Peter A. Hertz

The moving party brought a motion for leave to appeal the order of I.R. Smith J. dated February 25, 2022.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay costs in the amount of $5,000.

The parties reached an agreement regarding the costs of the appeal.

The Court of Appeal ordered costs to the respondent in the agreed amount of $20,000, inclusive of HST and disbursements.

The appellant property owner appealed a decision granting the respondent municipality a prescriptive easement for a watermain installed on the property in 1979-1980.

The appellant argued the municipality's use was not open, that the burden of proof regarding permission was reversed, and that public authorities with expropriation powers cannot acquire prescriptive easements.

The Court of Appeal dismissed the appeal, finding the application judge reasonably inferred the owners had actual or imputed knowledge of the watermain, the lack of evidence of permission rendered any burden of proof issue moot, and there is no legal bar preventing municipalities from acquiring prescriptive easements.

The plaintiff abandoned its motion for an interlocutory injunction after nearly two years.

The defendants sought costs of the abandoned motion on a substantial indemnity scale, payable forthwith.

The court held that, absent extraordinary circumstances, costs of an abandoned injunction motion are payable forthwith.

Finding no reprehensible conduct by the plaintiff, the court awarded costs on a partial indemnity scale, fixing them at $65,908.61 for the Racer Defendants and $22,713.82 for the Standard Defendants.

The Waterloo Region District School Board appealed an Ontario Municipal Board decision awarding interest to Erbsville Road Development Inc. on expropriated land from the date of draft subdivision approval, rather than the later date of actual expropriation.

The Divisional Court dismissed the appeal, holding that under s. 33(1) of the Expropriations Act, interest can accrue from a date preceding expropriation when the owner ceases to make productive use of the land due to the impending expropriation.

The court found the board member's determination that productive use ceased upon draft approval was reasonable.