Court of Appeal for Ontario

Date: 2025-06-11
Docket: COA-23-CV-1289

Before: Janet Simmons, D.A. Wilson, and L. Madsen

Between

Gino Chitaroni, as the Estate Trustee for the Estate of Albert Chitaroni, Carol Chitaroni, Gino Chitaroni, Nina Chamaillard, and Mario Chitaroni and Portage Bay Developments Inc.
Plaintiffs (Appellants)

and

The Corporation of the Township of Coleman and Paul Chitaroni
Defendants (Respondents)

Appearances:
Mark Vernon and Jonathan Friedman, for the appellants
David Boghosian, George Pakozdi and Stuart Gordon, for the respondent the Corporation of the Township of Coleman
No one appearing for the respondent Paul Chitaroni

Heard: 2025-03-27

*On appeal from the order of Justice M. Gregory Ellies of the Superior Court of Justice, dated October 25, 2023 and April 17, 2024, with reasons reported at 2022 ONSC 137, 2023 ONSC 2432, 2023 ONSC 5978, and 2024 ONSC 2239.

Reasons for Decision

A. Overview

[1] This is an appeal of three decisions arising from a single summary judgment motion. The underlying issues relate to a claim by the appellants for a declaration that a disputed portion of a specific road (“Road A”) (the “disputed portion of Road A”) [1] connecting to a developed subdivision is either a public road, a common road, or an access road. Such declaration was intended to enable long-pending approval of a plan of subdivision. The appellants also claimed damages against the respondent, the Township of Coleman (the “Township”), for alleged public misfeasance/malfeasance in not taking certain steps to assume the disputed portion of Road A earlier.

[2] For the reasons that follow, the appeal is dismissed.

B. Background

[3] The Township brought a motion for summary judgment which the motion judge heard in three parts, with each part resulting in a final determination. In Part 1, dated January 7, 2022 (2022 ONSC 137), the motion judge determined that summary judgment was the appropriate process, addressed the use of partial summary judgment and dismissed the appellants’ claim for a declaration that the disputed portion of Road A is a public road. Further submissions were directed to be filed with respect to the issue of whether the damages claim required a trial.

In Part 2, dated April 20, 2023 (2023 ONSC 2432), the motion judge dismissed the appellants’ claim that the disputed portion of Road A was a common road, while permitting the access road and misfeasance claims to proceed to trial. He also sought particulars of certain allegations made by the appellants to support the claim for damages.

[4] In Part 3, dated October 25, 2023 (2023 ONSC 5978), the motion judge made rulings with respect to specific allegations related to the access road issue and the misfeasance claim, both of which had already been ordered to proceed to trial. Some of the rulings specified that the appellants were precluded from advancing aspects of their misfeasance claim at trial. On April 17, 2024, costs were ordered in the amount of $33,000 payable to the Township (2024 ONSC 2239).

[5] Notwithstanding the determinations made in each Part, the appeal was not commenced until after the Part 3 decision and no order was taken out until after the costs decision. The order, dated October 25, 2023 and April 17, 2024, addresses all the decisions.

[6] Prior to the appeal hearing, the panel raised an issue concerning the timeliness of the appeal of Parts 1 and 2 of the motion judge’s decision. The parties apparently agreed that any appeal should await the motion judge’s Part 3 decision. However, even assuming that r. 3.02(4) [2] of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, would have permitted them to file a written consent to delay the appeal period, the parties did not comply with that provision. In our view, the parties’ decision to delay appeals of patently final orders led to inefficiency and unnecessary delay. Had they complied with r. 3.02(4), an appeal management meeting could have been convened to determine the most appropriate method of proceeding. [3] However, because we have decided that the appeal should be dismissed in any event, we conclude that it is more appropriate to decide it on the merits.

C. Issues on Appeal

[7] The appellants argue that the motion judge erred in determining that this matter was appropriate for partial summary judgment, and in concluding that the disputed portion of Road A is neither a public road nor common road. The appellants ask this court to set aside the motion judge’s order and to remit all issues in the proceeding to trial. The appellants further argue that the motion judge unreasonably exercised his discretion in relation to costs and seek leave to appeal the costs order.

[8] There are two motions seeking the admission of fresh evidence on appeal. The Township brings a motion seeking the admission of what it says is evidence that Road A is now a public road, thereby rendering the appeal moot. The appellants do not oppose the admission of that evidence so long as their own affidavit materials are also admitted. The appellants argue that the appeal has not been rendered moot because, they say, the status of Road A before becoming a public road, remains intertwined with the claims proceeding to trial.

