Sarah J. Turney

In an appeal concerning adverse possession of municipal parkland, the appellants sought possessory title to a fenced portion of backyard land registered to the municipality.

The majority held that recognizing a common law immunity for municipal parkland would conflict with Ontario’s statutory scheme under the Real Property Limitations Act and related legislation, which preserves matured possessory claims unless a statutory exception applies.

Because the statutory test for adverse possession was satisfied and no applicable statutory immunity barred the claim, the municipality’s title had been extinguished.

The appeal was allowed and the appellants were entitled to fee simple title to the disputed land.

The Ontario Land Tribunal issued a procedural order on consent of the parties to govern the upcoming five-day hearing regarding appeals of a proposed zoning by-law amendment and draft plan of subdivision.

The appeals relate to the creation of 12 lots with commercial lodges and a future development block.

The order sets out the issues list, order of evidence, and deadlines for the exchange of witness statements and other materials.

Following an interim decision regarding the assessment of two properties in Brampton, the parties conferred and reached an agreement on the current values and apportionments for the taxation years under appeal.

The Assessment Review Board ordered that the current values and apportionments be revised in accordance with the parties' agreement, as set out in the attached schedules.

The applicant appealed the City of Burlington's failure to make a decision on Official Plan and Zoning By-law amendment applications to permit a high-rise residential development.

The parties reached a settlement for a revised proposal consisting of 22-storey and 17-storey towers connected by a 6-storey podium.

The Tribunal accepted uncontested expert planning evidence that the settlement proposal is consistent with the Provincial Policy Statement, conforms to the Growth Plan and applicable Official Plans, and represents good land use planning.

The appeals were allowed in part, with the final order withheld pending the satisfaction of conditions.

Appeals and cross-appeals were brought regarding the property assessments of a special purpose food processing facility (slaughterhouse and poultry processing plant) for the 2017 to 2023 taxation years.

The Board determined the current value of the properties using the Cost Approach.

The Board established a land rate of $401,101.61 per acre for non-farmed land, relying on comparable sales of partially serviced industrial lands.

For improvements, the Board preferred the appellant's expert evidence, finding a reproduction cost new of $32,875,599 with a 14% functional obsolescence rate due to the piecemeal construction of the facility.

The Board declined to apply an equitable adjustment, finding insufficient evidence that the assessment was inequitable compared to similar lands in the vicinity.

The Ontario Land Tribunal issued a procedural order following a case management conference regarding appeals by the applicant against the municipality's failure to adopt requested official plan and zoning by-law amendments.

The amendments seek to permit the construction of two 20-storey high-rise residential condominium buildings.

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

The appellants appealed the City of Toronto's adoption of Official Plan Amendment No. 560 (OPA 560), which established the new Sheppard Willowdale Secondary Plan.

Prior to the scheduled hearing, the parties reached a settlement.

Based on the uncontested land use planning evidence of the City's planner, the Tribunal found that the proposed modifications to OPA 560 were consistent with the Provincial Policy Statement, conformed to the Growth Plan, and represented good planning.

The Tribunal allowed the appeals in part and approved the modified OPA 560.

The appellants sought title to a portion of municipal parkland that their predecessors had fenced off and exclusively used since at least 1971.

The application judge dismissed the claim, finding that municipal parkland is immune to adverse possession.

The Court of Appeal dismissed the appeal, holding that while there is no absolute common law immunity, municipal parkland is presumptively unavailable for adverse possession under the 'public benefit' test unless the municipality has waived its rights or acquiesced to the possession.

The dissenting judge would have allowed the appeal, arguing that the Real Property Limitations Act provides a complete code that does not exempt municipal parkland.

The Ontario Land Tribunal held a second Case Management Conference regarding appeals by multiple landowners against the City of Toronto's adoption of Official Plan Amendment No. 560, which amends the eastern segment of the Sheppard Willowdale Commercial Area Secondary Plan.

The Tribunal approved an updated Procedural Order and Issues List, noting that the City and one appellant, SheppBonn Ltd., were still finalizing their specific issues.

The Tribunal set deadlines for the parties to resolve the outstanding issues and scheduled the hearing.

The appellant brought a motion to exclude a spreadsheet from the documents the respondent could rely on at the hearing.

The spreadsheet was filed past the deadline set out in the Board's Schedule of Events.

The Board found that the spreadsheet was not served and filed in accordance with the Rules of Practice and Procedure.

As neither party made submissions regarding exceptional circumstances, the Board ordered that the spreadsheet not be admitted into evidence.

The appellants appealed the City of Toronto's adoption of Official Plan Amendment No. 560, which amends the Sheppard Willowdale Commercial Area Secondary Plan.

At the first Case Management Conference, the parties requested the scheduling of a second CMC to finalize the Procedural Order and Issues List, as well as a 10-day hearing on the merits.

