Mark Vernon

The Court of Appeal for Ontario dismissed the appeal of three decisions arising from a single summary judgment motion regarding the status of a disputed portion of a road ("Road A") in the Township of Coleman.

The appellants sought a declaration that the road was a public, common, or access road to facilitate subdivision approval and claimed damages for alleged municipal misfeasance.

The court found no error in the motion judge’s use of partial summary judgment, nor in his findings that the road was neither a public nor common road.

The court also dismissed motions to admit fresh evidence and denied leave to appeal the costs order.

The plaintiffs sought leave to deliver and rely on an expert opinion from a land surveyor shortly before trial in a dispute over the existence and scope of an easement for access to their property.

The court reviewed the procedural history, including multiple changes of counsel and pre-trial conferences, and considered whether the plaintiffs had a reasonable explanation for the late delivery of the expert report.

The court found that the plaintiffs had not provided a reasonable explanation and that granting leave would cause undue delay and potential prejudice.

The motion was dismissed.

The appellants appealed the dismissal of their anti-SLAPP motion under s. 137.1 of the Courts of Justice Act, which sought to dismiss a counterclaim brought against them by the respondents.

The motion judge found that the appellants' expression did not relate to a matter of public interest, failing the initial threshold for an anti-SLAPP motion.

The Court of Appeal upheld this decision, concluding that the appellants' expressions were primarily concerned with private property interests (e.g., tree protection, fencing, sightlines) related to an adjacent retirement facility development, rather than broader public concerns, despite the development itself having public interest aspects.

The court affirmed the deferential standard of review for a motion judge's finding on whether an expression relates to public interest and confirmed that the motion judge did not err by considering the context of the expressions without impermissibly assessing motivations.

The defendants, Steve and Caroline DeFreitas, brought a motion seeking a stay of enforcement of a default judgment for over $4.7 million, pending the hearing of their motion to set aside the default judgment.

The plaintiffs conceded to a stay for Caroline DeFreitas.

The court applied the three-part RJR-MacDonald test for a stay, considering serious issue, irreparable harm, and balance of convenience, while also addressing the "clean hands" doctrine.

The court found a serious issue to be tried regarding the motion to set aside default judgment, particularly concerning damages and service for Caroline DeFreitas.

Irreparable harm to the defendants was conceded if their principal residence was sold.

The balance of convenience favored granting the stay, despite allegations of continued illegal dumping by Steve DeFreitas.

The stay was granted on terms, including a prohibition on further dumping, with a provision for the plaintiffs to seek to lift the stay if the terms are breached.

Costs were fixed.

This decision addresses costs arising from a multi-part summary judgment motion.

The Township, as the moving party in the original summary judgment motion, sought partial indemnity costs of $69,638.46.

The plaintiffs opposed and sought their own partial indemnity costs of $28,392.61.

The court found that the Township had misrepresented the dispositive nature of the initial summary judgment motion.

While the Township succeeded in dismissing the public road and common road claims (Parts 1 and 2), the misfeasance claim and access road claim survived (Part 3).

The court awarded the Township $33,000.00 in all-inclusive partial indemnity costs for Part 1 of the motion, finding that the public road claim was the focal point.

For Parts 2 and 3, the court ordered that each party bear their own costs, acknowledging the plaintiffs' poor pleading but also the Township's overstatement of the motion's scope.

This decision concerns the costs of an anti-SLAPP motion brought by Eleanor and Patrick Coulson to dismiss a counterclaim by Alexander Muskoka (Gravenhurst) Inc. et al.

The Coulsons' motion was dismissed as they failed to establish the public interest threshold under s. 137.1(3) of the Courts of Justice Act.

Alexander Muskoka (Gravenhurst) Inc. sought partial indemnity costs.

The court, applying the presumption against costs in s. 137.1(8), declined to award costs to the responding party.

The judge found that the Coulsons had an arguable case, did not bring the motion for improper purposes, and that the counterclaim itself bore hallmarks of a SLAPP.

Consequently, each party was ordered to bear their own costs.

The applicants brought an application seeking the removal of two locked gates installed by the respondents over a registered right of way used to access the applicants' cottage property.

