Court of Appeal for Ontario

Date: 2018-10-17

Docket: C65022, C65023, C65024, C65206

Judges: Hoy A.C.J.O., Sharpe and Fairburn JJ.A.

Parties

First Appeal

Between

C. Valery Construction Limited Applicant (Appellant)

and

Flavio Battilana, Diana Battilana, Mark Peter Fingland, Rebecca Jane Raven and Merike Laigna Respondents (Respondents)

Second Appeal

And Between

Merike Laigna Applicant (Respondent)

and

C. Valery Construction Limited Respondent (Appellant)

Third Appeal

And Between

Mark Peter Fingland and Rebecca Jane Raven Applicants (Respondents)

and

C. Valery Construction Limited Respondent (Appellant)

Fourth Appeal

And Between

Flavio Battilana and Diana Battilana Applicants (Respondent)

and

C. Valery Construction Limited Respondent (Appellant)

Counsel

• Ronald Allan, for the appellant, C. Valery Construction Limited
• M. Scott Martin, for the respondents, Mark Peter Fingland and Rebecca Jane Raven
• Jordan Diacur, for the respondents, Flavio Battilana and Diana Battilana
• Alan V. Mills, for the respondent, Merike Laigna

Heard and released orally: October 17, 2018

On appeal from: The judgment and order of Justice Kim A. Carpenter-Gunn of the Superior Court of Justice, dated January 26, 2018.

Reasons for Decision

[1] The appellant's principal submission is that the application judge erred by failing to direct the trial of an issue or convert the application into an action.

[2] The appellant chose to proceed with an application. The respondents filed cross-applications. There were contested factual issues but those issues were obvious from the outset and at no point did the appellant object to the matter being determined on an application. In these circumstances, we cannot agree with the submission that the application judge erred by failing to direct on her own initiative the trial of an issue or convert the application to an action. See: 1213763 Ontario Inc. v. Shopsy's Hospitality Inc., 2008 ONCA 865 at para. 25.

[3] The appellant also submits that the application judge erred in finding that the respondents Fingland and Raven and the respondent Battilanas made lasting improvements sufficient to trigger their claim pursuant to the Conveyancing and Law Property Act s. 37. The appellant does not take issue with the legal test applied by the trial judge but contends that the facts of these cases do not bring them within that test. That is an issue of mixed fact and law to which a deferential standard of palpable and overriding error applies.

[4] We are not persuaded that the appellant has met that standard. The respondents did make significant improvements and it was open to the application judge to find that they satisfied the legal test that she correctly stated. Applying the appropriate standard of review, we are required to defer to that finding.

[5] The judgment in favour of the respondent Laigna, who succeeded on proprietary estoppel, is only appealed on the issue of whether the application judge erred by deciding the case by way of application. Accordingly, it is not necessary for us to deal with proprietary estoppel.

[6] The appeals are dismissed.

[7] Costs are awarded to the respondent or respondents on appeal in each proceeding, fixed in the amount of $8,000 inclusive of taxes and disbursements.

"Alexandra Hoy A.C.J.O."

"Robert J. Sharpe J.A."

"Fairburn J.A."