Court File and Parties
CITATION: Darnley v. Thompson, 2016 ONSC 7466
ORANGEVILLE COURT FILE NO. 100/15
DATE: 20161130
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KELLY DARNLEY
Applicant
– and –
ALAN THOMPSON
Respondent
Kevin Sherkin and Ryan Wozniak, for the Applicant
Alan Lenczner Q.C. and Andrew Parley, for the Respondent
Bristoll v. Thompson
BRAMPTON COURT FILE NO. CV-16-0523-00
CHARLES BRISTOLL
Applicant
– and –
ALAN THOMPSON
Respondent
Kevin Sherkin and Ryan Wozniak, for the Applicant
Alan Lenczner Q.C. and Andrew Parley, for the Respondent
HEARD: April 21, 22, 2016
REASONS FOR DECISION
Daley RSJ.
[1] The applicants in both of these applications, which were heard together, sought declarations that the respondent, who is the mayor of the Town of Caledon (“Caledon”) and a Councilor for the Region of Peel (“Region”), be found to have contravened the Municipal Conflict of Interest Act (“MCIA”), and that, as a result, he be removed from both of those offices. The applicants also sought other ancillary relief, including an order that the respondent pay restitution.
[2] The respondent has denied the applicants’ claims and has denied any direct pecuniary interest in matters in which he participated as a voting member of council which could give rise to a conflict of interest within the terms of the MCIA.
[3] For the reasons that follow, I have concluded that both applications must be dismissed.
Overview
[4] The Darnley application was instituted in July 2015 and the application record with respect to that matter was filed in August 2015. Following the institution of the application and the filing of the application record, the applicant filed two supplementary records in which she put forward new and different theories in support of her position that the respondent had violated the MCIA.
[5] The evidentiary record relied upon by Darnley shifted and evolved following the institution of her application. As discussed below, I have concluded that, on examining the entire record, there is an absence of evidence with respect to critical aspects of the applicant’s claims. In several instances, there are also evidentiary gaps and as such no reasonable inferences, in Darnley’s favour, can be drawn.
[6] The Bristoll application was instituted in February 2016. It was presented as an application simply piggybacking on the Darnley application and its evidentiary record contains no cogent evidence whatsoever in support of the allegations made by that applicant.
[7] The applicant Bristoll states in his affidavit in support of his application that he relies upon the affidavit submitted by the applicant Darnley. However, it is notable that he acknowledged in cross-examination on his affidavit that he had not read the two affidavits contained in Darnley’s two supplementary records. As such, the evidentiary record on his application is wholly inadequate. Bristoll is not in a position to adopt the contents of those Darnley affidavits without having read them.
[8] It is clear from the evidence that the Bristoll application was instituted for the sole purpose of overcoming a possible intervening limitation period in the timeline applicable to the Darnley application. The evidentiary record put forward within the Bristoll application was, at best, sparse in supporting the allegations made and the relief sought by that applicant.
[9] The two applications will be considered individually below; however, a review of the available evidentiary record is necessary in order to put the analysis and the determinations made in a proper context. The Darnley evidentiary record, as expanded by the two supplementary records filed, must be examined in the order in which the evidence was put before the court.
Evidentiary Record
[10] The parties on these applications share common ground on much of the history behind the applications and, in particular, the municipal setting in which the applications were brought.
[11] Caledon is a municipal corporation northwest of Toronto and it is divided into five electoral districts and four Wards. Each Ward is represented by a Regional Councillor, with the exception of Wards 3 and 4 which share one Area and Regional Councillor.
[12] Caledon represents one of the three second-tier municipalities within the Region. The other two municipalities that make up the Region are Brampton and Mississauga. Caledon is the most northerly of the three municipalities in the Region and comprises 55% of the total land area in the Region.
[13] In considering the applications, the respondent’s financial interest in certain land, the land development underway in the Caledon area and within the Region, and votes that were taken relating to land development in these areas must be examined.
[14] It is asserted by the applicants that the respondent’s conflict of interest arises from various sources, including properties in which the applicant had a financial interest.
