional Court dismissed the application, finding that the tribunal applied the correct legal tests and that the applicants' challenges were directed at findings of fact and mixed fact and law, which are not subject to appeal.

The applicant sought leave to appeal the Director's decision to issue an amendment to an Environmental Compliance Approval for a 12-month pilot program to process municipal de-watered biosolids.

The applicant argued the decision was unreasonable due to the proximity of residential dwellings, cumulative impacts, the operator's track record, and potential health risks.

The Tribunal found the applicant had standing but failed to meet the test for leave to appeal under s. 41 of the Environmental Bill of Rights, 1993, as the Director's decision was reasonable and included appropriate conditions to mitigate environmental harm.

The application for leave to appeal was dismissed.

The appellants appealed a Director's Order regarding the presence and migration of contaminants on three properties.

The appellants requested a continuation of a previously granted stay of certain portions of the Director's Order while they finalized a conceptual site model and work plan.

The Director consented to the request.

The Tribunal found it was not precluded from granting the stay under the Environmental Protection Act and granted the continuation of the stay on consent.

The appellants appealed a preventative measures order issued by the Director of the Ministry of the Environment, Conservation and Parks regarding a steel mill and mining properties owned by an insolvent company.

Following the sale of the company under CCAA proceedings and the execution of agreements to fund and implement environmental action plans, the parties reached a settlement.

The Tribunal found the proposed revocation of the order to be consistent with the Environmental Protection Act and the Ontario Water Resources Act, and in the public interest.

The Tribunal ordered the Director to revoke the order and dismissed the appeals.

The City of Toronto appealed a decision of the Ontario Municipal Board (now LPAT) which adjourned the hearing of appeals regarding Official Plan Amendment 258 (OPA 258) until the City enacted a Development Permit System (DPS) by-law.

The City argued the Board lacked jurisdiction to effectively order the passage of a by-law and denied the City its statutory right to a hearing under the Planning Act.

The Divisional Court dismissed the appeal, finding the Board did not order the passage of a by-law but reasonably exercised its procedural discretion to adjourn the hearing to ensure it had the necessary evidence to properly assess the planning merits of OPA 258.

The appellants appealed a preventative measures order issued by the Director under s. 18 of the Environmental Protection Act regarding a steel mill and mining operations.

The order was issued in response to risks related to the insolvency of Essar Steel Algoma Inc. The parties requested a further adjournment of the appeal proceedings to finalize a settlement agreement in the context of ongoing CCAA proceedings.

The Tribunal granted the adjournment and scheduled a status update telephone conference call.

The Plaintiff, Wonderland Power Centre Inc., initiated an action against Post and Beam on Wonderland Inc. concerning a restrictive covenant on land previously sold by Wonderland's predecessor to the London Public Library Board.

Wonderland sought an injunction, a declaration that the covenant was binding, and rectification of the land register if it was unenforceable.

Post and Beam sought summary judgment dismissing the action and a declaration that the covenant was unenforceable.

The court found the registered restrictive covenant unenforceable due to its failure to identify the benefiting lands as required by the Land Titles Act.

However, the court granted Wonderland's request for rectification of the register, noting Post and Beam's actual notice of the intended restriction.

Wonderland's motion for an interim injunction was dismissed due to a lack of irreparable harm, and Post and Beam's motion for summary judgment was dismissed, with remaining claims for a permanent injunction and damages to proceed to trial.

The defendants, North American (Park Place) Corporation and North American (Park Place East) Corporation, brought a motion under s. 47(1) of the Construction Lien Act to dismiss the plaintiff M. Fuda Contracting Inc.'s construction lien action for delay and release the remaining security.

The court considered the four-year delay, the complexity of the case, the plaintiff's explanation, and the prejudice to the defendants.

While acknowledging the plaintiff's delay exceeded the presumptive two-year ceiling for lien actions, the court found the delay was partially explained by the case's complexity and a document dispute.

The prejudice to the defendants was attenuated by significant reductions in security and the existence of a companion slander of title action.

The motion to dismiss was denied, but the plaintiff was given a "last chance opportunity" to have the matter on the ready trial list by spring 2019, serve expert reports, and arrange a settlement conference by year-end.

The applicant brought a motion to set aside an order dismissing its motion to stay construction of a wind turbine project and its application for judicial review.

The applicant sought an interim injunction to halt construction, alleging violations of the Renewable Energy Approval.

The Divisional Court dismissed the application, finding that the Ministry's letter confirming construction was unavoidable did not constitute the exercise of a statutory power of decision reviewable under the Judicial Review Procedure Act.

Consequently, there was no serious issue to be tried to justify an injunction.

The applicant, Icona Hospitality Inc., sought an order under s. 61(1) of the Conveyancing and Law of Property Act to delete restrictive covenants from the title to its land.

The covenants restricted the site's use solely to a hotel.

Icona proposed a mixed-use high-rise redevelopment, arguing the covenants were spent or unsuitable due to changed planning policies and the area's designation as an Urban Growth Centre.

The respondents, beneficiaries of the covenants, opposed the application, citing potential negative impacts on their own development plans and market competition.

The court dismissed the application, finding that Icona failed to demonstrate that the covenants were spent or so unsuitable as to be of no value, or that their assertion by the respondents would be vexatious.

The court emphasized that the jurisdiction under s. 61(1) must be exercised with caution and an order will seldom be granted if prejudicial to the adjacent landowner, rejecting a simple balancing of monetary interests.

The Alliance to Protect Prince Edward County (APPEC) sought a declaration that a Feed-In-Tariff (FIT) Contract between the Independent Electricity System Operator (IESO) and WPD White Pines Wind Incorporated (White Pines) was null and void, arguing White Pines failed to meet contractual capacity requirements.

APPEC also raised issues of legitimate expectations and negligent misrepresentation by IESO.

The court dismissed APPEC's application, finding that the doctrine of legitimate expectations did not apply as it creates procedural, not substantive, rights, and APPEC was not a party to the contract.

Furthermore, no special relationship existed to support a claim of negligent misrepresentation, and IESO and White Pines properly amended their contract in accordance with the FIT Rules and the Environmental Review Tribunal's decision.

The applicant sought a stay of a Renewable Energy Approval pending a motion for leave to appeal from a Divisional Court order dismissing its application for judicial review.

The Divisional Court had found that the Ministry's letter regarding construction compliance was not a reviewable statutory power of decision, and that the applicant was attempting to disguise a challenge to the REA itself.

The Court of Appeal addressed the jurisdictional question of whether the Divisional Court's decision could be reviewed by the Court of Appeal or only by a panel of the Divisional Court under section 21(5) of the Courts of Justice Act.

The Court held that the panel review process applies and that the applicant must exhaust the Divisional Court's remedial jurisdiction before appealing to the Court of Appeal.

The appellants (tenant and its successor) repudiated a commercial lease for an industrial property owned by the respondent.

The respondent was forced to sell the property and sued for damages.

The trial judge awarded $1,277,000 in damages, including lost rental profits and lost capital appreciation.

The appellants appealed, arguing the sale at fair market value fully mitigated damages and that lost capital appreciation was too remote.

The Court of Appeal allowed the appeal, finding that damages for lost capital appreciation were too remote under the Hadley v. Baxendale test, that the property was sold at fair market value, and that damages should be calculated using a discounted cash flow analysis based on the 2013 sale price with appropriate deductions for mitigation.