



COURT OF APPEAL FOR ONTARIO

CITATION: Wainfleet
    (Township) v. Vrbicek, 2016 ONCA 123

DATE: 20160211

DOCKET: C60535

Doherty, Epstein and Miller JJ.A.

BETWEEN

The Corporation of the Township of Wainfleet

Plaintiff/Defendant by Counterclaim (
Respondent
)

and

Ivan Vrbicek

Defendant/Plaintiff by Counterclaim (
Appellant
)

Ivan Vrbicek, appearing in person

Sarah J. Draper, for the respondent

Heard and released orally:  February 1, 2016

On appeal from the judgment of Justice W.L. MacPherson,
    of the Superior Court of Justice, dated December 31, 2014.

ENDORSEMENT

[1]

The appellant has essentially reargued the two issues identified by the
    trial judge in her helpful reasons (paras. 15-16).

The
Line Fences Act
Issue

[2]

The trial judge found that any claim the appellant had with respect to
    damages flowing from the respondents failure to maintain the fence was
    restricted by the
Limitations Act
to the period beginning in November
    2009.

[3]

The appellant accepts this conclusion on appeal.

[4]

The trial judge further found that, even assuming the respondent had
    failed to maintain the fence during the relevant period, the appellant had
    failed to prove any damages (paras. 86-88).  On our review of the record, that
    finding was available to the trial judge and we see no basis upon which we can
    interfere with it.  The
Line Fences Act
claim, therefore, was properly
    dismissed.

The Dispute over the Sale of Parts 7, 10 and 12 of Lot 17 of
    the Corridor

[5]

At trial, the appellant claimed that the parcel of land that the
    respondent had agreed to sell to the appellant included Parts 7, 10 and 12 of
    Lot 17.  The respondents position was that those lots were not included in the
    parcel or part of the corridor to be sold to the appellant.  It is fair to say
    that this was the most contentious issue at trial.  It is essentially a factual
    issue.

[6]

Ultimately, the trial judge accepted the respondents contention that
    the appellant had agreed to purchase the parts of the corridor excluding Parts
    7, 10 and 12 of the Lot 17.  She thoroughly reviewed the evidence before coming
    to that finding, including the evidence that a representative of the respondent
    had altered a document relevant to that sale.  Ultimately, the trial judge
    accepted the evidence put forward by the respondent.  She gave extensive
    reasons for doing so and once again we see no basis upon which we can interfere
    with that factual finding (paras. 89-102).

[7]

We note that the appellant ultimately purchased the part of the corridor
    that did not include Parts 7, 10 and 12.  Any claim, therefore, had to rest in
    damages for the failure to convey those parts.  The trial judge found that the
    appellant had failed to prove any damages flowing from the failure to convey
    what the appellant contended was worthless land (para. 107).  Once again, we
    see no basis upon which we can interfere with that finding.

[8]

The appellant appeals costs.  Although he has not formally asked for
    leave, we treat this as a request for leave to appeal the costs order made by
    the trial judge.

[9]

Costs are in the discretion of the trial judge.  She outlined the
    factors relevant to her assessment of the costs.  All of those factors were
    properly considered by her in the exercise of her discretion.  The total amount
    awarded was well within the reasonableness range having regard to the length of
    the proceeding.  We see no basis upon which leave to appeal the costs order
    should be granted and we would not grant leave.

Conclusion

[10]

The
    appeal from the dismissal of the claims is dismissed and leave to appeal the costs
    order at trial is refused.

[11]

In
    our view, the respondent is entitled to its costs of the appeal on a partial
    indemnity basis.  We fix that amount at $8,000, inclusive of relevant taxes and
    disbursements.

Doherty J.A.

Gloria Epstein J.A.

Bradley Miller J.A.