[15] The respondent held no municipal position until November 2003 and played no role in the decisions regarding the future land development and growth in Caledon. However, he was at that time the owner of approximately 100 acres near the western boundary of Caledon.
[16] In 2003, Caledon Council and the Region initiated a detailed planning process for the Mayfield West Community. They were developing planning principles, goals and objectives for this new community. The respondent was neither a member of Caledon Council nor the Region Council at the time.
[17] In December 2005, the Region established the Phase I settlement area within Mayfield West. The respondent was not a member of the Region Council at that time.
[18] In 2005, the Province of Ontario enacted the Places to Grow Act, 2005, S.O. 2005, c. 13, and the Greenbelt Act, 2005, S.O. 2005, c.1. This legislation dictated to municipalities where subdivision and employment growth could occur, and the latter piece of legislation prohibited land development in Greenbelt areas. Approximately 80% of Caledon’s landmass was restricted.
[19] The respondent had a property interest in what is referred to as the “Heritage Road Property,” located at 12722 Heritage Road, Caledon. This property is located almost at the western boundary of Caledon. Since approximately 1985, the respondent had farmed this property with the assistance of other members of his family, including his brother and father.
[20] The uncontradicted evidence of the respondent is that the Heritage Road Property is not within the areas known as Mayfield West Phase 1, Mayfield West Phase 2, the Alloa lands, or the GTA West Corridor Study Area as referred to by the applicants. The Heritage Road Property is approximately seven kilometres from Mayfield West Phase 1 and five kilometres from the proposed Mayfield West Phase 2.
[21] In the fall of 2014, the respondent’s family received an unsolicited offer from a numbered company to purchase the Heritage Road Property. This offer was presented by Max Harris of RE/MAX Realty Specialists Inc., on behalf of the purchaser. The purchaser was 1824129 Ontario Limited and the offer was signed by Robert Gray on behalf of that company.
[22] It is the respondent’s evidence that he did not know who was behind the offer from the numbered company. That evidence is uncontradicted.
[23] Further, it is the respondent’s agent’s uncontradicted evidence that he did not disclose to the respondent who was behind the offer.
[24] The offer was accepted by the respondent on September 19, 2014 and although the respondent acknowledged that he suspected a developer was behind the offer, he did not know which developer.
[25] It was the respondent’s evidence that his family decided to sell the Heritage Road Property partly because his father was approaching 80 years of age, and because he was running for mayor at the time.
[26] The uncontradicted evidence is that at no time prior to September 19, 2014 did the respondent know that Primont Homes Ltd. was the purchaser. Further, at no time after that date up to and including the time of the closing of the sale of the property did that company request any resolution from Caledon, nor did the respondent vote on any resolution involving that company.
[27] The applicants also assert that a conflict arises with respect to the property referred to as the Winston Churchill Property, which is a 100 acre property backing onto the Heritage Road Property. The respondent’s father and brother sold their interest in this property in 2004.
[28] The respondent has held various municipal positions. In November 2003, he was elected as the Area Councillor in Ward 2, Caledon. In November 2006, he was elected as Regional Councillor in Ward 2, which includes Mayfield West.
[29] In November 2014, the respondent was elected mayor of Caledon, following which he sat on Caledon Town Council and the Region Council.
[30] As to the development of lands within the Caledon area, the Town of Caledon Official Plan came into effect in 1979, following which it underwent a review which was eventually approved by the Ontario Municipal Board and work began under that Amended Plan in 1989.
[31] The Caledon Official Plan provided that new growth and development would be centered around Bolton, Caledon East and Mayfield West. This was referred to as the “tri-nodal growth strategy.”
[32] As part of the tri-nodal growth strategy, in June 2003, Caledon initiated a planning process for the Mayfield West Community Development Plan Study Area. The uncontradicted evidence is that the respondent did not become a Caledon Councillor until November 2003, prior to which the decision to develop Mayfield West had already been made by Caledon and the Region.
[33] As Mayfield West was located within Ward 2, the respondent necessarily played a role in finalizing the development plans for this area, which had already been established prior to his election as councillor.
[34] In December 2005, Peel Region Council passed a resolution authorizing the adoption of a Regional Official Plan Amendment Number 17, which established the boundaries of the settlement area for Phase 1 of Mayfield West. The respondent was not a member of Peel Region Council at the time of that vote.
