Chitaroni v. Coleman (Township), 2023 ONSC 2432

Court File No.: CV-18-219 Date: 2023/04/20

Ontario Superior Court of Justice

Between:

GINO CHITARONI AS THE ESTATE TRUSTEE FOR THE ESTATE OF ALBERT CHITARONI, GINO CHITARONI, NINA CHAMAILLARD, MARIO CHITARONI and PORTAGE BAY DEVELOPMENTS INC. Plaintiffs

– and –

THE CORPORATION OF THE TOWNSHIP OF COLEMAN and PAUL CHITARONI Defendants

Counsel: Mark Vernon, for the Plaintiffs David G. Boghosian and Matt Brown, for the Defendant, The Corporation of the Township of Coleman

Heard: October 27, 2022, with written submissions filed January 5 and January 19, 2023

Corrected Reasons for Decision Correction is listed on page 20

M.G. Ellies R.S.J.

Overview

[1] This is the second part of a summary judgment motion brought by the defendant, The Corporation of the Township of Coleman (“the Township”), under r. 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[2] On January 7, 2022, I released reasons, reported at Chitaroni v. Coleman (Township), 2022 ONSC 137 (“Part 1”), in which I held that the Township's motion should succeed as it related to the plaintiffs’ claim for a declaration that a particular road ("Road A") was a public road. I held that it was not. However, I questioned the Township’s submission that the plaintiffs’ claim for damages for "public misfeasance and/or malfeasance" also had to be dismissed because it was entirely derivative of their claim for a declaration about the road.

[3] The Township now concedes that the plaintiffs' claim for damages is not entirely derivative of their claim for a declaration. It submits, however, that there is also no genuine issue for trial relating to the damages claim and that it, too, should be dismissed. The plaintiffs counter primarily by arguing that it is unfair to dismiss their other claims on a motion that began only with a request to dismiss their claim that Road A was a public road. Alternatively, they submit that their claim for damages due to misfeasance/malfeasance in public office raises a genuine issue requiring a trial.

[4] As I will explain, I agree with the plaintiffs that it would be unfair to dismiss their claim for damages in the context of this motion. However, that does not mean that all of their allegations should be permitted to proceed to trial. Many of the plaintiffs' allegations appear to lack sufficient merit even to be adduced as evidence, let alone stand as the basis for a claim, and others are so obviously derivative of their claim for a declaration that they clearly do not require a trial.

[5] For the following reasons, the purely derivative claims will be dismissed and the plaintiffs will be given an opportunity to demonstrate the relevance of others, failing which they will also be dismissed. The plaintiffs' claim for damages for misfeasance in public office will be permitted to proceed to trial so that the trial judge can consider why – when it has now become obvious that the plaintiffs cannot reach an agreement with the defendant, Paul Chitaroni, to transfer the disputed part of Road A – the Township has refused to follow the advice of its expert planners to use its expropriation powers to finalize the subdivision in question.

Background

[6] The background facts in the proceedings were set out in detail in my earlier reasons and I will not repeat them all here.

The Proposed Subdivision

[7] Road A gets its name from a plan of subdivision put forward by Albert Chitaroni, the father of the individual plaintiffs, Gino Chitaroni, Nina Chamaillard, and Mario Chitaroni. Albert's subdivision plan was conditionally approved by the Ministry of Municipal Affairs and Housing in 1985. As a condition of approval, the Ministry required that the roads on the plan be surveyed and then assumed by the Township. However, Albert did not have a survey undertaken until 2013 or 2014. When it was finally undertaken, the survey revealed that a portion of Road A ("the disputed portion") was not on Albert's property but was, instead, on a piece of property ("Parcel 12907") that is owned by his nephew, Paul Chitaroni.

[8] In the meanwhile, notwithstanding that the subdivision had not been finally approved, the Township permitted Albert to sever some lots and he leased other lots in the subdivision such that all of the lots in the proposed subdivision now have some form of residence on them. Those people with homes in the southern part of the proposed subdivision use Road A to access those homes.

[9] To rectify the problem revealed by the survey, Gino approached Paul and attempted to reach an agreement to allow the Township to assume the disputed portion of the road. However, they were unable to agree. When the plan involving Paul failed, the plaintiffs approached the Township and sought, first, to convince the Township that Road A was a public road. When that also failed, the plaintiffs sought to have the Township use either its powers of expropriation or the five percent Crown reserve contained in the original conveyance of Parcel 12907 to assume the disputed portion of Road A.

[10] The Township retained a consultant, J.L. Richards & Associates ("Richards"), to study the problem and prepare a report. On October 13, 2017, in a report authored by Sarrah Verrault, Richards recommended allowing the parties to come to an agreement themselves. However, she also made another recommendation, to which I will return later in these reasons.

