Court of Appeal Summaries (January 4-8, 2021)

  • January 13, 2021
  • John Polyzogopoulos

TABLE OF CONTENTS

Civil Decisions

Oakville (Town) v. Sullivan, 2021 ONCA 1

Keywords: Real Property, Easements, Propriety Estoppel, Contracts, Interpretation, Building Code Act, 1992, S.O. 1992, c. 23, Fallowfield v. Bourgault (2003), 68 O.R. (3d) 417 (C.A.), Raimondi v. Ontario Heritage Trust, 2018 ONCA 750, Weidelich v. de Koning, 2014 ONCA 736, Hunsinger v. Carter, 2018 ONCA 656, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corp., 2020 SCC 29, Tessaro v. Langlois, 2019 BCCA 95, Twogee Developments Ltd v. Felger Farming Co Ltd, 2017 ABCA 138, Remicorp Industries Inc. v. Metrolinx, 2017 ONCA 443, Kaiman v. Graham, 2009 ONCA 77, Whitby (Town) v. G & G 878996 LM Ltd., 2020 ONCA 654, Clarke v. Johnson, 2014 ONCA 237

Short Civil Decisions

The Ontario College of Teachers v. Bouragba, 2021 ONCA 8

Keywords: Civil Procedure, Appeals, Jurisdiction, Orders, Final or Interlocutory, Stay Pending Appeal, Courts of Justice Act, ss. 137.1, 137.1(5)

CIVIL DECISIONS

Oakville (Town) v. Sullivan, 2021 ONCA 1

[Trotter, Zarnett and Jamal JJ.A.]

COUNSEL:

A. G. Formosa and M. N, for the appellants

C. M. K. Loopstra and S. E. Hamilton, for the respondents

Keywords: Real Property, Easements, Propriety Estoppel, Contracts, Interpretation, Building Code Act, 1992, S.O. 1992, c. 23, Fallowfield v. Bourgault (2003), 68 O.R. (3d) 417 (C.A.), Raimondi v. Ontario Heritage Trust, 2018 ONCA 750, Weidelich v. de Koning, 2014 ONCA 736, Hunsinger v. Carter, 2018 ONCA 656, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corp., 2020 SCC 29, Tessaro v. Langlois, 2019 BCCA 95, Twogee Developments Ltd v. Felger Farming Co Ltd, 2017 ABCA 138, Remicorp Industries Inc. v. Metrolinx, 2017 ONCA 443, Kaiman v. Graham, 2009 ONCA 77, Whitby (Town) v. G & G 878996 LM Ltd., 2020 ONCA 654, Clarke v. Johnson, 2014 ONCA 237

FACTS:

The appellants built a pool, surrounding deck, platform and other elements (“Pool Amenities”) behind their house. The Pool Amenities were on land which, although owned by the appellants, was subject to an easement held by the respondents. The easement prohibited “the erection of any building or structure”. The application judge declared the Pool Amenities to be a “building or structure” erected on land subject to an easement, and thus an encroachment. He also ruled that the equitable doctrine of proprietary estoppel did not prevent the respondents from enforcing their rights. The appellants were ordered to remove the Pool Amenities and remediate any damage.

In obiter dicta, the application judge added that had he not concluded that the Pool Amenities contravened the express terms of the easement, he would have ruled that the respondents had not established an actionable encroachment. He was prepared to accept that the Pool Amenities could cause some unknown, but probably minor, degree of inconvenience to the respondents, however, that is not the test for substantial interference. The appellants appealed.