The respondents had demanded proof of liability insurance and imposed conditions on the use of keys.

The court found that the installation of the locked gates constituted a substantial and practical interference with the applicants' use and enjoyment of the easement.

The court ordered the removal of the gates and awarded the applicants $10,000 in general damages for the loss of use and enjoyment of the right of way.

This is Part 3 of a summary judgment motion brought by the Township of Coleman.

The court determined which remaining allegations from the plaintiffs' claims (misfeasance in public office and access road) would proceed to trial, following previous partial summary judgments.

The court dismissed the allegation of negligent transfer of Parcel 12907 in 1975, finding it was not properly pleaded as evidence of intent for misfeasance or estoppel.

However, it allowed other allegations to proceed, including failure to follow precedents, coercion, bad faith, misleading investments, failure to identify the end of the road, and failure to create/maintain accurate records, as these were properly pleaded and had some evidentiary value.

The applicants, Eleanor and Patrick Coulson, brought a motion under s. 137.1 of the Courts of Justice Act to dismiss a counterclaim by the respondents, Alexander Muskoka (Gravenhurst) Inc. et al., arguing it was a Strategic Lawsuit Against Public Participation (SLAPP).

The counterclaim alleged breach of Minutes of Settlement by the Coulsons for opposing a retirement residence development.

The court found that while the development itself was a matter of public interest, the specific expressions made by the Coulsons, which formed the basis of the counterclaim, were primarily about their private property interests (e.g., trees, sightlines, property boundaries) and compliance with the Minutes of Settlement, rather than broader public concerns.

Therefore, the Coulsons failed to meet the threshold burden of proving that their expressions related to a matter of public interest, and the motion to dismiss the counterclaim was dismissed.

This is the second part of a summary judgment motion brought by the Township of Coleman seeking to dismiss remaining claims by the Chitaroni plaintiffs.

The court previously ruled that a disputed road ("Road A") was not a public road.

In this part, the Township sought to dismiss claims for damages based on public misfeasance/malfeasance and declarations that Road A was an access or common road.

The court dismissed the Township's motion regarding the misfeasance claim and the access road claim, allowing them to proceed to trial.

However, the claim that Road A was a common road was dismissed.

The court also provided directions for the plaintiffs to particularize certain allegations for trial.

The Corporation of the Township of Coleman moved for summary judgment to dismiss an action in which the plaintiffs sought a declaration that "Road A" is a public highway.

The plaintiffs argued the road became public through common law dedication and acceptance or by by-law.

The court granted the motion in part, dismissing the claim for a public highway declaration against both the Township and Paul Chitaroni.

The court found no evidence of proper dedication by the owner (who was unaware of ownership of the disputed portion) or sufficient public or municipal acceptance.

Other claims for damages remain to be addressed.

The third party, Huronia Landscaping, brought a motion for summary judgment to dismiss the third party claim against it by the defendant, Aerarium Development Corporation Limited, in a personal injury action.

The plaintiff's claim stemmed from a slip and fall on stairs.

The central issues were the precise date of the accident relative to the date of repairs performed by Huronia, and the quality of those repairs.

The court found that regardless of whether the accident occurred before the repairs (September 19, 2013) or after (September 27, 2013), Huronia could not be held liable.

If before, the repairs had not yet taken place.

If after, the evidence clearly demonstrated that the repairs were properly made and the stairs were in good condition post-repair.

The court also addressed the defendant's argument that a jury notice precluded summary judgment, affirming that it does not.

The motion for summary judgment was allowed, and the third party claim against Huronia was dismissed.

The appellant appealed a summary judgment decision dismissing her medical malpractice, defamation, and negligence claims against multiple defendants including paramedic services, nine physicians, a hospital, and a medical clinic.

The motion judge had granted summary judgment on all claims.

The Court of Appeal upheld the dismissals but amended the judgment regarding Royal Victoria Regional Health Centre to clarify that only claims relating to Triage Nurse J. Doe's actions on March 10 and 11, 2012 were dismissed, not all claims against the hospital.

The appellant's appeal was otherwise dismissed with costs awarded to the respondents.