[11] To help the plaintiffs reach an agreement with Paul, the Township participated in mediations with them, but those mediations also failed. According to Mario, Paul has refused to accept an offer to pay him at least eight times what the disputed portion of Road A is worth. Notwithstanding this impasse, the Township has refused to use either its powers of expropriation or the Crown reserve to resolve the situation.

The Plaintiffs' Claims

[12] This action was commenced in 2018. Generally speaking, the plaintiffs make four claims:

(a) that Road A is a public road; (b) that Road A is an access road; (c) that Road A is a common road; and (d) that the Township is liable in damages for "public misfeasance and/or malfeasance".

[13] The first claim was decided in Part 1, when I held that Road A is not a public road. As I will explain, the issue with respect to the second claim is whether the Township is a proper party to the claim and the issue raised by the third claim can be adjudicated in this part of the motion. The fourth claim requires an explanation and a very generous interpretation of the Amended Statement of Claim, to which I will turn now.

[14] In their argument on the motion, the plaintiffs contend that the Township is liable for failing to use either its powers of expropriation or a five percent Crown reservation contained in the original conveyance of Parcel 12907 to assume jurisdiction over Road A and allow the subdivision to be finalized. However, as I pointed out at para. 90 of my reasons in Part 1, there is barely any reference in the Amended Statement of Claim to the five percent reservation and no reference whatsoever to the powers of expropriation. This failure by the plaintiffs to clearly and properly plead their case gives rise to another issue; namely, whether a court can grant summary judgment under r. 20 on the basis that, as pleaded, the statement of claim cannot give rise to a triable issue.

[15] Interpreted generously, the plaintiffs’ claim for damages is based on as many as twelve separate allegations of impropriety, which improprieties they allege have interfered with the subdivision's approval. These include

(a) negligently transferring Parcel 12907 in 1975 to Carlo and Elio Chitaroni; (b) taking the position that Road A is not a public road; (c) falsely stating on the radio that Road A is encroaching on Paul's land; (d) failing to follow previous Township precedents relating to the acceptance of public roads; (e) failing to "obtain and consider" an "outside opinion"; (f) in the alternative, employing “incompetent outside experts” to advise the Township on the issues in dispute; (g) coercing the plaintiffs into purchasing the disputed portion of Road A; (h) being unreasonable, biased, and showing bad faith in passing Resolution 18-04-56, allegedly withdrawing support for the subdivision; (i) misleading the plaintiffs into making further financial investments by making them believe that final approval of the subdivision would be granted; (j) failing or refusing to identify where Portage Bay Road stops relative to the lodge, making it impossible to relocate the disputed part of Road A; (k) failing to create and maintain accurate records; and (l) failing to acknowledge that the disputed part of Road A is a public road, thereby preventing final approval and acting in bad faith, with malice, dishonestly, discriminatorily, unreasonably, and without procedural fairness.

[16] As I explain below, to succeed in their claim for misfeasance in public office, the plaintiffs must prove both an unlawful act and an intent to injure. It is not clear from the Amended Statement of Claim to which element of the tort the allegations set out above are directed nor whether the allegation is pleaded as a material fact, or as evidence. Regardless of the intent behind the pleading, as I will explain, some of these allegations cannot support the plaintiffs' claim for misfeasance because they have been rendered irrelevant by my decision in Part 1 and others are so obviously lacking in merit that they ought to be dismissed if the plaintiffs cannot support them with more evidence, once given a chance.

Issues

[17] I propose to address the issues raised in this motion in the following order:

(1) Is it fair to consider the plaintiffs' claims other than the request for a declaration that Road A is a public road? (2) Can summary judgment under r. 20 be granted on the basis of deficient pleadings? (3) Does the claim for damages for misfeasance/malfeasance raise a genuine issue requiring a trial? (4) Does the request for a declaration that Road A is an access or a common road require a trial involving the Township?

Analysis

Is it fair to consider the plaintiffs' claim other than the request for a declaration that Road A is a public road?

[18] On behalf of the plaintiffs, counsel submits that it would be unfair to permit the Township to obtain a dismissal of any claim, other than the claim for a declaration that Road A is a public road, because the motion was never about any other claim. Counsel for the Township counters that its notice of motion sought the dismissal of the entire action. Mr. Boghosian submits that, if the plaintiffs were in any way misled by the way in which the Township proceeded on the motion, they have had notice that the Township would be seeking a dismissal of all claims since at least the date of my reasons in Part 1 in January 2022 and notice of the case to be met since the receipt of the Township's factum regarding this part of the motion in March 2022.

[19] It is true that the notice of motion seeks "summary judgment dismissing the action". However, it is also true that the entire focus of Part 1 of the motion was on whether Road A was a public road. Indeed, the Township asserted in its original factum, at para. 56, that "[t]he sole issue on this motion is whether any portion of Road A has been assumed by the Township of Coleman as a public highway." As I stated in my reasons on Part 1, it was the Township's position that the damage claims were entirely derivative of the declaration claim. The Township did not seek dismissal of the plaintiffs’ claim for damages on any other basis.

