Paula Lombardi

The appellant, 2708959 Ontario Inc., appealed the dismissal of its application regarding four structures encroaching on a municipal road allowance in Stratford.

The Court of Appeal upheld the application judge’s finding that the City of Stratford had not expressly or tacitly approved the encroachments when the building and site plan drawings were approved in 1998.

The court found that the onus was on the original proponent and their advisors to bring the encroachments to the City’s attention, and that approval of site plans and occupancy permits did not constitute approval of the encroachments.

The appeal was dismissed, and costs were awarded to the City.

The applicants, Paul and Roberta Bennett, sought a declaration of a right-of-way over property owned by the respondents, Kimberly Chadwick and Cressview Lakes Corporation, and an order requiring removal of a fence allegedly impeding their access.

The dispute centered on the location of the right-of-way and whether the applicants’ access was impeded.

The court found that the original right-of-way was over Lot 45 (not Lot 46), as established by a 1961 resolution and a 1974 agreement, and that the fence did not impede access.

The application was dismissed.

The Court of Appeal for Ontario considered the issue of costs following an appeal between the Township of Adelaide Metcalfe and the Municipality of Strathroy-Caradoc.

The court determined that there would be no costs of the appeal, as the determinative issue was not raised before the Divisional Court.

The costs previously ordered by the Divisional Court were set aside.

The appellant municipality appealed a Divisional Court order that quashed an Ontario Land Tribunal decision assuming jurisdiction over a dispute regarding a municipal servicing agreement.

The Court of Appeal held that the Tribunal's decision was interlocutory, as it only assumed jurisdiction on a prima facie basis and deferred the final determination of forum to the Superior Court.

Because the Ontario Land Tribunal Act only permits appeals of final decisions, the Divisional Court lacked jurisdiction to hear the appeal.

The appeal was allowed and the Tribunal's order was restored.

The plaintiffs sought damages and declarations regarding environmental contamination at 65 Heward Avenue.

The defendants moved to strike the plaintiffs' amended statement of claim under Rule 21.01(1)(b) for disclosing no reasonable cause of action, arguing that the plaintiffs knew of the contamination upon purchase, the limitation period had expired, and the claim lacked sufficient particulars for negligence, strict liability, and statutory claims under the Environmental Protection Act.

The court dismissed the motion, finding that the defendants were not barred by delay or pleading over, the plaintiffs' knowledge of contamination was not fatal, the limitation period issue required evidence, and the claim provided sufficient particulars for all causes of action, including novel applications of strict liability.

The applicants sought an order for the removal of a gate obstructing a shared right-of-way and an injunction against further interference.

The respondents argued the gate was for security and brought a motion to strike parts of the applicants' affidavits.

The court granted the applicants' motion to strike scandalous allegations from the respondents' affidavits, finding them irrelevant.

The court then determined that the gate constituted a substantial interference with the applicants' right-of-way, particularly for vehicular access, and rejected the respondents' security justification as insufficient.

The court ordered the gate's removal and restrained the respondents from further obstruction.

The applicants sought a declaration of a prescriptive easement or an ancillary right to park on a private road (Hunters Road) owned by the respondent, which they used to access their cottages.

The court dismissed the application, finding that the applicants failed to establish the elements for a prescriptive easement, specifically that their use was "peaceful" and "uninterrupted" for the requisite 20-year period due to the respondent's consistent objections.

Furthermore, the court found that parking on Hunters Road was not "reasonably necessary" for the enjoyment of their properties, as their respective title documents provided for alternative parking solutions.

The applicant corporation sought various forms of relief regarding building encroachments on a municipal road allowance in Stratford, Ontario, including a concrete retaining wall, a wooden access ramp, a concrete step, and a single-car parking space.

The applicant argued the encroachments were authorized, constituted legal non-conforming uses, or that the municipality was estopped from requiring an encroachment agreement.

The court dismissed the application, finding no explicit or tacit authorization for the encroachments, that they did not meet the criteria for legal non-conforming use, and that the elements for proprietary estoppel against the municipality were not established.

The London District Catholic School Board applied for relief from the Municipal Conflict of Interest Act (MCIA) provisions, specifically sections 5, 5.2, and 5.3, due to a quorum issue caused by seven of eight trustees declaring conflicts of interest.

These conflicts arose from family members being employed by the Board, particularly concerning the ratification of a collective agreement and the approval of the annual budget.

The court found that while section 7(3) of the MCIA (quorum less than two) was not engaged, the exemption under section 4(k) applied, as the pecuniary interests of the trustees were deemed too remote or insignificant to reasonably influence their decisions on these specific matters.

The court granted relief for the specific collective agreement and budgets but declined a sweeping general exemption for all future matters, emphasizing a case-by-case application of section 4(k) and the importance of self-policing and accountability.

Following dismissal of an application alleging that a municipality and its mayor and councillors conspired in bad faith to block a bridge expansion project through heritage and demolition control by-laws, the court determined the issue of costs.

The court found the allegations of conspiracy, illegality, and bad faith against the municipal defendants to be entirely without merit and emphasized that unsubstantiated allegations of dishonesty justify elevated costs.

Applying the principles in s. 131 of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure, the court awarded substantial full indemnity costs to the successful municipal respondents and individual councillors, subject to proportionality considerations reflecting differing levels of participation.

The court held that both the applicants and the Canadian Transit Company—though formally a respondent but aligned with the applicants—were jointly and severally responsible for the costs award.