Court File and Parties

COURT FILE NO.: CV-13-494558 DATE: 20150911

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

VITO AUCIELLO (and NETWORK CASH MART LTD.) Plaintiff

– and –

CBS OUTDOOR CANADA, a division of CBS CANADA HOLDINGS CO., CBS CANADA HOLDINGS INC., MEDIACOM INC., VIACOM OUTDOOR CANADA INC., VIACOM OUTDOOR GROUP CANADA INC., VIACOM ENTERTAINMENT CANADA INC., VIACOM CANADIAN HOLDINGS INC., VIACOM CANADA INC., VIACOM CANADA LIMITED (and OUTFRONT MEDIA CANADA LP) Defendants

Counsel: Vito Auciello in person Mary Paterson and Raphael T. Eghan, for the Defendants

HEARD: August 10, 2015

BEFORE: G. DOW, J.

REASONS FOR DECISION

[1] The defendants seek summary judgment with regard to the plaintiff’s claim for damages arising from a breach of contract and/or negligence outlined in a Notice of Action issued December 11, 2013 (Tab 3 of Motion Record).

[2] The plaintiff is self-represented and this matter was originally scheduled to be heard on May 28, 2015. The plaintiff requested an adjournment because he had reconsidered his need to obtain counsel. I explained to the plaintiff that if the defendant was successful, his action could be dismissed with an award of legal costs made against him. After explaining the importance of being fully prepared and having all the requisite evidence served in advance and available at the hearing of the motion, I ordered the motion be adjourned, preemptory to the plaintiff, with costs assessed at $1,000 payable by the plaintiff to the defendants in any event of the cause. I also set out a schedule and manner for the parties to serve additional material and modified the title of proceeding to reflect the plaintiff was also acting on behalf of his corporation, Network Cash Mart Ltd. (given he is its sole officer, director and shareholder). Further, the current incarnation of the defendants (and with the undertaking it would be responsible to pay any judgment obtained by the plaintiff) was added, that is Outfront Media Canada LP became the defendant with the matter dismissed as against the remaining defendants.

[3] The matter was adjourned to August 10 before myself. Prior to August 10, the plaintiff served an additional document brief with 43 attachments (or exhibits if one considers the two-paragraph affidavit of a paralegal in an attempt to circumvent Mr. Auciello both giving evidence and acting as counsel contrary to the longstanding prohibition against same enunciated by the Court of Appeal in Imperial Oil Ltd. v. Grabarchuk (1974), 1974 CanLII 869 (ON CA), 3 O.R. (2d) 783.

Background

[4] The original lease of June 10, 1996, provided for the payment of rent by the defendant to the plaintiff for the use of the plaintiff’s roof on what appears to be a three-storey commercial building on Dufferin Street near Eglinton for a billboard sign. The lease predated the current parties. The plaintiff became owner of the property in May, 2008 (paragraph 14 of the affidavit of Stephen McGregor sworn September 4, 2014) while Outfront Media Canada LP has been the operating company responsible for this matter since sometime after November, 2014.

[5] The situation is complicated by water damage to the plaintiff’s premises in September, 2008 which the plaintiff alleges was caused by the defendant’s sign and results in litigation known as the “Economical action”. That litigation commences on September 21, 2010 (Exhibit T to the affidavit of Steven McGregor sworn September 4, 2014).

[6] The parties agreed to terminate the lease in November, 2009 with letters (November 4, 2009 – Exhibit J to the affidavit of Steven McGregor and November 30, 2009 – Exhibit L to the affidavit of Steven McGregor sworn September 4, 2014) from the plaintiff to the defendant confirming “the Landlord hereby accepts your notice to terminate the lease”. The parties agreed it was the defendant’s responsibility to remove the billboard sign from the plaintiff’s roof but this did not occur until November 18-22, 2013 (Exhibit BB to the affidavit of Steven McGregor sworn September 4, 2014).

[7] The defendant continued to pay rent (which the plaintiff accepted) after November, 2009 until January, 2011. The defendant converted the agreed upon amount from annual to monthly to minimize any refund required under clause 13 of the original lease. The defendant continued to tender monthly cheques after February, 2011 until December, 2013 which were not cashed by the defendant and total $8,854.30 (see letter from defence counsel June 1, 2015).

[8] The Economical action commenced in September, 2010 with regard to water damage was resolved in July, 2014 with both the full and final release and consent order making a debatable effort to restrict same to the “water damage” claims as referenced in the order and with regard to “water loss/property damage” contained in the full and final release. That is, it seems clear the claims articulated in the January 9, 20