Windsor Family Credit Union Limited v. Windsor (City)
The appeal was dismissed because the City sought to raise a new statutory enforcement ground under s.41.1(10) of the Planning Act for the first time on appeal, which is procedurally impermissible and the agreed record lacked the evidence necessary to decide the matter; the application judge's finding that the City...
Source-derived case information.
- Citation
- 2009 ONCA 450
- Parties
- Applicant (respondent in Appeal): Windsor Family Credit Union Limited; Appellant: The Corporation of the City of Windsor; Respondent: Arthur Barat; Respondent: Barat, Farlam, Millson; Respondent: 658686 Ontario Limited; Respondent: William Gerald Docherty; Respondent: R. C. Pruefer Co. Limited; Respondent: Centre Parking Limited Partnership
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 29 May 2009
- Procedural Posture
- Civil / Appeal From Judgment of Superior Court of Justice (bruce G. Thomas J.) Dated October 6, 2008
- Outcome
- Appeal dismissed
- Legal Topics
- Procedural Default on Appeal, Statutory Enforcement Rights, Parking Easements, Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Windsor Family Credit Union Limited
Applicant (respondent in Appeal)
The Corporation of the City of Windsor
Appellant
Arthur Barat
Respondent
Barat, Farlam, Millson
Respondent
658686 Ontario Limited
Respondent
William Gerald Docherty
Respondent
R. C. Pruefer Co. Limited
Respondent
Centre Parking Limited Partnership
Respondent
Procedural Posture
Civil / Appeal From Judgment of Superior Court of Justice (bruce G. Thomas J.) Dated October 6, 2008
Legal Issues
- 1 Whether the City has statutory enforcement rights to parking spaces under s.41.1(10) of the Planning Act
- 2 Whether the appellant may raise the s.41.1(10) ground for the first time on appeal
- 3 Whether the appellant has an interest in land referable to the parking spaces
Ratio Decidendi
The appeal was dismissed because the City sought to raise a new statutory enforcement ground under s.41.1(10) of the Planning Act for the first time on appeal, which is procedurally impermissible and the agreed record lacked the evidence necessary to decide the matter; the application judge's finding that the City had no interest in the land referable to the parking spaces was not shown to be erroneous.
Court Disposition
Appeal dismissed
Orders
- Appeal dismissed
- Costs fixed inclusive of G.S.T. and disbursements on the partial indemnity scale of $25,000 to the respondents represented by Ms. Daly
Full Case Text
Judgment text and source record
1 paragraphs
Windsor Family Credit Union Limited v. Windsor (City) Collection Decisions of the Court of Appeal Date 2009-05-29 Neutral citation 2009 ONCA 450 Docket numbers C49604 Judges Feldman, Kathryn N.; Juriansz, Russell G.; MacFarland, Jean Louise Subject Civil Decision Content CITATION: Windsor Family Credit Union Limited v. Windsor (City), 2009 ONCA 450 DATE: 20090528 DOCKET: C49604 COURT OF APPEAL FOR ONTARIO Feldman, Juriansz and MacFarland JJ.A. BETWEEN: Windsor Family Credit Union Limited Applicant (Respondent in appeal) and The Corporation of the City of Windsor Appellant Arthur Barat, Barat, Farlam, Millson, William Gerald Docherty, R.C. Pruefer Co. Limited, 658686 Ontario Limited and Centre Parking Limited Partnership Respondents (Respondents in Appeal) Mark Nazarewich for the appellant Helen A. Daley for the respondent Arthur Barat and Barat, Farlam, Millson Avril A. Farlam for the respondents 658686 Ontario Limited, William Gerald Docherty, R. C. Pruefer Co. Limited and Centre Parking Limited Partnership Heard and endorsed: May 27, 2009 On appeal from the judgment of Justice Bruce G. Thomas of the Superior Court of Justice, dated October 6, 2008 made at Windsor, Ontario. APPEAL BOOK ENDORSEMENT [1] The appellant raises for the first time on appeal the issue that the City has rights of enforcement to parking spaces that are statutory rights under s. 41.1(10) of the Planning Act. [2] We agree with the respondents that arguing this ground for the first time on appeal is not open to the appellant, both as a matter of practice in this court, as well as because the factual record in the Agreed Statement of Facts and appended documents does not include all of the evidence necessary to fully and properly consider the argument for the first time at this level. [3] The application judge fully considered the issues raised before him and determined that the appellant has no interest in land referable to the parking spaces that are the subject of the application. We see no error in his conclusions and findings. [4] The appeal is therefore dismissed with costs fixed inclusive of G.S.T. and disbursements on the partial indemnity scale of $25,000 to the respondents represented by Ms. Daly and $4,500 to the respondents represented by Ms. Farlam.