[20] Counsel for the Township submits that the witnesses whose written evidence was filed on the motion were thoroughly cross-examined on their affidavits and that the plaintiffs cannot, therefore, be prejudiced by now considering their other claims. In support of his submission, Mr. Boghosian invites me to review the entire transcript of the cross-examination of Ms. Verrault. I am not prepared to do that.

[21] The suggestion that I read an entire transcript in support of a submission is an indication that neither side is properly prepared to argue Part 2 of this motion. However, it is not the only indication; there are others. For example, during oral argument both sides dealt the limitations issue surrounding the plaintiffs' claim that the Township negligently transferred Parcel 12907 in 1975, but neither side's factum dealt with it at all. To give another example, counsel for the Township submitted in oral argument that Paul has offered to sell the disputed portion of Road A to the plaintiffs for $45,000, but provided no reference to the evidence in support of that submission and it is also not dealt with in any factum. Finally, counsel for the Township submitted that, to be liable for the tort of misfeasance in public office on the basis of a failure to act, the plaintiffs had to prove that there was a statutory duty to do so on the part of the Township, clearly missing the Court of Appeal's recent decision in Meekis v. Ontario, 2021 ONCA 534, which I will expand upon below. These deficiencies in the materials and the arguments of counsel prevent me from fairly and justly adjudicating the plaintiffs' claim for damages in this motion.

[22] Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides a motion judge with broad powers to dispose of cases. The applicable parts of the rule read:

20.01 (3) A defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim.

20.02 (2) In response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial.

20.04 (2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or

(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.

(2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

(2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

(3) Where the court is satisfied that the only genuine issue is the amount to which the moving party is entitled, the court may order a trial of that issue or grant judgment with a reference to determine the amount.

20.05 (1) Where summary judgment is refused or is granted only in part, the court may make an order specifying what material facts are not in dispute and defining the issues to be tried, and order that the action proceed to trial expeditiously.

(2) If an action is ordered to proceed to trial under subrule (1), the court may give directions or impose such terms as are just ...

[23] Rule 20 is mandatory. Where a judge concludes that there is no genuine issue requiring a trial, he or she must make the appropriate final order. In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court explained, at para. 49:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[24] The summary judgment rule permits the motion judge to perform the functions of a trial judge by weighing evidence, evaluating credibility and drawing inferences in order to determine if there is a genuine issue requiring a trial. As the Supreme Court pointed out in Hryniak, at para. 68, the decision to use these powers is a discretionary one. The motion judge is not required to use them, but is required not to use them if the "interest of justice" dictates that they be used only at a trial.

[25] In Hryniak, the Supreme Court explained, at para. 66, the process of a summary judgment motion judge should follow under the Rules by providing the following "roadmap":

On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[26] Because of the way this motion began, with its focus on whether Road A was a public road, I do not believe that I have all of the evidence required to fairly and justly adjudicate the dispute between the parties as it relates to the damage claims. Nor, as I have pointed out, do I have the benefit of counsel's full submissions on all the issues.

[27] However, it is clear that some of the plaintiffs' claims are, indeed, foreclosed by my decision in Part 1 and others seem incapable of either raising a genuine issue for trial or constituting evidence with respect to such an issue. Before I get to those claims, however, I wish to address the deficiencies in the plaintiffs' pleading.

Can summary judgment under Rule 20 be granted on the basis of deficient pleadings?

[28] As I indicated above and in my earlier reasons, the Amended Statement of Claim makes only a brief mention of the Township's ability to use the five percent Crown reservation to solve the Road A problem and no mention whatsoever of the Township's power to expropriate. For this reason, during the argument of Part 2, I questioned whether a court hearing a motion under r. 20 could dismiss a claim on the basis that no genuine issue for trial was raised due to the deficiency of the pleadings. Such deficiencies are normally dealt with under r. 21. Counsel for the Township sought leave to file further written submissions on the issue following argument and, although it was opposed by the plaintiffs, I granted both sides such permission.

[29] Relying on the decisions in Joseph's Holding Ltd. v. Windsor (City), 2018 ONSC 663, and Haylex et al. v. Durham College, 2021 ONSC 3585, the Township submits that a judge hearing a summary judgment motion may consider the pleadings to determine if a reasonable cause of action is disclosed and whether damages have been properly pleaded. The plaintiffs counter, in part, by submitting that the allegation relating to expropriation was incorporated by reference in their Amended Statement of Claim to a resolution which was passed by the council of the Township on May 14, 2018 (Resolution 18-04-56). At first, this seems like a bit of a stretch.

