Pirpamer v. Zanette, 2015 ONSC 3577
NEWMARKET COURT FILE NO.: CV-09-091325-00
DATE: 20150602
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: FRANK PIRPAMER, Applicant
AND:
MARK ZANETTE, STEPHEN ZANETTE AND RANDY ZANETTE, AMELIA MIRAGLIOTTA AND FRANCESCO DI NARDO, Respondents
BEFORE: THE HON. MR. JUSTICE J.R. McISAAC
COUNSEL: Patrick Di Monte, Counsel, for the Respondent, Amelia Miragliotta and Francesco Di Nardo
Wendy H. Greenspoon-Soer, Counsel, for the Respondents Mark Zanette, Stephen Zanette and Randy Zanette
HEARD: May 28, 2015
ENDORSEMENT
[1] The parties agree that this matter stands to be resolved on whether lots 1 and 2 (as depicted on the sketch found at Tab 1A of the Responding Motion Record dated December 16, 2014) are captured by paragraph 2(o) of the Consent Order of Mulligan J. dated August 3, 2010. In my view, they are not. Accordingly, this “motion” is dismissed and the temporary injunction issued by Bird J. on January 13, 2015 is vacated. The brief reasons for that disposition follow.
[2] After protracted litigation and negotiation with the assistance of counsel, the parties came to a resolution of their differences by way of the Consent Order to which I have already referred. Paragraph 2(o) thereof states:
The Vendor and Purchasers shall agree to a restriction as to the future development of Block 7, the Zanette lots and all other lots/blocks within the Plan, such that development thereon will be restricted to the City of Vaughan’s R1 single family dwelling – zoning as per the Zone Requirement Table By-law 1-88 in effect today, attached as Schedule “C”. No future change in By-Law 1-88 shall affect the definition of R1 single family dwelling-zoning. This provision shall not be registered on title to any of the properties.
[3] If this restriction did apply to lots 1 and 2, the respondents would be prohibited from seeking a minor variation to permit the development of two building lots of less than 60 foot frontage.
[4] I agree with Ms. Greenspoon-Soer that, whenever possible, effect is to be given to all terms of a contract which includes a Consent Order such as in the instant case: see BG Checo International Ltd. v. British Columbia Hydro and Power Authority [1993] 1 SCR 12 at pp. 23-4. The “Plan” is the Plan of Subdivision referred to in Schedule “A” of the Consent Order: see paragraph 2(f). “Block 7” is referenced in both Schedule “A” and “B” of the Consent Order as the sliver of access to the proposed extension of Appian Way being purchased by the respondents for $410,000 permitting them to develop lots 3, 4 and 5. The “Zanette lots” and “all other lots/blocks with the Plan” are, in my view, clearly limited to the lands described in Schedule “A”. These do not include lots 1 and 2 as described in the Sketch contained in Tab1A of the Responding Motion Record dated December 16, 2014.
[5] In the result, there is no prohibition against the respondents seeking the minor variation proposed. The issues of assessment of the damages related to the undertaking herein is referred to the Local Registrar at Newmarket. Finally, I am prepared to consider counsel’s written submissions as to the costs of this “motion”, those of the respondents Miragliotta and Di Nardo to be delivered to me in Barrie within 15 days of the release of these reasons and those of the respondents Zanette, 15 days thereafter.
McISAAC J.
Date: June 2, 2015