CITATION: Raimondi et al v. Ontario Heritage Trust et al, 2016 ONSC 3866
COURT FILE NO.: CV-15-3006-00
DATE: 20160610
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
IDALGO RAIMONDI and NANCY RAIMONDI
Applicants
– and –
ONTARIO HERITAGE TRUST and NICOLA ROSS
Respondents
Patricia Virc, for the Applicants
Sonal Gandhi and Stephanie Figliomeni, for the Respondent, Ontario Heritage Trust
Patricia D.S. Jackson and Sarah Whitmore, for the Respondent, Nicola Ross
HEARD: April 28, 2016
RULING ON MOTIONS TO STRIKE
DALEY RSJ.
[1] The applicants, on the pending application, moved to strike out paragraphs in the affidavit submitted on behalf of the respondents on several grounds, including that the impunity paragraphs were irrelevant, prejudicial, contained hearsay evidence, and the evidence contained in the paragraphs was inadmissible on the application under Rule 39.01(5).
[2] In their Notice of Application, the applicants seek a variety of relief including declarations that the Right of Way (hereinafter referred to as “ROW”) in question is for their exclusive use and that the right of the respondent Ontario Heritage Trust (hereinafter referred to “OHT”), to enter upon the ROW is limited to the protection and maintenance of OHT lands. The applicants further seek injunctive relief including an order restraining OHT from erecting signage or publishing statements that the ROW may be used by the public. In addition, the applicants seek a permanent injunction against the respondent Ross, enjoining her from publishing anything that states that the ROW is part of the public trail system.
[3] Additionally, the applicants seek a trial of an issue with respect to their claims against Ross for damages with respect to intentional infliction of emotional distress, interference with the applicants’ ROW, nuisance, invasion of privacy, harassment and defamation.
[4] The applicants have filed affidavit evidence from the applicant, Nancy Raimondi.
[5] The Notice of Application is a hybrid document instituting the present proceeding in that it seeks relief within the terms of Rule 14.05(3), for example the determination of the parties’ rights in respect of the ROW, however, as well, the applicants further seek damages under several causes of action which are not fully articulated within the pleading.
[6] The applicants have initiated a proceeding with a wide spectrum of claims for relief supported by similarly broad allegations in the affidavit material filed on their behalf. Much of the relief sought by the applicants is far beyond the scope of an application brought pursuant to Rule 14.05(3).
[7] In her affidavits, Nancy Raimondi raises numerous issues including: (1) the applicants’ position with respect to the rights under the ROW; (2) allegations that the respondent Ross, has defamed the applicants; (3) allegations that the respondent Ross, has defamed the applicants in statements made at the Caledon Town Council; (4) particulars with respect to interaction between Ross and one of the applicants resulting in a criminal charge against Ms. Ross; (5) allegations with respect to the nature of the public use of the ROW and alleged obstructions and conflict involving other residents residing nearby to the applicants’ property; (6) particulars with respect to the applicants’ ownership of a guard dog and its involvement in a dogfight and a subsequent lawsuit; (7) particulars as to an encounter between the applicants and a jogger on the ROW; (8) allegations with respect to the gate and signage at the ROW; and, (9) particulars with respect to OHT’s decision to build an alternate path to the Bruce Trail.
[8] Dealing firstly with respect to the applicants’ motion to strike paragraphs from the affidavit of the respondent Ross, the moving applicants sought to strike out several paragraphs as well as exhibits appended to the respondent’s affidavit sworn October 14, 2015.
[9] Upon the return of the motion on April 28, 2016, the applicants withdrew certain aspects of the motion relating to the Ross affidavit in view of the fact that in several instances, further affidavit material has been delivered on behalf of that respondent which eliminates the applicants’ assertion that the evidence contained in the Ross affidavit is hearsay and as such should be excluded.
[10] Specifically, the applicants withdrew the motion with respect to the Ross affidavit in respect of the following paragraphs in the Ross affidavit: paragraphs 43-48 inclusive, 50, 52-56 inclusive, and 58 and 60. The applicants further withdrew their application with respect to certain exhibits appended to the Ross affidavit namely exhibits: B, E, L, M, N, O, P, Q, LL, FF. The last two referenced exhibits are letters from legal counsel which counsel for the respondent Ross agreed were not being relied upon for the truth of their contents and as such counsel for the applicants withdrew the motion in respect of those two exhibits appended to the Ross affidavit.
[11] With respect to paragraphs 18 and 19 of the Ross affidavit, I have determined that those paragraphs shall not be struck as the evidence outlined directly responds to the allegations contained in both the Notice of Application and the supporting affidavit of Raimondi. The applicants have specifically put in issue the facts that are referred to within those paragraphs and as such the evidence offered is relevant and has probative value.
[12] While some of the evidence in these paragraphs may on its face be hearsay evidence, I have concluded that the state of mind of the respondent Ross, is a relevant consideration on the application, given the nature of the claims asserted against her, including defamation, and as such this type of evidence is admissible as part of the narrative surrounding the dispute between these parties and as well with respect to the respondent Ross’ state of mind at the relevant times, including her understanding as to the rights of use of the ROW, prior to her publishing her book.
