Valerie M'Garry

This is a costs endorsement following an appeal decision released on May 8, 2017.

The appellants were successful on appeal and the cross-appeal was dismissed.

The appellants sought partial indemnity costs in the amount of $38,105.67, including disbursements and HST.

The respondent did not dispute the quantum but argued that no costs should be awarded or alternatively that costs should be left to the application judge or awarded in the cause.

The court awarded costs to the appellants in the full amount requested, applying the ordinary practice that the successful party on appeal receives reasonable, fair and proportionate partial indemnity costs.

The appellants appealed an application judge's order declaring an Order to Remedy Unsafe Building null, void, and inoperative.

The respondent cross-appealed seeking an interim injunction to prevent demolition and a declaration that the building was not unsafe.

The Court of Appeal found that the application judge made two errors: first, in finding that service of the Order to Remedy was defective when it was properly served on the owner by registered mail in compliance with the Building Code Act; and second, in finding that the Order to Remedy lacked the required specificity.

The Court held that the Order to Remedy contained sufficient particularity to enable the respondent to understand the case it had to meet and the deficiencies requiring remediation.

The appeal was allowed, the cross-appeal dismissed, and the issues of interim injunction and whether the building was unsafe were remitted to another application judge.

The defendants brought a Rule 21 motion to determine questions of law regarding applicable limitation periods and proper parties in an action for damages arising from a municipal drain.

The court held that the limitation period in s. 111 of the Drainage Act applies only to proceedings before a referee, not the Superior Court, meaning s. 45 of the former Limitations Act applied to the plaintiffs' claims.

The court also found that the one-year limitation period under s. 46 of the Professional Engineers Act applied to the claims against the engineering defendants.

Finally, the court determined that under s. 79 of the Drainage Act, the municipality is strictly liable for damages caused by the condition of drainage works, precluding claims against the other defendants.

On a summary judgment motion in long-running drainage litigation, the moving defendants sought dismissal on limitation grounds and substantial indemnity costs.

The responding plaintiffs opposed and sought related procedural relief, including amendment of pleadings to particularize nuisance and to plead discoverability and fraudulent concealment.

The court held that the record disclosed multiple genuine issues requiring a trial, including disputed facts regarding design, construction, disclosure obligations, and the interaction of potentially applicable statutory limitation regimes.

Summary judgment was dismissed, leave to further amend the amended statement of claim was granted, and the matter was directed to proceed expeditiously toward trial.