Sarah J. Turney

The appellant appealed the dismissal of its application for a prescriptive easement over the respondents' parking spaces.

The Court of Appeal upheld the application judge's finding that the appellant's affidavit evidence failed to establish 20 years of continuous use prior to the property's transfer to the land titles system in 2002, as it did not comply with Rule 39.01(5).

Furthermore, the Court agreed that the use of the parking spaces was a matter of mutual convenience rather than 'as of right'.

The appeal was dismissed with costs awarded to the respondents.

Following the dismissal of an application seeking interpretation of a commercial lease concerning the calculation of property taxes, the successful respondent sought partial indemnity costs exceeding $75,000.

The applicant argued the amount was disproportionate to the approximately $160,000 in dispute and the relatively limited complexity of the proceeding.

The court applied the principles governing reasonable expectations of the losing party under the Boucher line of authorities and assessed the reasonableness of the time spent by counsel and the claimed disbursements.

Finding the claimed hours and overall expenditures excessive for an application hearing lasting less than a day, the court reduced the recoverable costs.

The landlord sought a declaration that the tenant’s share of property taxes under a commercial lease should be calculated on a proportionate share basis following the elimination of separate tenant assessments under amendments to the Assessment Act.

The tenant argued that the lease required the parties to determine what a separate assessment would have been using official information from MPAC valuation records.

The court interpreted the lease according to the parties’ intentions at the time of contracting and held that MPAC valuation records constituted sufficient official information to estimate a separate assessment.

Because the lease contemplated this scenario, the tenant’s taxes were properly calculated using the assessed value approach rather than proportionate share.

The landlord’s application for a declaration was dismissed.

The moving party sought an extension of time to file materials in support of a motion for leave to appeal an Ontario Municipal Board decision until 30 days after the Board disposed of the costs issue.

The respondent developer opposed the extension, arguing the leave motion should proceed without delay.

The court ordered the moving party to file its leave materials by March 30, 2012, but deferred setting a date for the leave motion hearing until the Board fixed its dates for the outstanding issues, balancing the need to avoid undue delay with the efficient use of judicial resources.