[13] With respect to paragraph 31 of the Ross affidavit, as the interrelationship between the applicants and adjacent property owners has been put in issue by the applicants, and as the email from De Jager is not being offered for the truth of the contents but simply as part of the narrative and as the basis for the respondent Ross’ state of knowledge, this paragraph shall not be struck.
[14] With respect to paragraph 34, in reference to the dogfight, again, this issue was put in play by the applicants in their affidavit evidence and the evidence offered goes to the respondent Ross’ state of mind. The evidence in that paragraph is properly put before the court, again, not for the truth of the statements related to the party Martin-Downs, but simply for the fact that the witness asserts that the statement was made. As such, the paragraph shall not be struck.
[15] Paragraphs 39 and 40 similarly shall not be struck. These paragraphs confirm Ross’ knowledge that in fact the ROW is open to the public and her understanding of this is based upon the email from Carol Shepherd.
[16] With respect to paragraph 51, referring to the jogger incident allegedly involving Ken Murray, similarly, this issue has been raised by the applicants in their affidavit evidence and as such this paragraph is responding to that evidence. The information contained in this paragraph also relates to the respondent Ross’ statements made to the town Council based on information provided by Ken Murray. This evidence goes to establishing the state of mind of Ross and is relevant evidence in response to the applicants’ claim of defamation.
[17] The statements contained in paragraphs 68, 69 and 70 of the Ross affidavit, relate to the respondent Ross’ state of knowledge as to whether or not the ROW was open for public use prior to the publishing of her book. The affidavit of Hebert corroborates the evidence as to Ross’ state of knowledge at the material time. This evidence cannot be considered for its truth, but simply as part of the narrative and information available to Ross at the material time.
[18] With respect to the applicants’ attack on the exhibits appended to the Ross affidavit, it was submitted that the Martin-Downs email attached as an exhibit was prejudicial to the applicants and as such should be struck. Again, this evidence goes to the state of mind of the respondent and the statements contained in the email will not be considered as to the truth of the statements made but simply relating to the state of mind of the respondent.
[19] The same result applies with respect to exhibits J and K as both bear on the state of mind of the respondent Ross and are not being proffered for the truth of the contents.
[20] I have also concluded that the same considerations apply with respect to exhibits R and W.
[21] Apart from the portions of the applicants’ motion to strike portions of the Ross affidavit which were withdrawn on the argument of the motion, for these reasons, the remaining parts of the motion are dismissed entirely.
[22] Turning to the applicants’ motion to strike portions of the affidavit filed on behalf of the respondent OHT, namely paragraphs in the affidavit of Sean Carlisle Fraser sworn October 1, 2015, the applicants submit that various paragraphs of the affidavit and exhibits appended to it should be struck on the basis that the evidence is inadmissible as hearsay, as irrelevant or as the affiant expresses opinions on the ultimate issue at stake on the application.
[23] With respect to paragraph 59(b)–(g) of the Fraser affidavit, counsel for the respondent stated that this evidence was not being proffered to establish the truth of the statements made within the subparagraphs but rather as relevant history of the public use of the ROW.
[24] The applicants have put in issue the rights of use of the ROW and, as such, the evidence contained in paragraph 59 is relevant as to the steps taken by OHT regarding public access to the ROW.
[25] I have concluded that the evidence contained in paragraph 59 is properly tendered and admissible for the purpose described.
[26] With respect to paragraph 61 of the Fraser affidavit, the affiant did not provide the sources of his information as outlined in that paragraph, however he has subsequently provided particulars as to the source of that information in his supplementary affidavit of November 19, 2015. As such, the evidence from these sources that there had been no conflict or challenge of the public’s pedestrian use of the ROW in the timeframe in question, is relevant and admissible evidence.
[27] With respect to paragraphs 63 and 77 of the defendants’ affidavit, it is asserted on behalf of the applicants that the deponent expresses an opinion on the ultimate issue, however I have concluded that the particulars within this paragraph are relevant and admissible as they relate to the current and historical use of the ROW by the public and the OHT oversight as to the use of the ROW.
[28] The applicants’ objection with respect to paragraph 66 of the affidavit was withdrawn on the return of the motion.
[29] Counsel for the applicants stated on the return of this motion that the applicants’ objections with respect to exhibits C, R, U, W, Y, Z, AA, BB, and EE were withdrawn. With respect to exhibit X, counsel submitted that the objection with respect to this exhibit was based on the fact that it was a hearsay document, however the objection would not be pursued if the exhibit was simply offered in evidence as part of the narrative history relating to complaints and incidents alleged to have occurred at the ROW. Counsel for the OHT did not seek to introduce this evidence for the truth of the statements made and at such I have concluded that the information contained in exhibit X is admissible for that limited purpose.
[30] Having considered all of the paragraphs and exhibits in the Fraser affidavit attacked by the applicants in their motion, for the reasons expressed, the motion is dismissed.
[31] As to the costs of these motions, that will be determined at the conclusion of the Application.
Daley RSJ.
Released: June 10, 2016
CITATION: Raimondi et al v. Ontario Heritage Trust et al, 2016 ONSC 3866
COURT FILE NO.: CV-15-3006-00
DATE: 20160610
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
IDALGO RAIMONDI and NANCY RAIMONDI
Applicants
– and –
ONTARIO HERITAGE TRUST and NICOLA ROSS
Respondents
REASONS FOR JUDGMENT
Daley RSJ.
Released: June 10, 2016