Court of Appeal for Ontario

Citation: Pagliuca v. Paolini Supermarket Limited, 2013 ONCA 87

Date: 20130212

Docket: C55967

Before: Blair, MacFarland and Rouleau JJ.A.

Between:

Angelo Pagliuca and Diamante Pacliuca

Applicants/Appellants

and

Paolini Supermarket Limited

Respondent/Respondent

Counsel:

Patrick Di Monte, for the appellants

Patrick Summers, for the respondent

Heard: February 11, 2013

On appeal from the judgment of Justice M. Edwards of the Superior Court of Justice, dated July 31, 2012.

APPEAL BOOK ENDORSEMENT

[1] The appellants seek to set aside the order of Edwards J. refusing to allow them to withdraw the admission in the affidavits supporting the claim in this Application that the respondents have a right-of-way over the subject lands. The Application is one of three proceedings between the parties concerning the lands (the first has been settled).

[2] In this Application, McIsaac J. concluded that the respondents had wrongfully encroached on the lands by building a berm on them. While there may be another basis upon which his decision could have been supported, it is clear from the affidavits and the reasons of McIsaac J. that the Application was put to the court on the basis that the use of the admitted right-of-way was the underpinning factor. McIsaac J. ordered that the offending berm be removed and that the question of damages be remitted to trial. That issue is to be heard, together with the second action, at trial later this year.

[3] This Court upheld the decision of McIsaac J.

[4] The appellants now seek to withdraw their admission and argue that there is no existing right-of-way. They submit that they have recently discovered a break in the chain of title that gives them this argument.

[5] Edwards J. rejected the motion on the basis that, while there may be a triable issue as to the existence of the right-of-way, the prejudice to the respondents in this proceeding by permitting the change in position they now assert militated against permitting the withdrawal of the admission.

[6] We agree. The effect of permitting the amendment proposed would be to allow the appellants to have the damage issue determined on a different basis than that on which the liability issue regarding the encroachment was founded, and confirmed in this Court.

[7] The appeal is therefore dismissed.

[8] Costs to the respondent fixed at $5,108.95 inclusive of disbursements and HST.