Raymond Andrew Biggart

The Local Planning Appeal Tribunal issued a procedural order on consent for the hearing of appeals by 738489 Ontario Limited regarding the City of Toronto's failure to make a decision on a zoning by-law amendment and site plan application for a mixed-use development.

The order sets out the organization of the hearing, requirements before the hearing, the list of parties and participants, the issues list, and the order of evidence.

The moving party sought leave to appeal a decision of the Local Planning Appeal Tribunal (LPAT) regarding the applicable legislative and policy framework for a subdivision development proposal.

The LPAT had determined that the current policy regime applied, relying on the retroactive application of s. 22.1 of the Planning Act to establish the request date.

The Divisional Court dismissed the motion for leave to appeal, finding that the LPAT's determination involved questions of mixed fact and law, and that the issues raised were not of sufficient general or public importance to warrant the court's attention.

The defendants, having successfully obtained a dismissal of the plaintiffs' action on limitation grounds, sought costs on a substantial indemnity basis.

The plaintiffs opposed, arguing the issues were not complex and that allegations of fraud were not adjudicated.

The court considered the complexity of the original claim, the significant amount claimed, the plaintiffs' pursuit of a statute-barred action despite early notice, and unsubstantiated allegations of fraud.

Applying Rule 57.01 factors, the court found that the plaintiffs' conduct warranted an award of costs higher than partial indemnity.

The defendants brought motions for summary judgment to dismiss the plaintiffs' action as statute-barred under the Limitations Act, 2002.

The plaintiffs had previously commenced an action in 2011 based on the same core facts, which was dismissed as abandoned.

The plaintiffs argued the limitation period was postponed due to fraudulent concealment, claiming they only discovered confirming evidence in 2013.

The court found the 2011 claim provided irrefutable evidence that the plaintiffs had discovered their claim by July 2011.

The court rejected the fraudulent concealment argument, granted summary judgment, and dismissed the action.

The appellant appealed an order confirming emergency orders issued by the municipality's Chief Building Official under the Building Code Act, which required the appellant to pay the costs of terminating an immediate danger posed by an exposed wall.

The appellant argued the application judge failed to consider equitable set-off.

The Court of Appeal dismissed the appeal, finding that the appellant had not raised the issue of equitable set-off before the application judge and it would be contrary to the interests of justice to allow the new argument on appeal.

The moving parties sought leave to appeal a decision of the Local Planning Appeal Tribunal (LPAT).

The City of Toronto, which took the same position as the moving parties before LPAT, did not appeal and took no position on the motion.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving parties to pay costs of $15,000 to the respondent developer.

The Town of Grimsby appealed a decision declaring that a private works yard was a permitted use on the respondent's property, which was zoned as a 'Utility Zone'.

The Town argued the use must be related to a public or quasi-public utility.

The Court of Appeal dismissed the appeal, finding that the application judge correctly applied the modern principles of statutory interpretation.

The zoning by-law unambiguously defined 'Works Yard' as a permitted use without restricting it to public or utility purposes, and the by-law's plain language governed.

The appellants sought to develop land pursuant to an amended development agreement with the Town of Ajax.

The agreement contained repurchase terms that could be invoked if the developer failed to take reasonable steps to proceed with construction by a specified deadline, provided it was not awaiting comments or confirmation of approval on any application from the Town.

The Town terminated the agreement and exercised its repurchase rights, claiming the developer's revised site plan application was incomplete and the construction deadline had passed.

The trial judge found in favour of the Town.

On appeal, the appellants argued the trial judge erred in failing to apply the Planning Act's definition of a complete site plan and in conflating completeness with readiness for approval.

The Court of Appeal upheld the trial judgment, finding the site plan application was incomplete as a matter of contract interpretation because the developer had not submitted all requested materials and was not awaiting Town approval but rather the Town was awaiting responses from the developer.

The plaintiffs, Central Park Ajax 1 Developments Phase 1 Inc. and LeMine Real Estate Consulting Inc., brought a claim for $300 million in damages and declaratory relief against The Corporation of the Town of Ajax and Rob Ford, alleging breach of contract, defamation, and unlawful interference.

The core dispute revolved around the Town's right to repurchase development lands due to the plaintiffs' alleged failure to commence construction by a contractual deadline.

The court was asked to determine two key issues: (1) whether LeMine was awaiting approval for a site plan application from the Town on or prior to July 17, 2017, which would invalidate the repurchase notice, and (2) if not, whether the Town had the right to repurchase the lands due to LeMine's failure to start construction by July 16, 2017.

The court found that LeMine had not submitted a complete site plan application sufficient for council consideration and was therefore not "awaiting confirmation of approval." Furthermore, the court interpreted the development agreement, considering both intrinsic and extrinsic evidence, to conclude that LeMine was contractually obliged to commence construction by July 15, 2017, and failed to do so.

Consequently, the Town's repurchase notice was deemed valid, and the plaintiffs' claims were dismissed on these issues.

