Toronto (City) v. 1291547 Ontario Inc. et al., (2001) 148 O.A.C. 212 (CA)

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Citation: (2001), 148 O.A.C. 212 (CA)
• Date: 11 April 2001

Toronto v. 1291547 Ont. Inc. (2001), 148 O.A.C. 212 (CA)

MLB headnote and full text

Temp. Cite: [2001] O.A.C. TBEd. AP.078

City of Toronto (applicant/respondent in appeal) v. 1291547 Ontario Inc. and 1291549 Ontario Inc. (respondents/appellants)

(M27171; C35719)

Indexed As: Toronto (City) v. 1291547 Ontario Inc. et al.

Ontario Court of Appeal

Osborne, A.C.J.O.

April 18, 2001.

Summary:

The City of Toronto applied for a declaration that the respondents were using certain premises as an entertainment facility contrary to the City's zoning bylaw. The respondents cross-applied for a declaration that the zoning bylaw was void for vagueness. Cullity, J., ordered that the City's application for a declaration proceed by application and that there be an expedited trial of the issue of whether the respondents should be permanently enjoined from operating their business as an entertainment facility (see [2000] O.T.C. 615). Nordheimer, J., ruled that the use of the respondents' premises violated the City's zoning bylaw and that the bylaw was not vague or ambiguous (see [2000] O.T.C. 909). The respondents appealed from Nordheimer, J.'s order and moved for a stay pending appeal (what they were really seeking was the adjournment of the trial of the remedy related issues).

The Ontario Court of Appeal, per Osborne, A.C.J.O., dismissed the motion for a stay.

Practice - Topic 8954

Appeals - Stay of proceedings pending appeal - What constitutes "irreparable harm" - [See Practice - Topic 8958 ].

Practice - Topic 8958

Appeals - Stay of proceedings pending appeal - Balance of convenience and justice - The City of Toronto applied for a declaration that the respondents were using premises as an entertainment facility contrary to the zoning bylaw - Cullity, J., ordered that the City's application for a declaration proceed by application and that there be an expedited trial of the issue of whether the respondents should be permanently enjoined from operating their business as an entertainment facility - Nordheimer, J., ruled that the use of the respondents' premises violated the City's zoning bylaw and that the bylaw was not vague or ambiguous - The respondents appealed from Nordheimer, J.'s order and moved for a stay pending appeal (what they were really seeking was the adjournment of the trial of the remedy related issues) - The Ontario Court of Appeal, per Osborne, A.C.J.O., dismissed the motion - The respondents had not established a serious issue or a strong prima facie case - There was no irreparable harm where the respondents had not changed their business operations and any expenses incurred if the trial went ahead and their appeal was later allowed could be taken into account in costs or damages - The balance of convenience favoured disposing of the remedy issues expeditiously, consistent with Cullity, J.'s order, and the completion of the adjudication of the issues so the liability and remedy issues could be dealt with in one appeal.

Counsel:

Raj Anand, for the appellants;

Andrew Weretelnyk and Roberto Zuech, for the respondent.

This motion was heard on April 11, 2001, before Osborne, A.C.J.O., of the Ontario Court of Appeal, who delivered the following endorsement on April 18, 2001.