CITATION: Rizzo v. Daniel, 2025 ONSC 6286

DIVISIONAL COURT FILE NO.: DC-25-0000351-000 DATE: 20251219

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

D.L. Corbett, Faieta and Shore JJ.

BETWEEN:

MICHELANGELO RIZZO

Barry Yellin, for the Appellant

Appellant

– and –

TARA-LEE DANIEL, STEVE

Samuel Nash and Sophie Jackson, for the

DUMANSKI, MICHAEL DIBDEN,

Respondent Tara-Lee Daniel

KAREN SMITH, EDWARD HOOD, AND

CAROL HOOD

Ken Rosenberg and Dilon Gohil, for the

Respondents Steve Dumanski, Michael

Respondents

Dibden, Karen Smith, Edward Hood and Carol

Hood

HEARD at Hamilton: October 30, 2025

ENDORSEMENT

Faieta J.

Introduction

1The respondent Tara-Lee Daniel brought an application under the Partition Act, R.S.O. 1990, c. P.4 for the sale of two properties that she owns with the appellant, Michelangelo Rizzo:

(a) a cottage property located at 24 Fire Route 363A, Trent Lake, Ontario, on which Daniel and Rizzo are 50/50 owners as tenant-in-common (the “Cottage”); and

(b) a residential property located in Niagara Falls, Ontario on which Daniel is a 1% owner and Rizzo a 99% owner (the “Niagara Falls Property”).

2The parties reached a settlement for the listing and sale of the Niagara Falls Property.

3Rizzo’s initial position was that the Cottage should not be sold. However, Rizzo eventually agreed that the sale of the Cottage should proceed on the terms proposed by Daniel, except for paragraph 1(e) of the proposed order, which provides:

The Parties shall include a term of the agreement of purchase and sale of [the Cottage] that the subsequent purchaser sign the planning application, attached here to as Schedule “A”, and cooperate expeditiously and in good faith at all times to take all other steps necessary to grant a deeded and surveyed permanent right-of-way for persons, animals and vehicles over the areas included in the planning application.

4For reasons dated February 19, 2025, Sheard J. granted the order sought by Daniel, subject to minor amendments (the “Order”).

5Rizzo, in his Notice of Appeal and Supplementary Notice of Appeal, asks that:

(1) the Order be set aside and:

(a) that the underlying Application be dismissed; or

(b) In the alternative, the Order be varied to not include any term that requires a third-party purchaser of the subject property to be bound by [it] until a determination of the subject matter has been made on its merits in [the Toronto Action]; or

(2) Paragraph 1(e) of the Order be set aside.

6In addition, Rizzo submits that Justice Sheard erred in awarding costs of $59,290.02 to Daniel on a full indemnity basis.

7For reasons described below, this appeal is dismissed other than the appeal in respect of costs.

Background

Background

8Rizzo and Daniel are former common law spouses whose four-year relationship ended in September 2022. They purchased the Cottage in 2021 for about $3.1 million from Nevil Knupp using Rizzo’s funds and a mortgage that Daniel co-signed, as Rizzo was unable to obtain the mortgage on his own.

9Schedule C of their Agreement of Purchase and Sale, dated May 4, 2021 (“APS”), states:

The parties acknowledge that there may be a driveway through the northeast corner of the Knupp property, generally shown on Schedule B attached, which driveway provides access for three properties to the southeast of the Knupp property.

It is unknown currently whether in fact the driveway crosses the Knupp property.

The parties agree that if in fact there is a driveway as described above over the Knupp property that if any of the person using the driveway pay for a survey and Planning Act process as applicable for approval to grant a permanent right-of-way, pay the costs and complete the process all at no expense to the owner of the Knupp property on or before November 17, 2024 then those buyers, for themselves and successors in title will cooperate expeditiously and bona fide at all times to grant a deeded and surveyed right-of-way to any or all of the three owners who wish to obtain and pay for the costs of same. In the meantime, the owner of the Knupp property will not block the access to the driveway.

This Agreement is made in contemplation of obtaining Planning Act Consent and approval as may be required.

This agreement shall enure to the benefit of and be binding upon the heirs, executors and assigns of all parties herein. [Emphasis added.]

10After their separation, Daniel no longer used the Cottage and asked Rizzo to remove her name from title to the Niagara Falls Property and the Cottage, as well as from the mortgages. Rizzo failed or refused to do so, even though, notwithstanding her ownership interests in both properties, Daniel does not seek to share in the net proceeds of sale of the properties.

11On March 7, 2023, the other respondents, Steve Dumanski, Michael Dibden, Karen Smith, Edward Hood and Carol Hood (the “Plaintiff Neighbours”), being neighbouring cottage owners, commenced an action against Rizzo and Daniel (the “Toronto Action”). They allege that they access their cottage properties by way of Fire Route 363A, and that about 50-feet of Fire Route 363A crosses the Cottage property. In the Toronto Action, the Plaintiff Neighbours claim, amongst other things, an order for specific performance of Schedule C of the APS, and alternatively, a declaration that they enjoy an easement by express grant, a prescriptive easement, an equitable easement and/or possessory title in respect of the portion of Fire Route 363A that crosses the cottage property.

