Roberto Aburto

The moving party, a heritage foundation, sought leave to appeal a decision of the Ontario Land Tribunal that granted zoning and Official Plan amendments to allow the construction of two high-rise buildings in downtown Kingston.

The moving party argued the Tribunal erred in law by failing to interpret the Official Plan as a whole and incorrectly interpreting specific compatibility criteria.

The Divisional Court dismissed the motion, finding that the Tribunal's balancing of the Official Plan's competing objectives of heritage preservation and urban intensification was a question of mixed fact and law, not an extricable error of law.

The applicants and respondent sought a last-minute consent adjournment of a full-day application hearing scheduled for February 21, 2020, citing ongoing settlement discussions that required City Council approval.

The court expressed frustration with the late notice, noting it resulted in wasted judicial and courtroom resources.

The court adjourned the matter to be spoken to at a future motions court, recommending that any new hearing date be made peremptory to both sides.

The applicant's motion to amend its notice of application was previously dismissed.

The respondents sought costs of $12,979.13 on a substantial indemnity basis.

The applicant argued for no costs or deferred costs, citing divided success, novel questions of law, and its impecuniosity due to expropriation.

The court rejected the applicant's arguments, finding the respondents were entirely successful and the applicant's conduct in bringing a duplicative and unnecessary motion warranted rebuke.

The court awarded the respondents costs fixed at $12,000 on a substantial indemnity basis.

The applicants and respondents are neighbours who share a driveway.

The respondents built a fence down the middle of the driveway on their property line, preventing the applicants from accessing their rear parking spaces.

The applicants brought an application claiming a prescriptive easement over the respondents' portion of the driveway based on the doctrine of lost modern grant.

The court found that the applicants established 20 years of continuous, uninterrupted, open, and peaceful use of the driveway prior to the properties being registered in the land titles system.

The application was granted, and the respondents were ordered to remove the fence.