Executive Summary: Key Legal and Evidentiary Issues

The application constituted a collateral attack on decisions previously made by Justice Fraser and affirmed by the Ontario Court of Appeal regarding the City's easement rights. Abuse of process principles applied where the applicant sought to re-litigate matters already decided by two levels of court without pursuing proper appeal mechanisms. Res judicata barred the application as it challenged the same factual and legal issues already determined in prior proceedings. No serious issue existed to be tried, and the injunctive relief sought would serve no practical purpose given prior court authorization. The application was brought on short notice with procedural irregularities, including voluminous materials served one day before the hearing and a factum served minutes before oral argument. Tactical maneuvering and baseless allegations of bad faith against City officials compounded the abuse of process.

Background to the dispute

The case involves a dispute concerning an easement agreement between Martin Ross, as property owner, and The Corporation of the City of Markham. Justice Fraser had previously rendered a decision affirming the City's rights under this easement agreement in relation to the applicant's property. This earlier decision had been appealed and subsequently upheld by the Ontario Court of Appeal, establishing settled law on the matter.

The application and procedural issues

Martin Ross brought an emergency application before Justice McCarthy seeking to enjoin the City from exercising the rights that had already been explicitly authorized by both the Superior Court and the Ontario Court of Appeal. Rather than pursuing the appropriate appellate route to challenge the prior decisions, the applicant attempted an end-run around established court orders through what the court characterized as a collateral attack.

The application was marked by serious procedural breaches. The applicant served voluminous materials—hundreds of pages of exhibits and supporting documents—merely one day before the scheduled hearing date, severely constraining the respondent's ability to prepare a thorough response. Most troublingly, the applicant's factum was not served until minutes before the hearing commenced, further impeding the respondent's preparation. This conduct required the City to retain and instruct multiple counsel to adequately address the application and respond to unfounded allegations of bad faith and improper conduct leveled against City officials.

Legal findings and doctrine of res judicata

Justice McCarthy found that the application was fundamentally barred by the doctrine of res judicata, which prevents relitigation of issues and facts that have already been decided by a court. Because the City's easement rights and the applicant's remedies had been fully adjudicated and upheld on appeal, the applicant could not use a new application to challenge what was already settled law. The court determined there was no serious issue to be tried, as the substantive legal questions had been exhaustively addressed in the prior proceedings.

Absence of practical purpose

Beyond the res judicata bar, the court found that even if the application had merit, the relief sought would serve no practical purpose. The City's authority to exercise its easement rights had been explicitly confirmed by two levels of court, making any injunction prohibiting such exercise futile and contradictory to established judicial authority.

Ruling and costs sanction

Justice McCarthy dismissed the application entirely, characterizing it as unreasonable, ill-advised, and having no chance of success from inception. The court found the application amounted to an abuse of process that should not have been brought. The procedural tactics employed—the short notice, voluminous late-served materials, last-minute factum, and baseless allegations of misconduct—were flagged as conduct that courts should not tolerate.

Because the City had been entirely successful on the matter and the application represented a collateral attack on previously decided matters brought with tactical maneuvering and abuse of process, Justice McCarthy awarded costs on the higher substantial indemnity scale rather than the partial indemnity scale proposed by the applicant. The court found that The Corporation of the City of Markham was entitled to recover the full amount it sought. On November 24, 2025, the court ordered that Martin Ross pay costs to the City of Markham in the amount of $25,150.41 inclusive of disbursements and HST, recognizing this sum as proportionate to the importance of the matter for the City in defending its clearly defined and court-authorized rights and the serious nature of the injunctive relief that had been sought.