



COURT OF APPEAL FOR ONTARIO

CITATION:
Northmarket
    Holdings Inc. v. Redvers, 2012 ONCA 149

DATE: 20120308

DOCKET: C54308

Feldman, Hoy JJ.A. and Spence J. (
Ad Hoc
)

BETWEEN

Northmarket Holdings Inc.

Plaintiff (Appellant)

and

Michael Redvers, Terry Redvers,1591957 Ontario
    Inc.,1124760 Ontario Inc., Quality Haulage & Farming Ltd., Natcor
    Construction Inc., MAR-SAN Excavating & Grading Ltd., Detra Builders Inc.,
    John EEK & Son  Ltd. Maacon Construction Corporation, The Corporation of
    the Regional Municipality of York,
The
    Corporation of the Town of Newmarket
and the York Region District School
    Board.

Defendants (
Respondent
)

and

Lindvest Properties (Valleyview) Limited

Third Party
    (Respondent)

James J. Feehely and Colleen E. Butler, for the appellant

C.M. Loopstra, Q.C and Fiona H Li, for the respondent,
    The Corporation of the Town of Newmarket

Donald Rogers, for the respondent, Lindvest Properties
    (Valleyview) Limited

Heard and released orally: February 16, 2012

On appeal from the order of Justice Mark L. Edwards of
    the Superior Court of Justice, dated august 5, 2011.

ENDORSEMENT

[1]

The appellant land owner authorized its tenant to deposit some fill on
    the demised land.  The tenant allowed third parties to deposit significantly
    more fill than authorized by the appellant.  It appears that the source of some
    of that fill was a subdivision within the Corporation of the Town of
    Newmarket.  The appellant sued Newmarket for negligence.

[2]

The motion judge distinguished the case relied on by the appellant,
Berendson
    v. Ontario
, [2001] 2 S.C.R. 849, found that Newmarket did not owe the
    appellant a duty of care and dismissed the appellants claim against
    Newmarket.

[3]

We agree with the motion judge that
Berendson
is very much
    distinguishable and that, on the facts of this case, Newmarket did not owe a
    duty of care to the appellant to ensure that not more fill than the appellant
    had authorized its tenant to deposit on the demised land was dumped there by
    parties developing subdivisions in Newmarket.

[4]

We do not find it necessary to address the more general issue of the
    potential scope of a municipalitys private duty of care in other
    circumstances.

[5]

In his factum, the appellant sought leave to appeal the costs order of
    the motion judge.  We see no error in principle in the motion judges exercise
    of discretion in fixing costs.

[6]

The appeal is dismissed, with costs in the agreed upon amounts of
    $10,442.89 to Newmarket and $7,499.85 to Linvest, both inclusive of
    disbursements and HST.

K. Feldman J.A.

Alexandra Hoy
    J.A.

Spence J. (ad
    hoc)