[35] The Phase 1 Mayfield West development is made up of approximately 3000 acres of land. Building on that land commenced in 2006.
[36] The uncontradicted evidence of the respondent is that the Phase 1 development is approximately seven km from the Heritage Road Property and there are hundreds of other property owners within Caledon whose lands lie to the west of Phase 1 and to the east of the Heritage Road Property.
[37] As to the interaction between the Province of Ontario, Caledon and the Region on municipal planning initiatives, planning within Caledon locally has been largely determined by decisions made by the Province or the Region since the enactment of the Greenbelt Act, the Places to Grow Act and the Provincial Policy Statement 2005, issued under the Planning Act, R.S.O. 1990, c. P.13, s. 3.
[38] Further, in 2007, Caledon’s planning department initiated an Official Plan Review to ensure conformity with the new provincial legislation. Similarly, the Region also undertook a review with respect to its Official Plan to ensure conformity with the new provincial policies and legislation.
[39] With respect to the Mayfield West Phase 2 development, starting in 2008, Caledon’s Planning Department commenced planning for future population growth, including consideration of future expansion of Mayfield West into Phase 2.
[40] The lands composing Phase 2 of Mayfield West are located approximately five kms from the Heritage Road Property.
[41] The Region released a report dated September 9, 2014 regarding Phase 2 development. The report was prepared and released prior to Region Council’s vote to amend the Peel Official Plan to reflect the proposed expansion of development within Mayfield West.
[42] Phase 2 is bordered by Hurontario Street to the east, Mayfield Road to the south and Chinguacousy Road to the west.
[43] On September 11, 2014, Regional Council voted in favour of the Regional Official Plan Amendment Number 29 and the respondent voted in favour of this resolution. Phase 2 remains in the early planning stage as of the date of these applications and the Caledon Official Plan has not been amended to allow development in this area. The evidence is that it is not expected that any residential or commercial development will occur on these lands for at least five years.
[44] It is the uncontradicted evidence of the respondent that any potential development of the Heritage Road Property is at least 50 years in the future.
[45] The applicants assert that the respondent was in a conflict of interest as a result of two other land development concerns, namely property owned by the Alloa Landowner Group and the Provincial undertaking of the GTA West Transportation Corridor.
[46] The respondent is not a member of the Alloa Landowner Group, whose lands lie outside Mayfield West. There is no evidence that he has owned or has any interest in any of the lands held by that group and it is the respondent’s evidence that the development of those lands would not occur until at least 10 years into the future.
[47] As to the GTA West Transportation Corridor, the evidence is that neither Caledon nor the Region is able to determine the location of this transportation corridor or when it will proceed.
[48] Darnley, in her two filed supplementary records, puts forth additional evidence and allegations of conflict of interest beyond that set out in her initial application record, which I will consider within the analysis below.
[49] Similarly, I will consider the specific votes which the applicants assert gave rise to a conflict of interest on the part of the respondent in the analysis below.
Legal Framework
[50] The purpose of the MCIA is to prohibit members of councils and local boards from engaging in the decision-making process in respect to matters in which they have a personal, economic interest. There is no need to find corruption on the part of a member or actual loss on the part of the council or board. As long as a member fails to honour the standard of conduct prescribed by the statute, regardless of his good faith or the propriety of his motive, he is in contravention of the statute: Moll v. Fisher (1979), 1979 CanLII 2020 (ON SC), 23 O.R. (2d) 609 (Div. Ct.); MCIA, s. 5.
[51] Section 5 of the MCIA considers the duties of members of council or boards and provides as follows:
When present at meeting at which matter considered
- (1) Where a member, either on his or her own behalf or while acting for, by, with or through another, has any pecuniary interest, direct or indirect, in any matter and is present at a meeting of the council or local board at which the matter is the subject of consideration, the member,
(a) shall, prior to any consideration of the matter at the meeting, disclose the interest and the general nature thereof;
(b) shall not take part in the discussion of, or vote on any question in respect of the matter; and
(c) shall not attempt in any way whether before, during or after the meeting to influence the voting on any such question.
