





CITATION: 433583 Ontario Limited v. Metropolitan Toronto
      Condominium Corporation No. 935, 2011 ONCA 156



DATE: 20110228



DOCKET: C49018



COURT OF APPEAL FOR ONTARIO



Winkler C.J.O., Rosenberg and Goudge JJ.A.



BETWEEN



433583 Ontario Limited



Applicant (Respondent in Appeal)



and



Metropolitan Toronto Condominium Corporation No. 935



Respondent (appellant)



Blaine Fedson, for the appellant



Jack Copelovici, for the respondent



Heard and endorsed: February 24, 2011



On appeal from the judgment of Justice Peter Jarvis of the
          Superior court of Justice, dated May 28, 2008.



APPEAL BOOK ENDORSEMENT



[1]

The appeal is dismissed. We agree with the reasons of Jarvis J. To deal
    with the issues raised by the appellant, we are satisfied that there was an
    evidentiary basis for finding that all the conditions for proprietary estoppel
    were made out. In particular, a review of the record establishes that the unconscionability
    requirement was made out having regard to the course of dealings involving the
    respondents predecessor in title.

[2]

As to the
Planning Act
, R.S.O. 1990, c. P.13, we are satisfied
    that s. 50(14) of that Act is a complete answer, assuming without deciding,
    that the
Planning Act
applies to an easement created by court order.

[3]

Finally it appears that the parties have not been able to agree on the
    terms and conditions of the easement.  Counsel for the respondent stated before
    us that the respondent was prepared to abide by the terms and conditions in the
    1987 Agreement with the addition of a condition that the easement not be used
    by construction equipment. If there is any lack of clarity in the 1987 terms
    and conditions as amended by these reasons concerning construction equipment,
    that matter is remitted to the application judge.

[4]

Accordingly, the appeal is dismissed with costs fixed at $10,000
    inclusive of disbursements and applicable taxes.


