



COURT OF APPEAL FOR ONTARIO

CITATION: Di Battista Gambin Developments Limited v. Brampton (City), 2018 ONCA 457

DATE: 20180516

DOCKET: C64607

Rouleau, Roberts and Fairburn JJ.A.

BETWEEN

Di Battista Gambin Developments Limited

Applicant (Appellant)

and

The Corporation of the City of Brampton

Respondent

Robert D. Malen, for the appellant

Signe Leisk and Melissa Winch, for the respondent

Heard and released orally: May 10, 2018

On appeal from the order of Justice Thomas A. Bielby of
    the Superior Court of Justice, dated October 17, 2017, with reasons reported at
    2017 ONSC 6178.

REASONS FOR DECISION

[1]

The appellant submits that the application judge erred in his
    interpretation of the Subdivision Agreement. He ought to have found that Block
    203, the land parcel in issue, had been conveyed to the City on condition that
    it be used as a road. The appellant maintains that should Block 203 now, some
    20 years later, not be used for that intended purpose, it is entitled to
    compensation.

[2]

We disagree.

[3]

The Subdivision Agreement provides for the transfer to the respondent of
    several land parcels for various purposes such as park land and roads. In the
    case of some of these parcels, the Subdivision Agreement imposes a condition to
    the effect that the respondent must reconvey it to the appellant if, within 15
    years following signature of the agreement, the parcel is not used for the
    intended purpose. No such condition is attached to Block 203.

[4]

The application judge, reading the agreement as a whole, concluded that
    in the absence of any limit on the respondents ability to deal with Block 203,
    the appellant retained no interest in it. Should the respondent not use the
    property for the originally intended purpose, the appellant has no legal
    entitlement to be compensated, be it pursuant to the agreement, resulting trust
    or unjust enrichment.

[5]

In our view, there was ample evidence to support the application judges
    factual findings. His interpretation of the agreement was reasonable and we see
    no basis to interfere.

[6]

The appellant also seeks to appeal the order as to costs on the basis
    that the application judge ought to have drawn a negative inference because the
    respondent did not disclose its detailed dockets. Rather, the respondent only
    disclosed a summary of the hours and work done. The appellant further submits that
    the award of $53,667 was excessive and the amount awarded should be reduced.

[7]

We disagree. The application judge felt that he had sufficient evidence
    upon which to arrive at an appropriate costs award. That decision is entitled
    to deference and we find no error in the award made.

[8]

For these reasons, the appeal is dismissed with costs to the respondent
    in the amount of $20,000 inclusive of disbursements and applicable taxes.

Paul
    Rouleau J.A.

L.B.
    Roberts J.A.

Fairburn
    J.A.