The Tribunal scheduled the second CMC for February 28, 2023, and the 10-day hearing for July 24, 2023.

The Municipal Property Assessment Corporation (MPAC) brought a motion requesting that three separate property assessment appeals concerning two adjacent properties operated as a single business follow a common Schedule of Events for their remaining due dates.

The City of Brampton supported the motion, while the property owner opposed it, arguing potential prejudice.

The Assessment Review Board granted the motion, finding that a common schedule would avoid duplication of effort, ensure consistency in decision outcomes, and result in the most expeditious and least expensive determination of the proceedings without prejudicing any party.

The Ontario Land Tribunal heard Phase 2 of appeals regarding the Yonge and Bernard Key Development Area (KDA) Secondary Plan and Zoning By-law in the City of Richmond Hill.

The hearing focused on site-specific development applications and policies for the eastern quadrants and the Di Pede lands in the northwest quadrant.

The Tribunal approved the City's proposed modifications, which were supported by expert planning, transportation, and environmental evidence.

The Tribunal upheld the Greenway System designation and natural hazard buffer requirements for the northeast quadrant, dismissing the appeals of North Elgin Centre Inc. (NEC), which failed to call any evidence.

All other appeals were dismissed, bringing the Secondary Plan and Zoning By-law into effect for the remaining lands.

The applicant appealed the municipality's refusal to enact an Official Plan Amendment and Zoning By-law Amendment to permit a seniors' residential development.

Prior to the hearing, the parties reached a settlement and presented revised planning instruments.

Based on the uncontradicted expert planning evidence, the Tribunal found that the proposed development satisfies all legislative tests, is consistent with provincial policy, and demonstrates due consideration for the heritage character of the surrounding area.

The appeal was allowed in part to approve the revised amendments.

The Ontario Land Tribunal held a Case Management Conference to settle the Issues and Procedural Order for Phase 2 of a hearing regarding multiple appeals of Official Plan and Zoning By-law amendments in the Town of Richmond Hill.

The Tribunal approved the City's proposed Hearing Plan, which divided the hearing into four sub-phases, and rejected attempts by North Elgin Centre Inc. to expand the issues list to include area-wide matters such as the location of the Bernard Bus Terminal.

The Tribunal also corrected a minor omission in a previous zoning by-law amendment and dismissed a renewed motion for recusal.

The applicant appealed the City of Toronto's refusal of a zoning by-law amendment to permit a 29-storey mixed-use building on a small mid-block site on Bloor Street West.

The City and local residents' associations opposed the development, arguing it represented an overdevelopment of a small site, lacked appropriate tower setbacks, and would create negative shadow and sky view impacts.

The Tribunal allowed the appeal in part, finding that the proposed canyon form tall building represented an appropriate optimization of the site and a transit-supportive intensification that was consistent with the Provincial Policy Statement and conformed to the Growth Plan.

The Tribunal concluded that the proposed access arrangements were functional and the building's massing and lack of side yard setbacks did not create unacceptable adverse impacts in the downtown context.

Following the release of the appeal judgment, the parties requested on consent to amend the partial indemnity costs of the applications below.

The Court of Appeal allowed the amendment, reducing the costs awarded to the appellants for the proceedings below from $93,000 to $55,000, inclusive of disbursements and taxes.

This appeal concerned a property dispute between neighbours over a two-foot wide strip of land.

The application judge had declared a prescriptive easement over a driveway portion and ownership by adverse possession over a backyard portion in favour of the respondents (original applicants).

The Court of Appeal found that the application judge made palpable and overriding errors.

Specifically, the court determined that the alleged prescriptive easement over the driveway was not "reasonably necessary" for the better enjoyment of the dominant tenement, but rather a personal convenience.

For the adverse possession claim, the court found the application judge misapprehended evidence regarding the true owner's exclusion from the backyard portion.

The appeal was allowed, setting aside the lower court's judgment and declaring the appellants' title unencumbered.

The court clarified the terms of an easement previously granted to Vivekanandan over Terzian's property.

The dispute centered on the precise description of the easement's southern boundary, specifically how it interacts with a "grassy area" at the northern end of the island.

The court adopted Vivekanandan's interpretation, ruling that the easement's southern boundary follows the diagonal line of the grassy island, rather than a squared-off line proposed by Terzian, to ensure the easement includes all intended paved areas.

Following a judgment where Vivekanandan successfully established an easement and adverse possession over a disputed area, they sought costs on a substantial indemnity basis under Rule 49 of the Rules of Civil Procedure.

The court declined to award substantial indemnity, noting that Rule 49.10 is more appropriately applied to monetary judgments and that Vivekanandan was not entirely successful on all aspects of their claim.

The court awarded costs on a partial indemnity basis, finding the requested amount of $93,107.99 (including fees, HST, and disbursements) to be reasonable given the complexity and effort involved in the property title litigation, consistent with the principle of indemnity and reasonable expectations.