12Daniel and Rizzo delivered separate Statements of Defence in the Toronto Action.

13In his Statement of Defence, Rizzo alleges that Schedule C of the APS only provides for a right of way, rather than an easement, that whether a driveway crosses the cottage property has not been determined, and that the plaintiffs had not obtained the necessary survey and engaged in the applicable Planning Act process.

14On July 20, 2023, Daniel commenced this application for an order for the sale of the Cottage and the Niagara Falls Property (the “Partition Application”).

15On January 24, 2024, Daniel entered into a settlement with the Plaintiff Neighbours in the Toronto Action. The settlement provides, amongst other things that:

(a) Daniel agrees, in the Partition Application, to:

a. consent to the Plaintiff Neighbours intervening as a party in the proceedings;

b. seek, as a term of any court-ordered sale, that the subsequent purchaser also sign the planning application and cooperate expeditiously and in good faith at all times to take all other steps necessary to grant a deeded and surveyed permanent right-of-way; and,

c. require, as a term of any voluntary sale, that the subsequent purchase also sign the planning application and cooperate expeditiously and in good faith at all times to take all other steps necessary to grant a deeded and surveyed permanent right-of-way.

(b) The Plaintiffs agree to release and forever discharge Daniel from any and all claims arising from the Toronto Action and to not seek any legal costs from Daniel.

16On April 18, 2024, the Plaintiff Neighbours were added as parties to the Partition Application for the limited purpose of allowing them to make submissions that, should an order be made, the court should direct that the sale of the Cottage provide for the right-of-way on the terms described in the above settlement.

Issues

Issues

17This appeal raises the following issues:

(1) What is the standard of review?

(2) Did the Applications Judge err in ordering the sale of the Cottage subject to paragraph 1(e)?

(3) Did the Application Judge err in awarding costs on a full indemnity basis?

Jurisdiction and Standard of Review

Jurisdiction and Standard of Review

18This court has jurisdiction over this appeal pursuant to s. 7 of the Partition Act, R.S.O. 1990, c. P.4 The appellate standard of review applies: correctness on questions of law, and palpable and overriding error on questions of fact. Questions of mixed fact and law are reviewable on the standard of palpable and overriding error except for extricable questions of law, which are reviewed on a correctness standard: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.

19As noted by Backhouse J. in Caine v. Ontario College of Teachers, 2022 ONSC 2592:

25An error is palpable if it is obvious and plainly seen, and if all the evidence need not be reconsidered to identify it. It is not a needle in a haystack but a beam in the eye. An overriding error is one that is likely to have affected the result and goes to the very core of the outcome of the case – “[w]hen arguing palpable and overriding error, it is not enough to pull at leaves and branches and leave the tree standing. The entire tree must fall.”

26Palpable and overriding error is a highly deferential standard that recognizes the expertise and competence of the trier. It is not the role of appellate courts to second-guess the weight assigned to items of evidence by the trier. In particular, the fact that an alternative factual finding could be reached based on a different ascription of weight by an appellate court does not mean that a palpable and overriding error has been made. [Footnotes omitted.]

Did the Application Judge err in ordering that the sale of the Cottage be subject to paragraph 1(e)?

Did the Application Judge err in ordering that the sale of the Cottage be subject to paragraph 1(e)?

20Under section 2 of the Partition Act, a joint tenant or tenant in common has the prima facie right to compel the partition or sale of their land. A request for partition or sale will only be refused where there is malicious, vexatious, or oppressive conduct. A narrow interpretation of the discretion to order partition or sale makes commercial sense by enhancing predictability: Greenbanktree Power Corp. v. Coinamatic Canada Inc., 75 O.R. (3d) 478 (C.A.), at para. 1. Similarly, the terms associated with an order for the sale of land under the Partition Act should be made with a view to obtaining the best price: Buttar v. Buttar, 2013 ONCA 517, 116 O.R. (3d) 481, at para. 64; Ilchuk v. Ilchuk, 2024 ONSC 1276, at para. 67.

21As noted, midway through the hearing, Rizzo withdrew his opposition to the sale of the Cottage. He agreed that the sale of the Cottage could proceed on the terms proposed by Daniel except for paragraph 1(e). This position was, however, a bit of sleight of hand, since Rizzo also argued that sale of the Cottage ought to be deferred until after the conclusion of the Toronto litigation (in which the neighbours’ claims should be decided).

22Rizzo submits that the inclusion of paragraph 1(e) in the Sale Order would cause him financial loss and would amount to awarding specific performance as requested in the Toronto Action, without a full evidentiary record. The Application Judge considered and dismissed these concerns. At paragraphs 33-41 of the decision below:

33 As Rizzo has conceded that Trent Lakes can and should now be sold, it is no longer open to him to argue that its sale should be deferred until the Toronto Action has been resolved. While I have not made extensive reference to the evidence supporting the existence of the [right of way], there is, in fact, a significant record before this court that would support the position taken by the Neighbours that the [right of way] has been in place for decades.