Where member to leave closed meeting
(2) Where the meeting referred to in subsection (1) is not open to the public, in addition to complying with the requirements of that subsection, the member shall forthwith leave the meeting or the part of the meeting during which the matter is under consideration.
When absent from meeting at which matter considered
(3) Where the interest of a member has not been disclosed as required by subsection (1) by reason of the member’s absence from the meeting referred to therein, the member shall disclose the interest and otherwise comply with subsection (1) at the first meeting of the council or local board, as the case may be, attended by the member after the meeting referred to in subsection (1).
[52] The provisions of s. 5 are engaged in circumstances where a member “has any pecuniary interest, direct or indirect, in any matter.” However, s. 2 defines the scope of “indirect pecuniary interest.”
[53] Section 2 provides as follows:
Indirect pecuniary interest
- For the purposes of this Act, a member has an indirect pecuniary interest in any matter in which the council or local board, as the case may be, is concerned, if,
(a) the member or his or her nominee,
(i) is a shareholder in, or a director or senior officer of, a corporation that does not offer its securities to the public,
(ii) has a controlling interest in or is a director or senior officer of, a corporation that offers its securities to the public, or
(iii) is a member of a body,
that has a pecuniary interest in the matter; or
(b) the member is a partner of a person or is in the employment of a person or body that has a pecuniary interest in the matter.
[54] There is no evidence that the provisions in s. 2 are engaged vis-à-vis the respondent and as such, the only basis upon which s. 5 would be engaged is if it were established by the applicants that the respondent had a direct pecuniary interest in a matter before council.
[55] The onus is on the applicants to establish the impugned motion and that the respondent had a direct pecuniary interest in the matter which was the subject of the motion.
[56] Section 9(3) of the MCIA provides as follows:
Time for bringing application limited
(3) No application shall be brought under subsection (1) after the expiration of six years from the time at which the contravention is alleged to have occurred.
[57] It was acknowledged by counsel for all parties that all of the allegations advanced by the applicants relating to events which occurred more than six years prior to the institution of the Darnley application on July 20, 2015 are statute barred. This provision is an absolute limitation period: MacDonald v. Ford, 2015 ONSC 5773, 258 A.C.W.S. (3d) 20. Thus, only impugned Caledon resolutions after July 2009, at which the respondent voted, may be considered.
[58] Section 9(1) provides a six-week limitation period when a fact comes to the knowledge of a complainant that indicates that a member may have contravened s. 5 of the MCIA.
[59] In order to constitute a pecuniary interest, there must be something more than infrequent past business dealings or the possibility of future business. To have a conflict under s. 5 of the MCIA, there must be a pecuniary interest existing at the time of the vote. There must be an actual conflict or, at least, there must be a reasonable assumption that the conflict will occur. The pecuniary interest must be definable and real rather than hypothetical: Lorello v. Meffe, 2010 ONSC 1976, 99 M.P.L.R. (4th) 107, at para. 59.
[60] In Ferri v. Ontario (Attorney General), 2015 ONCA 683, 391 D.L.R. (4th) 496, Hourigan J.A. considered the scope of what constitutes a “pecuniary interest” within the context of the MCIA and stated as follows at paras. 9-10:
Turning first to the appellant's argument that the application judge erred by applying an overly broad definition of "pecuniary interest" under the MCIA, I note that "pecuniary interest" is not a defined term in the MCIA. The case law establishes that a "pecuniary interest" under the MCIA is restricted to a financial, monetary, or economic interest: see Mondoux v. Tuchenhagen, 2011 ONSC 5398, 107 O.R. (3d) 675(Div. Ct.), at para. 31; Magder v. Ford, 2013 ONSC 263, 113 O.R. (3d) 241 (Div. Ct.), at para. 6, leave to appeal to S.C.C. refused, [2013] S.C.C.A. No. 117, 326 O.A.C. 400 (note).