The applicant municipality sought leave to appeal an Ontario Municipal Board decision approving a zoning by-law passed by a neighbouring municipality to permit a major tourist destination, including a casino.

The applicant raised eight questions of law, arguing the OMB misinterpreted the Planning Act, regulations, and official plans regarding municipal council decisions, complete applications, holding provisions, and public works.

The Divisional Court dismissed the application, finding the OMB's interpretations were reasonable and within its specialized planning expertise.

The plaintiff sued the defendant shipping company for lost profits after a software update allegedly deleted a custom mark-up feature, causing the plaintiff to underbill its clients for two years.

The defendant brought a motion for summary judgment, relying on an exclusion clause in the software agreement that barred claims for lost profits.

The court granted the motion, finding the exclusion clause applied, was not unconscionable, and did not violate public policy.

The court also granted the defendant's counterclaim for unpaid invoices.

Following a decision in which the respondent municipality successfully obtained an order approving a demolition order and finding the applicant in contempt, the respondent sought costs on a substantial indemnity basis.

The applicant did not dispute the disbursements or the scale of costs but argued the quantum was conflated with the contempt penalty.

The court applied the principles for elevated costs, finding this was a rare and exceptional case where the applicant's behaviour warranted sanction.

The court awarded the respondent substantial indemnity costs fixed at $27,790.90.

The property owner's dwelling was damaged by fire, leading the municipality to issue a demolition order.

The owner previously obtained a consent order staying the demolition on the condition that she take specific steps to repair the property within six months.

After the owner failed to take any of the required steps for over 18 months, the municipality brought a motion for an order to demolish the property and to find the owner in contempt.

The court granted the motion, ordering the demolition of the property and finding the owner in contempt of the previous order, with the penalty phase adjourned.

The appellant appealed a decision dismissing its application for a declaration that it was exempt from municipal taxes on certain railway lands under s. 315 of the Municipal Act.

The appellant argued the lands were leased to a third party for valuable consideration.

The Divisional Court upheld the application judge's finding that the agreements between the parties created a business relationship akin to a joint venture, not a lease, as they did not grant exclusive possession.

The appeal was dismissed.

The appellants appealed a Director's Order requiring them to develop and implement measures to prevent adverse effects from the discharge of contaminants at a former manufactured gas plant site.

The parties agreed to two work plans and requested an adjournment of the hearing to allow for the implementation of these plans and to amend the compliance dates in the Director's Order.

The Tribunal found the adjournment request fair and reasonable under Rule 105 and granted the adjournment to June 2017 for a status update.

The Town of Georgina brought a motion for an interim restraining order to prevent the respondents from dumping fill on a former pit property without a permit under the Town's Site Alteration By-law.

The respondents argued they were importing fill to rehabilitate the land pursuant to a site plan under the Aggregate Resources Act.

The court granted the interim restraining order, finding a serious issue to be tried, no irreparable harm to the respondents if delayed, and that the balance of convenience favoured the Town and the province, as the corporate owner of the land had been dissolved and the property was vested in the Crown.

The Town of Oakville sought judicial review of an Ontario Municipal Board decision that permitted a temporary change of use for two commercial properties to be farmed, providing a tax benefit.

The temporary change expired before the hearing, and the respondents did not appear.

The Divisional Court declined to hear the application, finding the matter moot and noting that deciding a case with broad policy implications without adversarial submissions would breach procedural fairness.

The respondent sought costs following dismissal of the applicant municipality’s application on the basis that the Ontario Municipal Board was the more appropriate forum.

The municipality argued that no costs should be awarded because the court did not determine the merits of the dispute and the matter might proceed before the Board.

The court rejected that submission, holding that the municipality chose to bring the proceeding in the Superior Court and the application was dismissed.

Partial indemnity costs were awarded to the respondent, though reduced due to excessive fees and some duplication.

The court fixed costs and disbursements payable within 60 days.

The applicant municipality sought a declaration that a developer had no right of appeal to the Ontario Municipal Board from council’s refusal to approve an official plan amendment redesignating employment lands to mixed use areas.

The court considered whether it should determine the jurisdictional issue or defer to the tribunal.

The court held that although it possessed concurrent jurisdiction, the tribunal had broader expertise in interpreting official plans and planning legislation.

The court therefore declined jurisdiction and dismissed the application, finding the tribunal to be the more appropriate forum to determine the appeal rights under the Planning Act.

The appellants, who engaged in 'assessment farming' on lands zoned for employment and commercial uses, applied to the Normal Farm Practices Protection Board for an exemption from a municipal zoning by-law under the Farming and Food Production Protection Act, 1998.

The Board granted the exemption, but the Divisional Court set aside the decision.

On appeal, the Court of Appeal affirmed the Divisional Court's decision, holding that the Act protects normal farm practices on agricultural lands but does not grant the Board jurisdiction to override municipal zoning by-laws that prohibit farming as a land use.