[30] Resolution 18-04-56 refers only to s. 64 of the Municipal Act, 2001, S.O. 2001, c. 25. Section 64 refers only to the five percent reservation, not to expropriation. However, resolution 18-04-56 does refer to the Township's decision not to support the use of "other legislative tools (plural) to support the development of the subdivision". For this reason, I am prepared to accept that this reference includes the use of the Township's powers of expropriation and that, therefore, the use of the Township's expropriation power has been incorporated by reference into the claim.

[31] The Amended Statement of Claim also suffers from the fact that there is no clear allegation in it that either the power of expropriation or the Crown reservation ought to have been used to make Road A a public road. However, these options were explored by Richards in 2017 and Part 2 of the motion has proceeded on the basis that the plaintiffs allege that the Township ought to have used one or the other of these statutory powers.

[32] Therefore, I am prepared to proceed on the basis that the plaintiffs have pleaded that the Township is liable for misfeasance in public office for failing to use either its powers of expropriation or the five percent reservation to assume the disputed part of Road A. Doing otherwise would only create the need for another motion, this time to amend the Amended Statement of Claim, and would do nothing to further the interests of justice in an efficient, timely resolution of this dispute.

[33] Again, however, I repeat that the claim for damages will not be proceeding to trial untouched.

Does the claim for damages for misfeasance/malfeasance raise a genuine issue requiring a trial?

[34] "Misfeasance" is the improper doing of a lawful act; "malfeasance" is the doing of an unlawful act: John Burke, Osborne's Concise Law Dictionary, 6th ed. (London: Sweet & Maxwell, 1976). These two concepts have been subsumed within the modern definition of the tort of misfeasance in public office, as I will now explain.

[35] In Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, the Supreme Court of Canada was required to consider the scope of the tort of misfeasance in public office and to define its elements in the context of a motion under r. 21 of the Rules of Civil Procedure. Writing on behalf of the court, at para. 32, Iacobucci J. explained that the tort is an intentional one, characterized by two essential ingredients:

(1) deliberate unlawful conduct in the exercise of public functions; and (2) awareness that the conduct is (a) unlawful and (b) likely to injure the plaintiff(s).

[36] Justice Iacobucci explained that the tort may be committed in two ways, which he described as "Category A" and "Category B". He described each category as follows, at paras. 22 and 23:

Category A involves conduct that is specifically intended to injure a person or class of persons. Category B involves a public officer who acts with knowledge both that she or he has no power to do the act complained of and that the act is likely to injure the plaintiff.

What distinguishes one form of misfeasance in a public office from the other is the manner in which the plaintiff proves each ingredient of the tort. In Category B, the plaintiff must prove the two ingredients of the tort independently of one another. In Category A, the fact that the public officer has acted for the express purpose of harming the plaintiff is sufficient to satisfy each ingredient of the tort, owing to the fact that a public officer does not have the authority to exercise his or her powers for an improper purpose, such as deliberately harming a member of the public. In each instance, the tort involves deliberate disregard of official duty coupled with knowledge that the misconduct is likely to injure the plaintiff.

[37] The distinction between these two categories was further explained by the Ontario Court of Appeal in Foschia v. Conseil des Écoles Catholique de Langue Française du Centre-Est, 2009 ONCA 499, at para. 24:

While the constituent elements of the tort do not change depending on the [c]ategory of misfeasance alleged, the way those elements are proven does. If the plaintiff proves that the public official was acting for the improper purpose of deliberately causing harm to the plaintiff, this will be sufficient to prove both the [unlawful act] and [knowledge] elements of the tort. If, on the other hand, the plaintiff is alleging misfeasance in the form of Category B, then it is necessary to individually prove both the [unlawful act] and [knowledge] elements. In proving the [knowledge] element, it is sufficient for the plaintiff to show that the public official acted with reckless indifference to both the unlawfulness of his or her act and the likelihood that it would injure the plaintiff. [Citations omitted.]

[38] The Township submits that the tort can only be committed by omission where there is a statutory duty on the part of the public official to act. This submission is not without authority. In Ontario (Attorney General) v. Clark, 2021 SCC 18, 456 D.L.R. (4th) 361, at para. 23, the Supreme Court wrote:

The unlawful conduct anchoring a misfeasance claim typically falls into one of three categories, namely an act in excess of the public official’s powers, an exercise of a power for an improper purpose, or a breach of a statutory duty (Odhavji, at para. 24). [Citations in original.]

