Court of Appeal for Ontario

Date: 2019-12-24

Docket: C66964

Judges: Roberts, Zarnett and Jamal JJ.A.

Between

Ian Angus and Daphne Angus Plaintiffs (Appellants)

and

The Corporation of the Municipality of Port Hope Defendant (Respondent)

Counsel

M. John Ewart, for the appellants

Kristin Muszynski and Kevin Cooke, for the respondent

Heard: December 18, 2019

On appeal from: the judgment of Justice Susan Woodley of the Superior Court of Justice, dated April 25, 2019, with reasons reported at 2019 ONSC 2596.

Reasons for Decision

[1] The appellants appeal the summary judgment which dismissed the remaining claims in their action. Those claims were for damages alleged to have been caused by the respondent's enactment of a By-Law and its unsuccessful prosecution of the appellants for breach of that By-Law. For the reasons that follow we dismiss the appeal.

[2] The respondent passed By-Law No. 47/2012 on May 29, 2012. It required property owners to obtain a permit before placing or dumping fill on their property. In order to obtain a permit, various information had to be provided; the By-Law also required the payment of a fee.

[3] The appellants, shortly before the By-Law came into force, had entered into an agreement for fill to be placed in an abandoned gravel pit on property owned by the appellant Mrs. Angus. When the respondent objected to the continuing placing of fill without a permit after the By-Law came into effect, the appellants: (a) took the position that the By-Law did not apply to the property; (b) filled out an incomplete application for a permit, without submitting the required fees or filing the required documents in support of the application; and (c) for a time, continued to accept deliveries of fill on the property. Although the respondent advised of what was deficient in the application for the permit, the appellants took no further steps to fulfill the requirements.

[4] Litigation then ensued. On March 18, 2013, the respondent commenced a prosecution for breach of the By-Law. On May 30, 2013, the appellants commenced this action challenging the validity and applicability of the By-Law.

[5] On June 14, 2016, an order was made in this action declaring that the By-Law did apply to the appellants' property, holding that the fees the By-Law imposed were ultra vires, and holding that the By-Law was otherwise valid and in full force and effect. No appeal was taken from that order.

[6] The prosecution for breach of the By-Law was stayed for a period of time while its validity was challenged in this action. In November 2016, the prosecution was continued. On October 16, 2017, the prosecution was permanently stayed on the basis that the appellants' right to a trial within a reasonable period of time had been breached. No appeal was taken from the permanent stay order.

[7] The appellants then amended this action to include claims for malicious prosecution and misfeasance and abuse of public office.

[8] The respondent moved for summary judgment dismissing the claims in the amended action. The appellants brought their own motion for summary judgment on their claims. Based on the late filing of evidence by the appellants the motions judge declined to deal with the appellants' motion until after she had disposed of the respondent's motion, and then only if the result was other than a dismissal of the action.

[9] The motions judge granted summary judgment dismissing those parts of the appellants' action that had not been dealt with by prior decisions. It is from this order that the appellants appeal.

[10] The appellants do not argue that this was an inappropriate case for summary judgment. Rather, they submit that the motions judge made reversible errors in dismissing their claims for: (a) malicious prosecution of charges against them under the By-Law; (b) misfeasance and abuse of public office; and (c) damages resulting from the fee provisions of the By-Law being invalid. The appellants also submit that the motions judge erred in not dealing with both summary judgment motions together with the additional evidence the appellants delivered on their motion. We do not give effect to any of these grounds of appeal.

[11] The appellants do not dispute that the motions judge correctly articulated the four-part test the appellants had to meet to maintain an action for malicious prosecution. No party disputes her finding that the first two elements of the test were met. We disagree with the appellants' contention that the motions judge erred in finding that the appellants did not meet the third part of the test, that is, that she erred in finding there to be no genuine issue requiring a trial about whether the respondent had reasonable and probable cause to initiate and continue the proceeding. There was evidence on which she could find the respondent had a subjective belief at the relevant times that fill had been deposited on the appellants' property after the By-Law came into force, and that the By-Law had been breached as the appellants had not obtained the required permit. And the evidence justified her finding that such a view was objectively reasonable at the relevant times. She correctly found this to be fatal to the appellants' cause of action for malicious prosecution. Similarly, her finding that there was no evidence that the respondent wilfully perverted or abused the process grounded her finding that the appellants' action failed the fourth element of the malicious prosecution test. Her findings are entitled to deference and are not the product of legal errors.

[12] The motions judge correctly articulated the test for misfeasance and abuse of public office, noting that it requires deliberate unlawful conduct in the exercise of public functions and awareness that the conduct is unlawful and likely to injure the plaintiff. There was no issue that the respondent had the jurisdiction to enact the By-Law and that it was a By-Law of general application to all residents of Port Hope. The motions judge noted that the By-Law was passed after months of research and consultation with various stakeholders and was similar to those in effect in neighbouring municipalities. She found that there was no evidence that the By-Law was enacted for other than a proper public purpose, let alone in bad faith, and no evidence to support a finding that the respondent acted in bad faith by including a fee provision in the By-Law. She correctly noted that the fact that the fee provision was later declared ultra vires could not be equated with a bad faith enactment. We see no error in these findings that could justify appellate intervention.

[13] The motions judge's determination that neither of the causes of action advanced by the appellants raised a genuine issue requiring a trial was sufficient to dispose of the claims for damages that were advanced—they were dependant on a valid cause of action. We would add that for the additional reason given by the motions judge, we see no merit in the appellants' argument that there is a claim for damages arising from the fee provisions initially made part of the By-Law having been later found to be ultra vires.

[14] The motions judge found that the appellants had not provided a complete application for a permit, leaving aside that they did not submit the requested fees that were later found to be ultra vires. Assuming without deciding that the appellants could complain if they were denied a permit because they did not pay fees which were later declared invalid, we see no error in the motions judge's determination that they could not complain when their application was deficient for reasons other than the non-payment of fees.

[15] Finally, the motions judge's decision to proceed with the respondent's motion for summary judgment and not to allow late evidence to be filed on it was within her discretion, as was her decision to defer the appellants' motion and to deal with it only if the respondent's motion failed. We are not satisfied that she made any reversible error in so exercising her discretion. She had a long familiarity with the matter and was well placed to efficiently and fairly manage the motions. Nor in argument were we pointed to anything in the late evidence of the appellants that, if considered by the motions judge, could reasonably have been expected to change the result.

[16] Accordingly, the appeal is dismissed. The respondent is entitled to its costs of the appeal, fixed at $15,000 inclusive of disbursements and applicable taxes.

"L.B. Roberts J.A."

"B. Zarnett J.A."

"M. Jamal J.A."