Court of Appeal for Ontario

Date: 2017-03-15 Docket: C62069

Judges: Epstein, Benotto and Trotter JJ.A.

Between

Maria Scaduto and Giuliano Scaduto Applicants (Appellants on Appeal)

and

Liviu Cucu Respondent (Respondent on Appeal)

Giuliano Scaduto, acting in person Liviu Cucu, acting in person

Heard and released orally: March 15, 2017

On appeal from the order of Justice Thomas R. Lederer of the Superior Court of Justice dated April 15, 2016.

Endorsement

[1] The appellants, Maria Scaduto and her son, Giuliano Scaduto, object to the operation of a restaurant at a property neighbouring theirs. This property was originally a garage with the legal address of 2 Romar Crescent. The garage was converted into a restaurant, with a "convenience address" of 349 Marlee. The respondent, Liviu Cucu, owns the neighbouring property and formerly operated the restaurant.

[2] The Scadutos took the position that the property was not zoned for commercial use and that Toronto had acted improperly in allowing a building permit for the conversion of the property. In 2013, Ms. Scaduto sued Mr. Cucu and Toronto in Small Claims Court seeking damages. Her claim was dismissed as being statute-barred. Ms. Scaduto's appeal to the Divisional Court was dismissed. Ms. Scaduto attempted to appeal to this court but filed out of time, and was unsuccessful in her attempt to obtain an extension of time. In 2015, Ms. Scaduto and her son again sued in Small Claims Court, this time only against Toronto. Their claim was dismissed. There was no appeal.

[3] In this proceeding, the appellants seek an injunction against Mr. Cucu. Toronto is not a party.

[4] Counsel for Toronto was present on the return of the application with a factum and sought to make submissions. Counsel for Toronto explained his presence by the fact that he has been advised that there would be a motion to add his client as a party. The Scadutos then changed their mind and determined not to add Toronto.

[5] Giuliano Scaduto objected to counsel for Toronto being allowed to speak. The application judge appointed counsel for Toronto as amicus curiae for the purpose of helping the court with the history and with the materials.

[6] The application judge found that Giuliano Scaduto's view that the use of the property as a restaurant was illegal, was incorrect. His error arose from confusion as to the property's proper municipal address. The legal address was 2 Romar, an address zoned to permit restaurants.

[7] The Scadutos base their appeal on their argument that the application judge erred in relying on Joseph Groia v. Law Society of Upper Canada, 2014 ONSC 6026 (Div. Ct.) in granting Toronto amicus curiae status. They submit that in Groia, the party that was allowed to be amicus curiae was neutral. Here, Toronto had been an adverse party in the two previous proceedings in Small Claims Court, and at the appeal in Divisional Court.

[8] The appellants request that the matter be remitted to the Superior Court to be reconsidered by a different judge, without Toronto as amicus.

[9] We would not give effect to this request.

[10] Pursuant to r. 13.02:

Any person, may with leave of a judge or at the invitation of the presiding judge or master, and without becoming a party to the proceeding, intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument.

[11] In Oakwell Engineering Ltd. v. EnerNorth Industries Inc., 2006 CarswellOnt 9793 (C.A.), at para. 9, McMurtry C.J.O. noted that an amicus need not be "impartial", "objective" or "disinterested" in the outcome of a case. The fact that the position of a proposed intervener is generally aligned with the position of one of the parties is not a bar to intervention if the intervener can make a useful contribution to the analysis of the issues before the court.

[12] In our view, it was proper for the application judge to allow Toronto to make submissions. Toronto was able to make a useful contribution to the resolution of the case, without causing injustice to the Scadutos. Additionally, we note that Toronto's ability to assist the court was the result of the Scadutos' having informed the City that it was to be added as a party.

[13] Moreover, it is abundantly clear that there is no merit to the underlying zoning issue in this appeal. Thus, even if the application judge erred in allowing Toronto to make submissions as amicus, this error could not have had any effect on the ultimate outcome.

[14] With respect to costs, the application judge ordered costs in favour of the successful party, Mr. Cucu. We see no reason to interfere.

[15] The appeal is therefore dismissed.

"Gloria Epstein J.A."

"M.L. Benotto J.A."

"G.T. Trotter J.A."