[39] However, the nature of the duty to act was explored subsequently by the Ontario Court of Appeal in Meekis. In Meekis, the motion judge had struck the plaintiffs' claims of misfeasance against a coroner and his superiors for failing to conduct a proper investigation and to convene an inquiry into the death of an Indigenous child on a remote First Nation reserve in Northwestern Ontario. In overturning the motion judge's ruling, the Court of Appeal in Meekis, at para. 81, quoted Epstein J.A. in Grand River Enterprises Six Nations Ltd. v. Attorney General (Canada), 2017 ONCA 526, at para. 81:

On my reading of the relevant paragraphs from Odhavji, there is no requirement for a breach of a statutory duty to make out a claim for misfeasance in public office. Conduct by a public officer may be unlawful even where there is no positive duty to act, provided that the conduct was done with the intent to harm. Similarly, a refusal to exercise a power with a specific intent to injure might satisfy the test for misfeasance in public office. Here, the respondents plead that “the Ministers’ continuous course of conduct (including their failure to act) ... was deliberate and unlawful in the exercise of their public functions: they knowingly acted for an improper purpose as described above and knowingly exceeded their authority”. Thus, I reject the Crown’s argument that the misfeasance claim should have been struck because the respondents did not plead a failure to act in the face of a clear statutory duty. [Emphasis in Meekis.]

[40] It is not correct, therefore, to suggest that the failure of a public body to act can only form the basis for a finding of misfeasance in public office in the face of a statutory duty to act. As the Court of Appeal held in Meekis, a refusal to exercise a power with specific intent to injure may be enough.

[41] In this case, the plaintiffs allege that, in failing to exercise its power of expropriation or to use the Crown reservation to assume jurisdiction over the disputed portion of Road A, the Township has improperly been influenced by the former mayor whose company employed Paul and was involved in a legal dispute with the plaintiff company, attempted to coerce the plaintiffs into buying Paul's land, and giving Paul an unfair advantage over them, among other things. In my view, given the law as set out in Meekis, these allegations raise a genuine issue that requires a trial in this case in light of the recommendations made in the Richards report, as I will now explain.

[42] In addition to recommending that the Township let the Chitaronis reach an agreement about the transfer of the disputed portion of Road A, Ms. Verrault made another recommendation. On page 1 of the Richards report, she wrote:

It is our recommendation that the private parties … come to an agreement themselves for the fair value of the lands and undertake a severance and transfer of the lands. However, the Township may elect to intervene between the subdividers, A&C Chitaroni, and the neighbouring landowners, Paul and Elio (P&E) Chitaroni, to move this matter forward in recognition of the existing homeowners' position where they have no legal access to their property.

The Township can undertake to virtually force a resolution upon the two disputing parties. While we indicate below that we do not recommend expropriation, in the absence of the parties talking to one another this may be the way forward to facilitate the completion of the subdivision. It should be noted that while this option is not without costs, it may be the only way to resolve this matter.

Should the Township proceed we recommend that such costs be passed back to A&C Chitaroni as the proponents of the subdivision and the ultimate beneficiaries of this undertaking. [Emphasis added.]

[43] On behalf of the Township, Mr. Boghosian contends that it is not open to the Township to use either expropriation or the Crown reservation to help the residents of the subdivision. That was obviously not the opinion expressed by the Township's experts nor, with respect, is it the law.

[44] In his oral argument, Mr. Boghosian submitted that the five percent reservation in the grant of Parcel 12907 may be used only by the Crown, and not by the Township. That is not correct. Section 64 of the Municipal Act, 2001, provides specifically that the grant may be used by a municipality such as the Township:

64 (1) A township in a territorial district, other than a township in The District Municipality of Muskoka, surveyed without road allowances may establish highways, where necessary, on land in which 5 per cent of the land is reserved for highways and the provisions of this Act as to compensation for land taken or injuriously affected by the exercise of the powers conferred by this section do not apply to the establishing of the highways.

(2) In this section,

“township” means a local municipality which had the status of a township on December 31, 2002.

[45] Mr. Boghosian also submits that Richards recommended against using the five percent Crown reservation because there were other options available, namely reconstructing Road A entirely on the plaintiffs' land. However, this recommendation was made by Ms. Verrault on the basis of a policy employed by the Ministry of Natural Resources ("the MNR"). According to the plaintiffs, during her cross-examination, Ms. Verrault expressed a change of heart about the use of the MNR guidelines in her report. In any event, Ms. Verrault recognized in her report that this option was impractical. On page 6, under the heading "Reconstruction", she wrote:

We recognize that the road was likely constructed in such a fashion (on neighbouring lands) so as to avoid difficult topography. We understand therefore that due to costs of surveying and reconstructing a road, that this is an unlikely option.

[46] Finally, Mr. Boghosian submits that using either the five percent reservation or the power of expropriation might breach s. 106 of the Municipal Act, 2001, which prohibits a municipality from directly or indirectly assisting a commercial enterprise by granting a "bonus" for that purpose. I cannot agree.

[47] The relevant portions of s. 106 read:

106 (1) Despite any Act, a municipality shall not assist directly or indirectly any manufacturing business or other industrial or commercial enterprise through the granting of bonuses for that purpose.