[9] For reasons we will explain, the Township’s fresh evidence motion is dismissed. As a result, and because we are dismissing the appellants’ appeal on the merits, it is unnecessary that we address the appellants' fresh evidence motion.

D. Analysis

(1) The Township’s Fresh Evidence Motion

[10] In its fresh evidence notice of motion, the Township asserted:

The claim for a declaration that Road A is a “public road” is now moot, based on the evidence set out in [a supporting affidavit] and the Exhibits thereto, namely that, following the release of [the motion judge’s] decision, Road A was conveyed to the Township and dedicated as a public road, and the Appellants’ subdivision was approved and registered on title.

[11] Although the affidavit evidence proffered by the Township demonstrated that following the release of the motion judge’s decision the disputed portion of Road A was conveyed to the Township and the appellants’ subdivision was finalized, it did not demonstrate that the disputed portion of Road A had been assumed and dedicated as a public road.

[12] By way of an unsolicited letter sent without the appellants’ consent, the Township sought to file additional evidence after the hearing of this appeal to demonstrate that the Township had passed a bylaw to assume the disputed portion of Road A as a public road (the “supplementary evidence”). In addition to seeking permission to file the supplementary evidence, the unsolicited letter described it in detail.

[13] We denied permission to file the supplementary evidence. The unsolicited letter violated r. 1.09 [4]. Moreover, the supplementary evidence was apparently available in September 2023, prior to the completion of Part 3 of the summary judgment motion and therefore could have been filed in the court below. In any event, we concluded that it was not open to the Township to attempt to supplement its fresh evidence motion after the appeal hearing was completed with evidence that had not been provided to the appellants prior to the appeal hearing.

[14] As the Township failed to file evidence that the disputed portion of Road A had been assumed and dedicated as a public road, the Township failed to demonstrate that the appeal is moot. The Township’s fresh evidence motion is therefore dismissed.

(2) The Merits of the Appeal

i. The motion judge did not err in proceeding by partial summary judgment

[15] The appellants argue that this case was not appropriate for partial summary judgment on the basis that the record was insufficient; the issues determined were intertwined with those ordered to proceed to trial such that they could not properly be bifurcated; there was a risk of duplicative proceedings; and proceeding in this matter resulted in delay and increased costs. They further argue that there was a risk of inconsistent findings, which they say came to pass.

[16] While this court has articulated several concerns with partial summary judgment (Butera v. Chown, Cairns LLP, 2017 ONCA 783, paras. 34-35; Malik v. Attia, 2020 ONCA 787, para. 62), it is not precluded. There are clearly cases where partial summary judgment will meet the purposes set out in Hryniak v. Mauldin, 2014 SCC 7, para. 60—namely, access to justice, proportionality, efficiency and cost-effectiveness—eliminating the need for or shortening the trial. For example, in VP Auto Sales & Service Ltd. v. Ahmed2 Inc., 2024 ONCA 507, para. 25, leave to appeal refused, [2024] S.C.C.A. No. 376, this court found no error in the motion judge’s decision to grant partial summary judgment, where the adjudicator considered the principles of trial efficiency and proportionality.

[17] It is apparent that the motion judge had these principles in mind in determining whether to grant summary judgment. In Part 1, for example, he emphasized that the purposes of r. 20 include providing a cheaper, faster alternative to a trial, and the appropriateness of summary judgment for discrete issues. Further, in Part 2, the motion judge reiterated the importance of proceeding efficiently, avoiding another motion, thereby promoting the timely resolution of the dispute.

[18] The exercise of the powers available under the summary judgment rule generally attracts deference, absent an extricable error of law: Hryniak, at para. 81. There is no such error in this case. The record before the motion judge was extensive. He had the benefit of submissions from both parties on this issue and carefully considered whether this case was appropriate for summary judgment or partial summary judgment. He found that partial summary judgment would dispose of discrete issues in the action, including one of “immense importance,” in the words of the appellants, which required timely resolution. Unlike in Butera, the motion judge did not “[fail] to consider whether partial summary judgment was appropriate in the context of the litigation as a whole”, and his determination that the procedure was appropriate in this case is entitled to deference.

