Court Of Appeal Summaries (July 4 – July 8)

Hello everyone,

Below are the summaries of this week's civil decisions released by our Court of Appeal. Areas of law covered include Municipal Law, Civil Procedure, Administrative Law, Contracts, Family Law, Crown Liability, Condominium Law, and Real Property Law.

Please feel free to share this blog with anyone whom you think would be interested. As always, we welcome your comments and feedback. Have a great weekend.

CIVIL DECISIONS

Foley v. St. Marys (Town), 2016 ONCA 528

[Pepall, Tulloch and Pardu JJ.A.]

Counsel:

M. Cook, for the appellants

T. J. Hill, E. P. Costello and M. A. Cowan, for the respondent

Keywords: Municipal Law, Heritage Building, Ontario Heritage Act, Application to Quash Bylaw, Illegality, Municipal Act, 2001, s. 273(5), Limitation Period, Fixtures, Chattels

Facts:

This appeal concerns a municipal heritage designation of a landmark commercial property located in the downtown core of St. Marys, Ontario. In 1884, a two-storey brick and stone building was constructed in St. Marys for a local jeweller. For over a century, the building was home to the family jeweller shop. The shop's interior contained walnut showcases, counters, mirrors, and a tall wall clock. In 2004, the appellants purchased the property from the family jewellers and leased it until 2010.

In 2007 the respondent, the Corporation of the Town of St. Marys wrote the appellants to introduce the possibility of a heritage designation for the property. The appellants said they were not interested in participating in the process. The Town later advised that they would proceed without the appellants' support. In January, 2008 the Town attempted to provide formal notice to the appellants of its intention to pass a bylaw designating the building as a heritage building, but they did not write out the proper postal code on the notice, and the appellants consequently claimed they never received it. However, the appellants did admit to seeing the Town's notice of 'intent to designate' published in the local newspaper in accordance with the provisions of the Ontario Heritage Act. The town did not receive any objections to the designation.

In February, 2008, the Town passed bylaw 14-2008, which designated the appellants' property a heritage building. The designation included the original exterior and interior heritage attributes. In August 2009, the appellants successfully applied for and received municipal heritage funding from the Town based on the heritage designation. The appellants again successfully applied for additional heritage funding in Oct. 2009. On December 2, 2009, the Town registered the heritage designation bylaw on title to the appellants' property in accordance with the provisions of the OHA. In early 2010, the appellants attended a Town Hall meeting where one of the appellants, Mr. Foley, was presented with a designation plaque. In June 2010, the appellants listed the property for sale, and after not receiving much interest they blamed the Town and their heritage designation of the interior features of the building as the cause of their inability to sell the property.

The appellants applied for an order quashing the bylaw for illegality and, in the alternative, severing those parts of the bylaw that purported to designate the interior features, fixtures and chattels of the building. They also sought interlocutory injunctive relief and damages for unlawful interference. The application judge dismissed the application. Given the error in the postal code, he concluded that the Town could not meet its onus of proving that notice was properly given under s. 67 of the OHA. However, he found that the appellants had actual notice of the notice of designation and failure to strictly comply with s. 67 of the OHA rendered the designating bylaw voidable, and not void ab initio as argued by the appellants. He then held that the one year limitation period in s. 273(5) of the Municipal Act, 2001 was dispositive of the application to quash. He therefore dismissed the application, including the alternative claim to quash the bylaw in part by severing all reference to the interior features from the designation.

He further concluded that the Town's authority to designate was limited to real property including fixtures, but that the walnut showcase, counters, mirrors, and the wall clock, were fixtures. The appellants argue that the application judge erred in finding that the heritage designation was not void ab initio given the lack of notice and for concluding that the interior features were fixtures, rather than chattels, and that they were therefore real property.

Issues:

(1) Did the application judge err in finding that the heritage designation was not void ab initio?

(2) Did the application judge err in concluding that the interior features were fixtures rather than chattels?

Holding: Appeal dismissed.

Reasoning:

(1) No. The application judge's conclusion was fully supported by the law. In reaching his determination, he relied on Re Clements & Toronto, [1960] O.R. 18 (C.A.). That decision dealt with a largely similar predecessor provision of the Municipal Act, 2001 and an application to quash. A lower court had quashed a bylaw on the basis that it was void ab initio. Relying on the limitation period in the Municipal Act, this court had overturned that decision due to the failure of the applicant to bring the notice of application within one year after the passing of the bylaw. It did so notwithstanding the finding that the bylaw was void ab initio.

(2) Not decided. The application judge was correct in dismissing the application in full on the basis of the limitation period. There is therefore no need to address his findings on the scope of the designation (of chattel vs. fixtures).

Baradaran v. Alexanian, 2016 ONCA 533

[Rouleau, van Rensburd and Benotto J.J.A.]

Counsel:

M. Baradaran, acting in person

L. Century and C. Sinclair, for the respondents

Keywords: Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Friviolous, Vexatious, Abuse of Process, Rules of Civil Procedure, Rules 21.01(3)(d) and 25.11, Summary Judgment, Rule 20 Facts:

The appellant commenced an action against the respondent Alexanian, a lawyer, his law firm and his professional corporation. He claimed damages for breach of certain "service agreements" under which he claimed to be owed fees for working on Alexanian's client files. He also claimed solicitors' negligence in respect to five actions in the Superior Court. The respondents moved to strike, without leave to amend, paragraphs 17 to 21 of the statement of claim. The motion judge granted the motion and struck the impugned paragraphs without leave to amend, finding them to be "clearly vexatious and an abuse of process."

Issues:

(1) Whether the motion judge erred in approaching the motion to strike the pleadings under rules 21.01(3)(d) and 25.11 as though he were determining a motion to a summary judgment motion.

Holding: Appeal allowed.

Reasoning:

(1) Yes. The motion judge erred in approaching the motion to strike pleadings, under rules 21.01(3)(d) and 25.11, as though he were determining a motion for summary judgment under rule 20. The motion judge accepted the solicitor's evidence that the appellant had been advised that two of the actions the respondent had been retained to litigate were ill-conceived and accepted this account of what had transpired while failing to address obvious inconsistencies in the evidence.

The purpose of a motion to strike paragraphs in a statement of claim is to weed out claims that have no possibility of success. When so doing, the court must consider whether to grant leave to amend. A summary judgment motion, by contrast, can only be brought after pleadings are exchanged. The...