(2) Without limiting subsection (1), the municipality shall not grant assistance by,

(a) giving or lending any property of the municipality, including money; (b) guaranteeing borrowing; (c) leasing or selling any property of the municipality at below fair market value; or (d) giving a total or partial exemption from any levy, charge or fee.

[48] In support of his submission, Mr. Boghosian relies on the decision in Vincorp Financial Ltd. v. Oxford (County), 2014 ONSC 2580. However, in my view, that decision does not support his submission.

[49] In Vincorp, the municipality expropriated land that the owner had refused to sell to it and transferred that land, together with other parcels it had purchased, to a car manufacturer to build a manufacturing plant in its municipality. The owner of the land and the mortgagee sued, alleging that the expropriation and transfer violated s. 106.

[50] Relying on the Court of Appeal's decision in Friends of Lansdowne Inc. v. Ottawa (City), 2012 ONCA 273, Horkins J. held that s. 106 of the Municipal Act, 2001 can only apply to the transfer of land, and not to its expropriation. She held that Oxford County had properly exercised its powers of expropriation and that the transfer of the land to the manufacturer for the expropriation price did not grant the manufacturer an "obvious advantage".

[51] In this case, the Township would not be giving anything to the plaintiffs. It would simply be assuming jurisdiction over the disputed portion of Road A. If it did so using its powers of expropriation in accordance with Ms. Verrault's recommendation, the costs of doing so would be regulated by statute and paid for by the plaintiffs. I cannot see how this could constitute an illegal bonus, especially as it relates to the residents of the subdivision.

[52] In my view, it should be open to the trial judge to consider whether the Township's continued refusal to consider expropriation in the face of Ms. Verrault's recommendation is evidence of misfeasance in public office, in particular, an intent to injure. This is especially true in light of the uncontroverted evidence that the Township helped to create the dilemma that is now being faced by those residents living on lots that the Township consented to being severed from the rest of the subdivision property.

[53] However, as I have stated, not all of the allegations contained in the Amended Statement of Claim can be relied upon by the plaintiffs in support of their claim for damages. Many of the allegations related to the claim of misfeasance contained in the Amended Statement of Claim are either foreclosed as a result of my decision in Part 1 or are unlikely to survive following this part. I turn to those allegations now. In what follows, I have ignored the prohibition against pleading evidence set out in r. 25.06(1) and focused, instead, on the effect of the allegation on the need for or as evidence at a trial.

Negligently Transferring Parcel 12907 in 1975

[54] As I interpret the Amended Statement of Claim, the plaintiffs are not alleging that this transfer constitutes an illegal act in satisfaction of that ingredient of the tort of misfeasance in public office. Instead, I interpret this allegation to relate to the ingredient of intent. If so, then it can only be relevant if the evidence shows that the Township believed that the transfer was questionable after it was discovered that the disputed portion of Road A was on Paul's property and still did not use its statutory powers to correct the situation. If this is the purpose of this allegation, the plaintiffs will have to be able to point to evidence of the Township's knowledge and belief.

[55] If that is not the purpose of this allegation, the plaintiffs must so indicate and they will be required to call evidence at trial from the title searcher referred to in Mario's affidavit of January 29, 2021, to deal with the limitation issue, including the discoverability of the evidence. Because I view the evidence as being that of an expert, a report will have to be prepared by the title searcher. The expert will also have to complete an Acknowledgement of Expert's Duty, in Form 53. Once this has been done, the defendants will require time to respond.

Taking the Position that Road A is Not a Public Road

[56] The plaintiffs' complaint about the mayor and Council taking the position that Road A is not a public road cannot constitute an unlawful act or act as evidence in support of the claim of misfeasance. It has been deprived of any relevance by my decision in Part 1.

Falsely Stating that Road A is Encroaching on Paul's Land

[57] The same thing is true with respect to this complaint. There is no issue remaining that the disputed portion of the road is on Paul's land. Therefore, the plaintiffs will not be permitted to pursue this allegation at trial.

Failing to Follow Previous Township Precedents Relating to the Acceptance of Public Roads

[58] The plaintiffs' position here is that, prior to the amendments to the Municipal Act, 2001, which require a municipality to assume jurisdiction over a road by by-law after January 1, 2003, the Township regularly assumed jurisdiction over roads by mere resolution. In my decision in Part 1, I held that a resolution passed by the Township in 1984 did not have the effect of assuming jurisdiction over Road A. However, I did not consider any resolution or failure to pass any resolution in the context of the plaintiffs' claim of misfeasance.

[59] Like the claim of negligently transferring Parcel 12907, if the plaintiffs rely on this allegation as the unlawful act ingredient, then they will have to deal with the limitations issue.