This court has held that, given the purpose of the MCIA, "what constitutes a pecuniary interest sufficient to trigger the provisions of the MCIA is not to be narrowly confined": Orangeville (Town) v.Dufferin (County), 2010 ONCA 83, 266 O.A.C. 207, at para. 22. The competing policy imperative is that "pecuniary interest" must not be construed so broadly that it captures almost any financial or economic interest such that it risks needlessly disqualifying municipal councillors, and others captured under the ambit of the MCIA, from participating in local matters of importance to their constituents. Section 4(k) of the MCIA operates to respond to this concern and ameliorate the potentially harsh effects of a broad definition of pecuniary interest by ensuring that pecuniary interests that are truly remote or insignificant are not caught under s. 5.
[61] Exceptions to the terms of s. 5 of the MCIA are set out in s. 4 and the provisions of s. 4(k) must be considered in the context of these applications. It provides as follows:
- Section 5 does not apply to a pecuniary interest in any matter that a member may have…
(k) by reason only of an interest of the member which is so remote or insignificant in its nature that it cannot reasonably be regarded as likely to influence the member.
[62] The test applicable to the examination of the impugned votes specified in the application is an objective one: Ferri, at para. 16.
[63] A pecuniary interest cannot be hypothetical and the pecuniary gain cannot be the subject of any contingency
Analysis
The Darnley Application
[64] As noted, any alleged breach by the respondent prior to July 20, 2009 is statute barred in accordance with s. 9(3) of the MCIA. This was acknowledged on behalf of the applicant. As such, any alleged breach or conflict predating July 20, 2009 need not be examined within the context of these applications.
Council Votes in November 2007
[65] At a meeting of Caledon Council of November 6, 2007, council members voted unanimously that “no further population beyond 108,000 persons by 2031 [will] be considered until Council has developed an overall strategy for managing the growth in the ‘white belt’ and until the Caledon and Peel conformity exercise for the ‘Places to Grow’ policy initiative has been completed and we have a definitive reaction from the Province of Ontario.”
[66] In her affidavit, the applicant asserted that this vote represented a vote against allocating growth to Bolton. On reading the minutes of Caledon Council, it is clear that this vote was for the purpose of deferring decisions with respect to settlement boundary expansion until after council had developed an overall strategy for managing growth and until the completion of the conformity exercise by both the Region and Caledon.
Council Votes in April 2010
[67] On April 6, 2010 a Caledon Counsel meeting was held. At the meeting, members of the Caledon Chamber of Commerce were demanding a “call to action,” which included an open letter to various businesses within Caledon in respect of the town’s growth plans.
[68] During this meeting, Caledon Council voted to direct the mayor to write a letter to local businesses clarifying the town’s plans for growth. The respondent voted in favour of this resolution along with the mayor and five other councillors. It was asserted on behalf of the applicant Darnley that this vote called into question the public participation of the Chamber of Commerce. Contrary to that, the record shows that this vote was for the purpose of correcting misinformation communicated by the Chamber of Commerce.
Council Votes in 2014
[69] The applicant Darnley makes reference to several votes in June and September 2014, including one where a developer, Digram Developments, was seeking approval of a subdivision within Mayfield West. This area had been identified for development as early as 2003, and development required either secondary plan approval or subdivision approval.
[70] At a meeting of counsel on June 18, 2014, it was mentioned that Primont Homes might be one of the builders of homes within that subdivision, although once a plan of subdivision is approved, a builder has no need for any approval from Caledon.
[71] On considering any impugned votes in the applicable time period from July 2009 to July 2015 in respect of the Mayfield West Community, the record is clear. Any such vote took place many years after the decision was made in 1997 and 2003 to develop this area, which lands within the Mayfield West boundary were five to seven kilometres from the Heritage Road Property.
[72] Further, the applicants have not challenged the respondent’s evidence that any potential development of those lands would not occur for at least 50 years. There are thousands of acres of land in the white belt area between the Heritage Road Property and Mayfield West.
[73] The applicants have failed to present any evidence that the respondent benefited in any way from the impugned votes in the period between July 20, 2009 up to and including September 2014 when he sold the Heritage Road Property.
[74] Further, there is no evidence that the respondent benefited more than any other elector who owned lands to the west of the Mayfield West Community: MCIA, s. 4(j).
