Court of Appeal for Ontario

CITATION: Pirpamer v. Zanette, 2015 ONCA 723

DATE: 20151027

DOCKET: C60548

JUDGES: Blair, Hourigan, Brown JJ.A.

BETWEEN

Frank Pirpamer

Respondent/Applicant

and

Mark Zanette, Stephen Zanette and Randy Zanette, Amelia Miragliotta and Francesco Di Nardo

Appellants/Respondents

COUNSEL:

Patrick Di Monte, for the appellants

Wendy Greenspoon, for the respondent

HEARD: October 26, 2015

On appeal from the order of Justice John McIsaac of the Superior Court of Justice, dated June 2, 2015.

APPEAL BOOK ENDORSEMENT

[1] We see no error in the motion judge’s determination of this dispute.

[2] The language of the consent order granted by Justice Mulligan incorporating the terms of settlement is quite clear and unambiguous in our view: the zoning restrictions were to apply “to the future development of Block 7, the Zanette Lots (i.e. the future lots 3.4 & 5 to the north of Block 7) and all other lots/blocks, with the Plan.” “The Plan” is implicitly define as Mr. Di Nardo’s proposed plan of subdivision (Sch A). That Plan does not include what has now become the contested Lots 1 & 2 of the Zanette lands; and on the face and wording of the Consent Order, those lots are not encompassed by the language “all other lots/blocks within the Plan.” Nor are they encompassed in the defined term “Zanette Lots.”

[3] Even if we were to find some ambiguity in the language of the Consent Order, the application of the parole evidence rule would not assist the appellants. There is nothing in the correspondence leading up to the settlement and the Consent Order that would support the view that the “lots” referred to therein are anything other than the Zanette Lots as defined.

[4] Finally, we see no basis on the record, including the affidavit evidence,that would support a finding of either unilateral or mutual mistake.

[5] The appeal is therefore dismissed. In accordance with the agreement of counsel, costs are fixed in favour of the respondents in the amount of $5,500 all inclusive.