COURT OF APPEAL FOR ONTARIO

CITATION: Sutherland v. Toronto (City), 2020 ONCA 122

DATE: 20200213

DOCKET: C65218

Feldman, Brown and Zarnett JJ.A.

BETWEEN

Ineke Sutherland

Plaintiff/Responding Party (Appellant)

and

City of Toronto, Mark Siboni and Geoffrey R. Newbury

Defendants/Moving Parties (Respondents)

Ineke Sutherland, acting in person

Christopher J. Henderson, for the respondents

Heard: January 24, 2020

On appeal from the judgment of Justice Thomas R. Lederer of the Superior Court of Justice, dated February 27, 2018, with reasons reported at 2018 ONSC 1311, 72 M.P.L.R. (5th) 311.

REASONS FOR DECISION

OVERVIEW

[1] The appellant, Ineke Sutherland, has engaged in a dispute with the respondent, the City of Toronto, over the payment of property taxes since she first fell into arrears in 1998. As disclosed in her materials, she takes the position that until the City agrees that she does not have to pay interest or penalties on her substantial property tax arrears, she does not have to pay any tax.

[2] In 2006, the appellant commenced a Small Claims Court action in which she sought an order that her tax account for 2003 had been paid in full. The respondent, Mark Siboni, acted for the City in that action. The City and Siboni will be referred to as the City Respondents. The respondent, Geoffrey Newbury, was the appellant’s solicitor of record during parts of the Small Claims Court proceeding.

[3] After the commencement of that action, the appellant continued to let her property taxes fall further into arrears.

[4] In 2009, the Small Claims Court action was struck from the trial list. In 2016, the action was dismissed for delay. In 2017, the appellant abandoned her appeal to the Divisional Court.

[5] About five weeks after abandoning her appeal, the appellant started this action (the “SCJ Action”). In it, she pleads that: (i) the City’s tax account for her property has been incorrect since 1998; (ii) in 2006, the City, through Siboni, had undertaken not to take any collection efforts until the Small Claims Court action had been settled; (iii) Newbury negligently handled her Small Claims Court action; and (iv) the City’s efforts to collect property tax arrears had caused her damage. In her statement of claim, the appellant acknowledged that as of October 2017, the City’s records showed her property tax arrears as $102,563.16.

[6] The City Respondents moved for summary judgment dismissing the SCJ Action. Although in July 2016, the City had initiated the process to sell the appellant’s property for arrears of taxes, the process was put in abeyance pending the determination of the City Respondents’ summary judgment motion.

[7] The motion judge granted summary judgment and dismissed the SCJ Action against the City Respondents.

[8] Newbury did not join the City Respondents in seeking summary judgment.

[9] In his reasons, the motion judge: provided a meticulous review of the history of the appellant’s tax arrears dating back to 1998; closely examined the elements of her claim for damages; and considered all of the arguments advanced by the appellant. The motion judge concluded that the appellant had no viable cause of action against the City Respondents and there was no genuine issue requiring a trial.

[10] He reached that conclusion for several reasons:

(i) The root of all of the claims dated back to the 2003, 2004, and 2005 tax bills, with the result that the “issues which are the provenance of this dispute happened well outside the two years that preceded the issuance of the Statement of Claim”: at para. 29. As well, “it cannot be said that the reasonable person in the position of the Plaintiff would not have discovered that, as she continued in her failure to pay any property tax over all the years involved, her potential liability was continuing to grow”: at para. 32. The issues that formed the claim for damages were known to the appellant at least by the time she commenced her Small Claims Court action in 2006: at para. 36. Her SCJ Action therefore was statute-barred;

(ii) In any event, statute provided a complete code by which the appellant could question the amount levied as property tax and the steps taken by the City to collect the debt: at para. 37;

(iii) Notwithstanding that at one point the City had stated that it would put its collection efforts on hold until the resolution of the Small Claims Court action, in 2012 the City put the appellant on notice that it would resume collection efforts. In any event, the dismissal of the Small Claims Court action meant that the City was free to collect the very significant arrears that the appellant had allowed to build up: at paras. 41-42; and

(iv) The issuance of the tax arrears certificate was not capable of amounting to a defamatory statement of the appellant: at paras. 45-47.

ANALYSIS

[11] On appeal, the appellant advances three main submissions.

[12] First, she submits that the motion judge erred in reaching his conclusions. The appellant repeats many of the fact-based submissions she made before the motion judge. We see no error in law by the motion judge, nor has the appellant persuaded us that he made any palpable and overriding error of fact. We see no basis to interfere with the motion judge’s conclusion that there was no genuine issue requiring a trial in respect of the appellant’s claims against the City Respondents.

[13] Second, the appellant submits that comments made by the motion judge during the hearing of the motion amounted to oppressive conduct that demonstrated a reasonable apprehension of bias on his part. Having reviewed the portions of the transcript of the hearing on which the appellant relies and which she included in her Appeal Book and Compendium, we see no merit in this ground of appeal. The motion judge provided the appellant with the assistance owed to a self-represented party, including explaining what the summary judgment process involved and the issues he would have to decide. At the same time, he ensured that both parties received a fair hearing by ensuring that submissions remained focused on the issues requiring his adjudication.

[14] A few times during the hearing, the motion judge expressed frustration at some of the appellant’s submissions. He also expressed frustration at the City’s delay in dealing with the tax dispute. Towards the end of the hearing, the motion judge apologized to the appellant for expressing his frustration, an apology which she accepted on the record. The appellant received a fair hearing from the motion judge.

[15] Finally, the appellant contends that the motion judge should not have granted summary judgment when her claim against Newbury remained outstanding. We disagree. The appellant asserted quite different claims against the City Respondents and her former solicitor; there is no risk of conflicting judgments.

DISPOSITION

[16] The appeal is dismissed.

[17] The appellant shall pay the City Respondents their costs of the appeal fixed in the amount of $10,000, inclusive of disbursements and applicable taxes.

“K. Feldman J.A.”

“David Brown J.A.”

“B. Zarnett J.A.”