34 Included in that evidence is Schedule "C" which, in itself, is strong evidence of the existence of the [right of way]. It is fair to assume, which I do, that if there were any diminution in the market value of Trent Lakes by reason of the potential registration of the [right of way], that had already been reflected in the price paid by Daniel and Rizzo when they bought.

35 Para. 1.e. is intended to reflect the terms that Daniel and Rizzo accepted when they bought Trent Lakes. Accordingly, I do not accept Rizzo's submissions that to impose similar terms on a new buyer will be prejudicial to him or cause an unfair reduction in its market value.

36 Indeed, I come to an opposite conclusion. Omitting para. 1.e. from the sale order could, and very likely would, create unresolved uncertainty and, possibly, give rise to the registration against the title of Trent Lakes, such as of a Certificate of Pending Litigation, putting potential buyers on notice of the Neighbours claims to the [right of way], which would interfere with or even prevent its sale and/or reduce the sale price achievable.

37 Rizzo has also submitted that to grant the relief sought by Daniel would, in effect, be to grant judgment to the Neighbours on the claims raised in the Toronto Action.

38 I do not accept those submissions. The claims made in the Toronto Action against Rizzo include declaratory relief and damages, neither of which is requested on this application.

39 The Neighbours submit that Rizzo's own planning expert has provided an opinion that the [right of way] lands meet the definition of an "access road" under the Ontario Road Access Act, and as such, any subsequent purchaser would already be subject to restrictions concerning the use of the lands that the Neighbours assert are subject to the [right of way]: Neighbour's Factum, at para. 50.

40 Rizzo has put forth no evidence to support his assertion that the inclusion of para. 1.e. in the Sale Order would negatively affect the ability to sell Trent Lakes or the potential sale price achievable. By contrast, based on the record before me, there is evidence on which to conclude that not including para. 1.e. in the sale order could negatively affect the ability to sell and/or the sale price achieved.

41 In my view, including para. 1.e. in the Sale Order will achieve a proper and fair outcome to Daniel and Rizzo: 1) it will alleviate any uncertainty to any potential purchaser(s) that might interfere with the sale of Trent Lakes and/or with achieving the highest possible sale price; 2) it recognizes Daniel's inherent right to seek the sale on terms that are fair to her, as a 50% owner; and, 3) it will not prejudice Rizzo's future use or enjoyment of Trent Lakes, which he has agreed will be sold.

23I agree with the Application Judge’s assessment of the evidence and conclusions. I find that she did not err in law or make a palpable and overriding error of fact in imposing paragraph 1(e) as a term of the Sale Order. Under the Partition Act, the Application Judge was empowered to settle all issues required to effect sale of the property.

24Daniel is just seeking to be removed from title to the property and to be removed from the mortgage. She gave Rizzo plenty of time to arrange to do this without selling the property, and he was unable or unwilling to do so. There is no factual foundation for Rizzo’s claim that he would obtain a better price for the property while his neighbours’ claims are in litigation than he would obtain from selling the property with para. 1(e) included in the sale terms. Rizzo’s arguments that sale should await litigation of the neighbours’ claims is unfair to Ms Daniel: that would require that Ms Daniel’s credit continue to be compromised by her obligations under the mortgage and require her to continue as a party to the litigation of the neighbours’ claims.

Should the Sale Order be Stayed Pending the Determination of the Toronto Action?

Should the Sale Order be Stayed Pending the Determination of the Toronto Action?

25In his Factum, Rizzo asks, in addition to paragraph 1(e) of the Sale Order being set aside, that the balance of the Sale Order be stayed pending a resolution of the merits of the Toronto Action.

26For the reasons given by the Application Judge, at para. 33 of her decision, I find that there is no merit to Rizzo’s request for a stay.

Did the Application Judge err in relying on his undertaking in ordering that the Rizzo pay costs on a full indemnity basis?

Did the Application Judge err in relying on his undertaking in ordering that the Rizzo pay costs on a full indemnity basis?

27The Application Judge relied on Rizzo’s undertaking to pay for Daniel’s reasonable legal fees and to indemnify her relative to the Toronto proceeding in her finding that costs of $59,290.02, inclusive of disbursements and HST, on a full indemnity basis should be paid by Rizzo to Daniel: see Daniel v. Rizzo, 2025 ONSC 2400, at paras. 45 and 53. In relying on this undertaking the Application Judge made a palpable and overriding error, as the undertaking does not apply to the Partition Application commenced in Hamilton. Accordingly, the order for full indemnity costs cannot stand.

28However, an award of substantial indemnity costs is justified based on Rizzo’s actions as described by the Application Judge, as well as Rizzo’s late acceptance of an offer to settle related to the Niagara Falls Property and his failure to accept Daniel’s offer related to the Cottage which was essentially the same as ordered by the court. I find that it is fair and reasonable for Rizzo to pay Daniel costs of $50,000, inclusive.

Conclusion

Conclusion

29Costs below are varied, as directed above, and in all other respects the appeal is dismissed, with costs of the appeal payable by Rizzo of $10,000 inclusive to Daniel and $10,000 inclusive to the Plaintiff Neighbours.

Faieta J.

I agree: ________________________________

D.L Corbett J.

I agree: ___________________________

Shore J.