[19] We also note that, in effect, the appellants appear to urge the use of hindsight in assessing whether the summary judgment process was appropriate. The analysis of the propriety of the summary judgment process is not undertaken retrospectively, but rather, in consideration of the materials and evidence that were placed before the motion judge by counsel. The motion judge was in the best position to determine how to adjudicate the summary judgment motion, and his decision is entitled to deference.

ii. The motion judge did not err in his determination of whether the disputed portion of Road A was a public road or a common road

[20] The appellants’ alternative argument is that the motion judge erred in law in failing to find that the disputed portion of Road A is a public road, or in the alternative, a common road.

[21] The appellants argued on the motion that they were entitled to a declaration that the disputed portion of Road A was a public road based on the common law doctrine of dedication and acceptance, which applied until 2003, when the Municipal Act, 2001, S.O. 2001, c. 25 came into effect. Recognizing that the parties advanced conflicting positions concerning the required elements of the acceptance branch of the test, the motion judge found that the appellants’ claim failed however the test is formulated: the appellants could neither show acceptance by the Township or by the public; nor could they show dedication. The appellants effectively seek to relitigate this issue, which is not the function of this court.

[22] We see no basis to conclude that the motion judge erred. He correctly set out the law, considering the breadth of the authorities and the conflicting positions on the law advanced, made findings of fact fully available to him on the evidence, and reasonably applied the law to those facts. He was entitled to find, for example, that the modest courtesies extended by the Township, such as depositing sand on the road, did not amount to clear and unequivocal evidence of an intention to assume jurisdiction over the road. Similarly, it was open to him on the evidence to find that the use of the road was by owners and lessors of the lots, their visitors, and service providers, not by the “public at large.” His determination that the evidence did not show an intention to dedicate, because the owner was unaware that he owned it, reflects neither error of law nor of fact.

[23] Before the motion judge, the appellants argued, in the alternative, that if the disputed portion of Road A was not a public road, then it was a common road, meaning, “an access road on which public money has been expended for its repair or maintenance”: Road Access Act, R.S.O. 1990, c. R.34, s. 1. They submitted that the provision of sand by the Municipality at the entrance to the road, “once in a blue moon”, sufficed to render the road a common road. The motion judge fully considered and rejected the arguments advanced, concluding that this claim did not raise a genuine issue for trial.

[24] The appellants repeat the same argument on appeal, asserting that the motion judge erred in law in requiring that a minimum amount of expenditure of public money is required to meet the definition of “common road”. We find no error in his finding that, “[it] cannot be that any courtesy extended by a municipality towards the users of a road, no matter how small, will result in a finding that the road is a common road.”

(3) The Costs Order

[25] The appellants seek leave to appeal the motion judge’s costs order. The request is denied. The appellants have not met the high threshold for granting leave to appeal a costs order: Canadian Tire Corporation, Limited v. Eaton Equipment Ltd., 2024 ONCA 25, para. 13. The motion judge’s discretion with respect to costs is entitled to deference, and we see no basis to interfere with his decision.

E. Conclusion

[26] For the reasons set out above, the appeal and the Township’s fresh evidence motion are dismissed. As a result, it is unnecessary that we address the appellants’ fresh evidence motion. Leave to appeal the costs order is denied.

[27] The parties agreed on costs of $25,000 to the party wholly successful on appeal. Although successful in the result, we dismissed the Township’s fresh evidence motion attempting to demonstrate the appeal was moot. Raising that issue based on an incomplete record required the appellants to waste time responding to it and also unnecessarily consumed a portion of the time allocated to the oral hearing. Costs of the appeal are payable to the Township on a partial indemnity scale fixed in the amount of $12,500, all inclusive.

“Janet Simmons J.A.”
“D.A. Wilson J.A.”
“L. Madsen J.A.”

Endnotes

[1] For clarity, in their amended statement of claim, the appellants describe the disputed portion of Road A as Part 1 on Plan 54R-5800.

[2] Rule 3.02(4) reads as follows: “A time prescribed by these rules for serving, filing or delivering a document may be extended or abridged by filing a consent.”

[3] This case is distinguishable from Athanassiades v. Rogers Communications Canada Inc., 2024 ONCA 497 in which the crux of the appeal was from interlocutory aspects of the order.

[4] Rule 1.09 reads as follows: When a proceeding is pending before the court, no party to the proceeding and no party’s lawyer shall communicate about the proceeding with a judge or associate judge out of court, directly or indirectly, unless, (a) all the parties consent, in advance, to the out-of-court communication; or (b) the court directs otherwise.