Court of Appeal for Ontario

Date: 2019-07-19 Docket: C64914

Panel: Hoy A.C.J.O., Trotter and Jamal JJ.A.

Between

Tiiu Mari-Ann Aloe and Valve Elisabeth Aloe-Gunnell Plaintiffs (Appellants)

and

Estate of Valdeko Aloe, Lembit Peter Aloe, Toomis Erki Aloe, Alo Lumber and Building Supplies, John Alo Developments Limited and Alo Construction Co. Defendants (Respondents)

Counsel

Howard L. Shankman, for the appellant, Valve Aloe-Gunnell

William R. Scott, for the respondents

Heard

July 15, 2019

On Appeal

On appeal from the order of Justice Michael N. Varpio of the Superior Court of Justice, dated November 6, 2017, with reasons reported at 2018 ONSC 31.

Reasons for Decision

[1] The appellant appeals the order of the motion judge, dated November 6, 2017, dismissing her motion to set aside the implementation of Minutes of Settlement regarding a property in Highland Falls, New York that were reduced to a final order, dated March 11, 2011 (the "Final Order"), and for an order finding the respondents in contempt; and granting the respondents' cross-motion for relief permitting implementation of the terms of the settlement.

[2] The Final Order provides, in relevant part, that the appellant is to acquire the western portion of the property (approximately 3.43 acres), subject to a conservation easement in favour of the purchaser of the eastern portion of the property.

[3] The appellant argues that the motion judge made four main errors.

First Ground of Appeal: Leave to Bring Motion

[4] First, she argues that the motion judge erred by dismissing her motion on the basis that leave was required for her to bring the motion and, in the circumstances, he would not grant leave. The appellant has been found in contempt of the Final Order on two occasions and she acknowledges that one term of her contempt sentence required her to seek leave prior to bringing any motion before the court. However, she argues that, in his earlier hand-written endorsement of March 10, 2017, the motion judge had granted her leave. In that endorsement, the motion judge wrote that the appellant's consent to relieving counsel for the respondents of his undertaking to re-zone the property was "without prejudice to [her] ability to bring a motion arguing that the settlement ought to be varied or set aside on other grounds (leave granted)."

[5] This is not a basis for interfering with the motion judge's order. To the extent that he had previously granted leave, he did not do so with respect to the appellant's motion seeking an order finding the respondents in contempt. But more importantly, the several reasons why the motion judge denied leave were also sound reasons for dismissing the motion.

Second Ground of Appeal: Environmental Dumping Issues

[6] Second, the appellant argues that the motion judge erred in rejecting her argument that the Final Order should be set aside because the portion of the property that she is to acquire suffers from environmental clean-up issues. The motion judge did so on the basis that the appellant was aware of the dumping at the relevant times and, in any event, the dumping issue would have been discoverable with "due diligence". The appellant argues that there was no evidence before the motion judge from which he could conclude that she knew about the dumping and that it was inappropriate to require her to exercise "diligence".

[7] The motion judge's conclusion was based, in part, on the appellant's concession that dumping was taking place on the land for years. The appellant has not satisfied us that she did not make that concession. Moreover, the record indicates that the appellant has in fact exercised considerable diligence in relation to all matters affecting the property. There is no basis to interfere with the motion judge's rejection of her argument that the Final Order should be set aside because of dumping on the property.

Third Ground of Appeal: Deed Transfer and Easement

[8] Third, the appellant argues that the motion judge erred in granting the respondents' cross-motion for approval of the Deed Transfer whereby the western portion of the property will be transferred to her. In particular, she says that the Deed Transfer incorrectly creates an easement on the south boundary line of the property that was not contemplated by the Final Order.

[9] More than a year before the motion judge heard the motion, he determined that the easement on the south boundary line of the property was contemplated by the Final Order: Aloe-Gunnell v. Aloe et al., 2016 ONSC 2576. As the motion judge concluded, it was not open to the appellant to re-argue this issue.

Fourth Ground of Appeal: Conservation Easement

[10] Finally, the appellant argues that the motion judge erred in granting the respondents' cross-motion for approval of the Conservation Easement. She argues that it is substantially more restrictive than the terms of the conservation easement that she had agreed to at the time of the settlement and does not comply with the Final Order. While she concedes that she had a copy of a map describing the conservation easement restrictions and depicting an area of the property she will acquire as a "No Cut/No Development Zone (.75 acres)" at the time of the settlement, she argues that she did not appreciate that the Conservation Easement would restrict her from developing the .75 acre "no cut" area of the property she will acquire.

[11] The motion judge found that when the parties negotiated the settlement, they had before them Mr. Toomis Aloe's affidavit of March 5, 2011, which described the conservation easement with which a portion of the property to be acquired by the appellant would be burdened, and the Conservation Easement was consistent with the conservation easement described in that affidavit. There is no basis to interfere with the motion judge's finding.

Disposition

[12] Accordingly, the appeal is dismissed. The respondents are entitled to their costs of the appeal, fixed in the amount of $15,000, inclusive of HST and disbursements.

"Alexandra Hoy A.C.J.O."

"Gary T. Trotter J.A."

"M. Jamal J.A."