Cole v. Hamilton (City)

65 O.R. (3d) 156 (Ont. C.A. Note)

[2003] O.J. No. 2857

Docket No. C38104

Ontario Court of Appeal

Catzman, Feldman and Gillese JJ.A.

July 14, 2003

*Application for leave to appeal dismissed with costs April 22, 2004 (McLachlin C.J.C., Major and Fish JJ.).

Civil procedure -- Summary judgment -- Evidentiary burden -- Plaintiffs suing to quash municipal zoning by-laws and suing municipality for tort of abuse of public office -- Plaintiffs failing to show that evidence they relied on would be admissible at trial -- No genuine issue for trial -- Plaintiffs' action dismissed.

Leonard F. Marsello, for appellants. George H. Rust-D'Eye and Barnet H. Kussner, for respondents.

NOTE: The above catchlines relate to a judgment of the Superior Court of Justice. An appeal of the judgment was dismissed by the Court of Appeal for Ontario (Catzman, Feldman and Gillese JJ.A.) on July 14, 2003. The endorsement of the court is as follows:

Endorsement

[1] BY THE COURT: -- The appellants/plaintiffs in this action appeal from the judgment of Borkovich J. which granted summary judgment to the respondents/defendants dismissing the appellants' action.

[2] The main claims in the action were for the torts of abuse of public office and conspiracy to injure. The appellants were in the business of constructing and operating student housing in and around McMaster University. The municipality passed certain [page157] by-laws in order to prohibit the construction of "monster" homes in the same areas of Hamilton. The appellants contended that the municipality's true purpose in enacting these by-laws was to prevent the construction of student housing which, they say, the municipality could not legally prohibit.

[3] Although there existed a by-law prohibiting lodging houses in the area, the appellants took the view that their student accommodation was not lodging houses within the meaning of that by-law. They did not challenge the ability of the municipality to regulate the construction and operation of lodging houses, but rather its ability to target students as tenants. For its part, the municipality agreed that one class of occupants of "monster" homes could be students and that its prohibition of the construction of "monster" homes could have the effect of limiting student housing, but that was within the legal power and authority of the municipality.

[4] The appellants allege non-compliance with the Planning Act, R.S.O. 1990, c. P.13, and Municipal Act, R.S.O. 1990, c. M.45 in the procedures used by the City to pass the relevant by-laws, thereby making them illegal and void. However, the appellants did not appeal to the Ontario Municipal Board, where the by-laws were ultimately confirmed.

[5] The hearing of the cross-motions for summary judgment took nine days. After considering all of the voluminous evidence and submissions, the motion judge concluded at paras. 21 and 22 of his reasons:

Despite the overwhelming evidence to the contrary, Mark Cole is of the opinion that the real purpose for By-laws 95-02 and 95-03 is to prohibit student housing. There is no evidence that this is so and, no submission made on evidence submitted that student housing has in any way been affected. Certainly, the by-laws prevent the plaintiffs from building "monster" homes but the plaintiffs have not demonstrated how student housing has been affected. There is nothing in the by-laws that prevents the plaintiffs from renting to students. On the evidence it is clearly demonstrated that the plaintiffs way of providing student housing by building "monster" homes is no longer available to him. But there is no evidence that the by-laws were directed solely at the plaintiffs. Likewise, others in the same line as the plaintiffs have been effected as well as all the residents in the neighbourhoods who might seek to enlarge their facilities.

After having considered the evidence submitted, the submissions of counsel and the authorities brought forth by counsel in support of their positions, I am satisfied that the plaintiffs herein have failed to demonstrate a genuine issue for trial on the basis of the tort of abuse of public office and conspiracy.

[6] Although the motion judge referred to the term "no genuine issue for trial", in the context of the plaintiffs' case, we understand him to be referring to "no case to meet".

[7] We have not been persuaded on this appeal that the motion judge made any palpable and overriding error in his assessment [page158] of the evidence. His findings are entitled to deference. We see no basis to interfere with his conclusions. We would therefore dismiss the appeal with costs on a partial- indemnity scale fixed in the amount of $20,000 inclusive of GST and disbursements.

[8] The appellants also appealed the costs order made by the motion judge wherein he ordered costs on a solicitor-and-client scale before December 31, 2001, and on a substantial-indemnity scale thereafter. The motion judge gave very brief reasons for his award. Although the costs issue was raised in the amended notice of appeal, the court had no argument on it in the factums or in oral argument from the respondents. In the circumstances, we request the appellants and respondents to provide brief (maximum five pages) written submissions on the issue within five and ten days respectively of the release of these reasons.