BARRIE COURT FILE NO.: 14-1371-SR DATE: 20160613 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: 1728318 Ontario Inc., Plaintiff AND: The Corporation of the Town of Penetanguishene, Defendant
BEFORE: THE HON. MR. JUSTICE G.M. MULLIGAN
COUNSEL: M.J. Prost, Counsel for the Plaintiff J.E. Biggar, Counsel for the Defendant
HEARD: June 6, 2016
Endorsement
[1] The defendant, The Corporation of the Town of Penetanguishene (“the Town”) brings a motion for summary judgment against the plaintiff, 1728318 Ontario Inc. (“172”). If successful, the Town’s motion would dismiss some aspects of the plaintiff’s claim, but leave other aspects for trial in this summary procedure matter.
Background
[2] 172 commenced an action in Small Claims Court against the Town on March 27, 2014. The original claim was for damages for breach of contract of $25,000 and in the alternative, a declaration withdrawing the heritage building designation for the subject property. 172 reserved the right to transfer this matter to the Superior Court. This matter was then transferred to the Superior Court on consent by order of Justice R. MacKinnon, dated September 16, 2014. The plaintiff’s Amended Statement of Claim brought the matter under Rule 76 Simplified Procedure in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, counsel for the plaintiff acknowledged that the damages sought in this procedure would not exceed $100,000. In its Amended Statement of Claim, the plaintiff again requested in the alternative a declaration withdrawing the heritage building designation.
[3] By way of its Amended Amended Statement of Defence, the Town took issue with the claim for damages against it, and also questioned the jurisdiction of the Ontario Superior Court of Justice to grant the declaratory relief requested by the plaintiff in this action.
[4] The relief sought by the Town in this motion for summary judgment is expressed as follows in the Notice of Motion:
This motion is for summary judgment dismissing the plaintiff’s claim in part, specifically:
(a) the plaintiff’s request for damages insofar as it regards the alleged breach of the September 30, 1992 contract with respect to maintenance of the mural which has allegedly resulted in a deterioration of the bricks; and
(b) the declaratory relief requested by the plaintiff regarding the heritage building designation on the subject property contained in paragraphs 1(b) and (c) of the Statement of Claim.
[Emphasis added.]
The Factual Background
[5] It is not necessary to review all of the facts set out in the various affidavits of the parties, but a brief overview will provide context for the discussion that follows.
[6] The subject property, known as 1 Water Street in the Town of Penetanguishene, is a building containing a combination of commercial and residential units. It was designated as an heritage building in 1990. In 1992, the Town entered into a License Agreement with the previous owner, authorizing the Town to create a mural on the east wall of the building. The Agreement was for a 10-year period with a 10-year right of renewal. The Agreement was registered on title. The plaintiff purchased the subject property in 2007. Thereafter, the owner of the plaintiff company began a lengthy dialogue with the Town about allegations of deterioration of the bricks as a result of the application of oil-based paint when the mural was applied. The owner was unable to resolve the matter, and so commenced a Small Claims Court action on March 31, 2014. It should be noted that the original Agreement registered by the Town provided the Town’s obligations at the end of the Agreement to “restore the east wall of the face of the building to its original condition by painting over the mural to match the rest of the building.” The Agreement also provided that the Town had an ongoing obligation to maintain the mural during the Agreement. Section 5 of the Agreement provided:
The [Town] shall be responsible for the maintenance of the mural and may, from time to time, gain access to the property for the purposes of maintaining or replacing the mural during the currency of this license.
[7] The Agreement terminated, according to its terms on September 30, 2012.
[8] Both parties filed affidavits with respect to the facts and circumstances surrounding the mural, which was painted by the Town on the subject property in 1992. Because this matter is proceeding under the simplified rules, there were no examinations for discovery and no cross-examinations of the affidavits.
[9] Although not clearly set out in the Notice of Motion, counsel for the Town submits that certain issues ought to be dealt with now on a summary judgment motion with the remainder issue, the Town’s obligation to paint over the mural at the end of the contract, to be left to trial. In its Statement of Defence, the Town denies that it was responsible for maintaining the building or brick wall. Its only obligation was to maintain the mural. The Town further submits that much of the claim of the plaintiff ought to be disposed of based on a limitation period argument.
