Court File and Parties

Court of Appeal for Ontario Date: 2022-03-21 Docket: C68623

Before: K. Feldman J.A., L.B. Roberts J.A., L. Favreau J.A.

Re: Allen Dunford, Plaintiff (Appellant) And: The Corporation of the Township of Otonabee-South Monaghan, Defendant (Respondent)

Counsel: Allen Dunford, acting in person Michael F. Sirdevan, for the respondent

Heard: March 15, 2022 by video conference

On appeal from the order of Justice Myrna L. Lack of the Ontario Superior Court of Justice, dated June 29, 2020, with reasons reported at 2020 ONSC 1750.

Reasons for Decision

[1] Mr. Dunford appeals from the dismissal of his action on the respondent Township’s motion for summary judgment.

[2] Mr. Dunford’s claims against the Township are founded on the tort of misfeasance in public office. He alleges that from 2005 onwards, the Township abused its public office by deliberately and maliciously engaging in a pattern of bad faith dealings with him that were intended to and did harm him and his construction business. He based his claims on particulars of several interactions with the Township.

[3] The motion judge found that Mr. Dunford had no cause of action against the Township arising from any of the circumstances outlined in his amended, amended statement of claim, including any cause of action for misfeasance in public office.

[4] The focus of Mr. Dunford’s oral argument was that the motion judge misunderstood the cause of action pleaded. In essence, he submits that the motion judge erred by failing to look at the overall pattern of the alleged instances of the Township’s misconduct as a continuing cause of action. Had she done so, Mr. Dunford argues, she would not have dismissed his claim.

[5] We are not persuaded that the motion judge made any reversible error.

[6] The motion judge’s reasons demonstrate that she did not misapprehend the cause of action pleaded. She reviewed the constituent elements of the tort of misfeasance in public office and Mr. Dunford’s claims in detail. Importantly, as she indicated in para. 11 of her reasons, she was alert to Mr. Dunford’s allegation that “from 2005, officials of the defendant Township working in that capacity pursued a pattern of conduct in which they exercised bad faith toward him or from which it can be inferred that they did so” (emphasis added).

[7] Mr. Dunford structured his claims around six separate instances of alleged misconduct by the Township that he argued amounted to misfeasance in public office. As a result, the motion judge was required to review the particulars and evidence concerning each instance to determine if there was a genuine issue requiring a trial or if summary judgment should be granted. However, the motion judge did not lose sight of the big picture. Mr. Dunford’s suggestion that the motion judge took a piecemeal approach is belied by her conclusion that “no cause of action against the Township for misfeasance in public office (bad faith) arises from any or all the circumstances outlined in the amended, amended statement of claim” (emphasis added).

[8] As held by the motion judge, the “standard to be met in establishing bad faith is high and necessitates evidence to demonstrate a municipality has acted in other than the public interest”. The fact that the Township has made several decisions unfavourable to Mr. Dunford does not amount to bad faith.

[9] Mr. Dunford also raised two further issues: i) the motion judge erred in granting summary judgment when there were genuine issues requiring a trial; and ii) the motion judge erred in failing to give any weight to his affidavit evidence of new particulars of the Township’s alleged misconduct. These can be dealt with summarily.

[10] First, this was an entirely appropriate case for summary judgment. It is well established that the parties were required to put their best evidentiary foot forward and that the motion judge was entitled to assume that they had placed all relevant evidence in the record. Having reviewed the pleadings and the evidence before her, the motion judge concluded that there was no basis for any claim against the Township. We see no basis on which to disturb the motion judge’s findings which were open to her on the record. Effectively, Mr. Dunford’s submissions amount to a request for this court to undertake the analysis afresh and come to a different conclusion in his favour. Absent error, which is not present here, that is not our task.

[11] Finally, we see no error in the motion judge’s decision not to consider the further particulars contained in Mr. Dunford’s responding materials. This was an exercise of her discretion that she was entitled to make in managing the proceedings before her. The new particulars related to events that purportedly occurred after the six instances of alleged misconduct and the timeframe pleaded in his amended, amended statement of claim. The motion judge was required to determine the motion based on the claims as framed in the pleadings before her.

[12] For these reasons, the appeal is dismissed.

[13] Mr. Dunford shall pay to the Township its costs of the appeal in the amount of $4,700, inclusive of disbursements and applicable taxes.

“K. Feldman J.A.” “L.B. Roberts J.A.” “L. Favreau J.A.”