Failing to "Obtain and Consider" an "Outside Opinion"

[60] This allegation has no relevance in light of the Richards report, relied upon by both sides in support of their positions. Clearly, regardless of the claim of incompetence (dealt with immediately below) the Richards report was an "outside opinion" and was considered by the Township.

[61] Therefore, the plaintiffs will not be permitted to pursue this allegation at trial even as evidence of intent to injure.

Employing “Incompetent Outside Experts”

[62] The plaintiffs argue that the Richards' experts were incompetent and point to a number of facts, such as the failure of Ms. Verrault to attend the subdivision or to speak to any of the residents there. However, none of the facts relied upon are sufficient to prove incompetence without the evidence of an expert to explain how the facts demonstrate professional negligence on Ms. Verrault's part. Further, the plaintiffs will also be required to establish that the Township knew or ought to have known that Ms. Verrault was incompetent to be able to rely on any such incompetence in support of their claim for misfeasance in public office.

[63] Therefore, if the plaintiffs wish to pursue this claim, they will be required to retain an expert and to comply with the provisions of r. 53 of the Rules of Civil Procedure, just as they will be required to do with respect to their claim regarding the transfer of Parcel 12907 and the limitation issue it raises.

Coercing the Plaintiffs into Purchasing the Disputed Portion of Road A

[64] As I view this allegation, it forms part of the overall claim of misfeasance and is relied upon by the plaintiffs to demonstrate an intent to injure. If that is so, the plaintiffs will be required to show how coercing them to purchase the disputed portion of Road A would "injure" them. If, instead, this allegation is relied upon as the unlawful act, the plaintiffs will be required to particularize the specific act or acts that constitute "coercion".

Unreasonableness, Bias, and Bad Faith Regarding Resolution 18-04-56

[65] In Resolution 18-04-56, the Township purported to "withdraw" its support for the subdivision. However, it defined "withdrawal of support" as meaning that the Township would close its file and would not support the approval of the subdivision by the Ministry of Municipal Affairs without the transfer of the lands to the Township for a municipal road.

[66] This allegation could relate to either the intent or the unlawful act element of the tort of misfeasance in public office, or both. In either case, however, the plaintiffs will have to demonstrate how the passing of the resolution had the potential to harm them; something that is not obvious to me at this point given that the Ministry had already approved the subdivision subject to the transfer of the roads and indicated as recently as August 23, 2018, that the approval contained no lapsing provisions.

Misleading the Plaintiffs into Further Financial Investments

[67] I am not aware of any evidence having been led in this motion relating to this claim. I assume, therefore, that it relates only to damages, and not to liability. If this is not correct, the plaintiffs must so advise.

Failing or Refusing to Identify Where Portage Bay Road Ends

[68] This claim has no merit, regardless of its purpose, based on the evidence adduced by the plaintiffs so far in this motion.

[69] The plaintiffs contend that Mario asked the Township in 2001 where Portage Bay ended and only received a reply during the course of this litigation, in 2021. However, the record reveals that Mario's request was not a request to identify where the road ended. Instead, it was a request to admit that the Township previously assumed jurisdiction over roads by resolution, and not by by-law. This is obvious from the context of Mario's evidence, found at para. 34 of his January 29, 2021, affidavit:

Based on my family’s local knowledge and research on this case, I believe it was administrative routine in the Township of Coleman to assume roads by resolution and without a by-law or survey prior to the Municipal Act amendments in 2001. We do not believe that the Township of Coleman acquired Township roads by survey and by-law prior to 2001. We have requested the Township of Coleman provide us the information as to how its current roads were recognized prior to 2001 but it has refused to do so to date. We know the road from Loon Lake to Portage Bay has not been surveyed.

[70] The plaintiffs also rely on a letter from Gino to the Township dated June 1, 2015. However, that letter was also not a request to identify where Portage Bay Road ends, but was instead a request to assume jurisdiction over the disputed portion of Road A on the basis that it should have been assumed by the Township when it assumed jurisdiction over Portage Bay Road decades ago.

[71] The plaintiffs must advise if they propose to adduce more evidence in support of this allegation, failing which they will not be permitted to pursue it at trial.

Failing to Create and Maintain Accurate Records

[72] The only evidence adduced so far in this motion relating to this claim is that of Mario, who opined in para. 86 of his January 29, 2021 affidavit that the public minutes and record keeping were "very one-sided and misleading, causing problematic discussions between lessees and [his] family". To be able to rely on this allegation in satisfaction of either the unlawful act or intent element of the tort, the plaintiffs will require more by way of evidence than this. It will be necessary to demonstrate through the records themselves that they are purposely inaccurate, one-sided, or misleading.

Failing to Acknowledge the Public Nature of the Disputed Portion of Road A

[73] This claim is foreclosed because of my decision in Part 1.

Further Submissions

[74] With respect to those allegations set out above that I have not held are foreclosed, I will require further submissions to determine if and how they will be permitted to proceed to trial.