Analysis
(a) The Heritage Designation
[10] In my view, the Ontario Heritage Act, R.S.O. 1990, c. O.18, provides a complete code as to the process for requesting the removal of a heritage designation by a municipality. Further, the Act provides a specialized body, the Conservation Review Board, with respect to appeals from municipal decisions regarding heritage buildings. Individuals such as the plaintiff have remedies available. In the event that a municipality will not make a decision, a party can bring a mandamus application. If a party is not satisfied with the decision of the Conservation Review Board, an application for judicial review to the Divisional Court may be appropriate. It is acknowledged that the plaintiff has not asked the municipality for this relief.
[11] Since those steps have not been taken, I am satisfied that the declaratory relief sought by the plaintiff in this court ought to be dismissed on this summary judgment motion.
(b) The Claim
[12] There is no doubt that there has been a seismic shift in the use of summary judgment motions following the guidance of the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, and the Ontario Court of Appeal’s earlier decision Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, 108 O.R. (3d) 1.
[13] With respect to the simplified rules, the Court of Appeal provided the following guidance in Combined Air, at para. 256:
First, summary judgment motions in simplified procedure actions should be discouraged where there is competing evidence from multiple witnesses, the evaluation of which would benefit from cross-examination, or where oral evidence is clearly needed to decide certain issues. Given that Rule 76 limits discoveries and prohibits cross-examination on affidavits and examinations of witnesses on motions, the test for granting summary judgment will generally not be met where there is significant conflicting evidence on issues confronting the motions judge. While the motions judge could order the hearing of limited oral evidence on a summary judgment motion under rule 20.04(2.2), in most cases where oral evidence is needed, the efficiency rationale reflected in the rule would indicate that the better course is to simply proceed to a speedy trial, whether an ordinary trial or a summary one.
[14] In Sutton Group-All Pro Realty Ltd. v. Kim, 2014 ONSC 891, [2014] O.J. No. 891, aff’d 2014 ONCA 583, [2014] O.J. No. 3758, Mew J. considered the availability of summary judgment in a case which fell within the simplified procedure rules. After considering the expanded powers in Mauldin, the court determined that the Court of Appeal’s approach in Combined Air with respect to simplified procedure matters had been superceded by the Supreme Court of Canada’s decision in Mauldin. As Mew J. stated, at para. 19:
In the present case, while there are some facts in dispute, having regard to the principles articulated in Mauldin, and utilizing the powers given to the court by Rule 20.04(2.1), the inference necessary to make all findings of fact required to dispose of this matter can comfortably be drawn without the need for a trial.
[15] On the facts before him, Mew J. granted summary judgment in a case involving the simplified rules. That decision was upheld by the Ontario Court of Appeal. However, the Sutton Group case can be distinguished from the case at bar. Mew J. was able to grant judgment for the plaintiff’s entire claim. Unlike the present case, nothing was left to be adjudicated at a separate trial. In my view, there are no efficiencies to be achieved by granting partial summary judgment on this issue while reserving other issues for trial in a simplified procedure case. The evidence flows from the conflicting affidavits filed by the parties and there has been no opportunity to cross-examine those affiants. A simplified procedure trial will provide an opportunity for cross-examination and avoid inconsistent results from a limited review of affidavits at a summary judgment motion.
Conclusion
[16] The defendant’s summary judgment motion for partial summary judgment on the damages claim is dismissed. The defendant’s summary judgment motion dismissing the plaintiff’s claim for declaratory relief is granted.
[17] Because the matter can proceed by way of a simplified procedure action, I see no benefit in reserving to myself any of the expanded powers provided in Rule 20. The parties would be better served to move this matter along by way of a simplified trial during the next civil trial sittings in Central East Region.
Costs
[18] The defendant has achieved partial success with respect to this summary judgment motion. However, a trial is still necessary with respect to the plaintiff’s damages claim. If the parties are unable to reach an agreement with respect to costs, I will receive written submissions not exceeding three pages from the defendant within 20 days of the release of this judgment. The plaintiff will then have a further 10 days to submit reply submissions, not exceeding three pages.