Does the request for a declaration that Road A is an access or a common road require a trial involving the Township?

[75] The plaintiffs' remaining claims are brought under the Road Access Act, R.S.O. 1990, c. R.34. Under that Act, an "access road" is defined in s. 1 as:

a road located on land not owned by a municipality and not dedicated and accepted as, or otherwise deemed at law to be, a public highway, that serves as a motor vehicle access route to one or more parcels of land.

[76] A "common road" is defined in the same section as "an access road on which public money has been expended for its repair or maintenance". Unlike the claim for damages, I am able to fairly and justly adjudicate the common road issue in this part of the motion because it overlaps substantially, if not completely, with the public road issue I decided in Part 1 of the motion.

[77] In Part 1, I determined that there was no expenditure of public money on Road A, with the exception of sand provided for users of the road by the Township as a matter of courtesy. Any other work done on the road by the Township was charged back to the residents. The plaintiffs submit that any expenditure of money by a municipality on an access road, no matter how small or what the intent, will render the road a common road. They rely on the decision in Trumble/Coulson v. Gorval/Gionet, 2012 ONSC 3381 in support of their submission. In my view, Trumble is of no assistance to them.

[78] In Trumble, there were competing claims that were heard together regarding the legal character of a road. In an application brought under the Road Access Act, the landowners sought an order permitting them to close a portion of the road that crossed their land. In an action brought under the same act, users of the road first sought a declaration that the road was a common road, but later amended their claim to seek a declaration that the road was a public road. The court concluded the latter. Therefore, the evidence of expenditure of public money on the maintenance of the road was adduced in the context of determining whether it was a public, not a common, road.

[79] More importantly, the court in Trumble did not rule that any expenditure of public money was enough to turn a private road into a public road. The portion of the decision relied upon by the plaintiffs was not a ruling by the court, but rather a reference to the opinion of witnesses who testified to the effect that the operation of a grader over a road would constitute the expenditure of public funds: Trumble, at para. 60.

[80] In any event, even if the ruling in Trumble supports the plaintiffs, the case is distinguishable. The evidence in this case falls far short of evidence that the Township employed heavy machinery to maintain the road. The evidence of Mario himself is that the Township left sand at the intersection of Road A and Portage Bay Road for the use of residents of the subdivision "once in a blue moon". In my view, this is not sufficient to establish the expenditure of public money on the maintenance of Road A. 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 a road is a common road.

[81] For these reasons, the plaintiffs' claim that Road A is a common road cannot succeed against either the Township or Paul and does not raise a genuine issue for trial in that regard. It must be dismissed.

[82] This leaves only the access road issue.

[83] The Township submits that it is not a proper party to the plaintiffs' claims for a declaration that Road A is an access road. Ordinarily, I might agree. Proceedings under the Road Access Act are usually commenced by way of an application, and not by way of an action. Further, such applications are usually only commenced by the party on whose land the road is situated, not by the parties who use the road, and are usually commenced for the purpose of allowing the landowner to block access to the road, not for the purpose of preventing the landowner from doing so. While a party commencing an application under the Road Access Act is required by s. 2(5) thereof to give notice to the municipality, there is nothing in the Act that requires the municipality to participate in the application and nothing that would permit the court to order that the municipality be added.

[84] However, in this case, the Township is already a party to the action and the action is continuing against it with respect to the claim of misfeasance in public office. More importantly, there is a possibility that a declaration that Road A is an access road will affect any claim for damages allegedly suffered by the plaintiffs due to misfeasance in public office.

[85] In these circumstances, I will not order that the access road claim be dismissed as against the Township.

Conclusion

[86] The Township's motion to dismiss the plaintiffs' claim for damages for misfeasance in public office and the plaintiffs' claim for a declaration that Road A is a common road are both dismissed. The claims regarding the status of Road A as an access road and misfeasance in public office will proceed to trial and will involve all the parties.

[87] The plaintiffs will indicate in writing within 30 days the purpose of the following allegations and, where I have indicated that further evidence is necessary, the nature of that evidence:

(1) the negligent transfer allegation; (2) the failure to follow previous precedents allegation; (3) the coercion allegation; (4) the unreasonableness, bias, and bad faith allegation; (5) the misleading into further investment allegation; (6) the failure to identify the end of the road allegation; and (7) the failure to maintain accurate records allegation.

[88] The parties will arrange a case conference through the office of the trial coordinator to be held via Zoom no sooner than 60 days from the release of these reasons for the purpose of discussing the remaining issues.

M.G. Ellies R.S.J.

Released: April 20, 2023

Corrected Decision: The text of the original decision was corrected on April 16, 2024, and the description of the correction appears below:

• The word “declaration” in the second sentence in para. 3 was changed to “damages”.