[75] It is clear upon review of the applicant Darnley’s evidence that at the heart of the application is her concern over planning and development, particularly in Bolton when compared with Mayfield West. Even if the respondent had a qualifying pecuniary interest within the terms of the MCIA, which I find he did not, he could not be said to be in breach of the MCIA given that he had a “pecuniary interest in common with electors generally”: MCIA, s. 4(j).
[76] Further, there is no evidence whatsoever that the respondent had a pecuniary interest that was present and real at the time of any impugned vote. A potential or speculative pecuniary interest is not sufficient.
[77] As to the applicant’s allegations concerning the GTA West Transportation Corridor, counsel for the applicants made no submissions in respect of this during argument. On considering the evidence offered with respect to this aspect of the application, and as well with respect to the property owned by Alloa Land Owners, there is no cogent evidence whatsoever that would support the claims that the respondent had a pecuniary interest in either of these that would give rise to a qualifying conflict of interest under the MCIA.
[78] The applicant Darnley has asserted that the respondent had a pecuniary interest in respect of other matters which were later developed. She argued this in her two supplementary application records, which I find are distinct applications from that initiated by the applicant in July 2015.
[79] With respect to the applicant’s first supplementary application and the evidence contained therein, the evidence is clear that the applicant has instituted a second application within this supplementary record and that the information upon which this second application record is based was all within her possession well prior to six weeks before she delivered the supplementary application record. As such, the allegations made within the first supplementary application record are, in any event, statute barred in accordance with s. 9(1) of the MCIA. I will nevertheless consider the supplementary records.
[80] In her first supplementary application, the applicant asserts a conflict of interest arising from the respondent and his father having obtained a mortgage from Rupee Manor Developments Inc. in November 2007 in the sum of $600,000. The evidence is clear that the mortgage was repaid in full at the time of the closing of the sale of the Heritage Road Property on April 20, 2015. The applicant offers no evidence whatsoever that the respondent voted on any matter relating to Rupee Manor Developments Inc. or that that company presented any kind of application to Caledon.
[81] Further, it is argued on behalf of the applicants that the respondent knew that one Jack Eisenberger was a principal of Rupee Manor Developments Inc. and of Fieldgate Group of Companies. However, her affidavit evidence in this regard simply states that she was aware that Mr. Eisenberger was a principal of the Fieldgate Group of Companies, a developer and construction company in the Caledon and Brampton area.
[82] There is no evidence that the respondent had any knowledge whatsoever of a connection between Rupee Manor Developments Inc. and the Fieldgate Group of Companies.
[83] There is no evidence that Rupee is completely controlled by Fieldgate or was incorporated for an improper fraudulent purpose. Persons contracting with or transacting business with either Rupee or Fieldgate are lawfully permitted to view each company as a separate independent entity: Transamerica Life Insurance Co. of Canada v. Canada Life Insurance Co. (1996), 1996 CanLII 7979 (ON SC), 28 O.R. (3d) 423 (Ct. J. (Gen. Div.)); Sauer v. Canada (Attorney General) (2006), 2006 CanLII 74 (ON SC), 79 O.R. (3d) 19 (Sup. Ct.).
[84] There is no connection whatsoever between the respondent and Fieldgate, and the applicant has made no assertion or offered any evidence that the respondent knew of Fieldgate, its principals or its relationship with the mortgagee Rupee.
[85] Further, in the first supplementary application record, the applicant asserts that the respondent voted on a motion on August 10, 2010 in respect of Mayfield West Phase 2 which involved the Fieldgate Group of Companies. In her affidavit, she wrongly asserts that this company was seeking approval to develop a major commercial center. The evidence provided is to the contrary. Namely, the Fieldgate Group of Companies wished to have an opportunity to present an alternative land-use concept for consideration to Caledon and the residents.
[86] The respondent voted in favour of, and Caledon Council approved, the preferred scenario which reduced the area of expansion.
[87] There is no evidence that the respondent had any pecuniary interest involving the decision on this vote or that he had any involvement commercial or otherwise at any time with the Fieldgate Group of Companies.
[88] Further, in the supplementary application record, the applicant asserts a conflict of interest arising with respect to Fieldgate in July 2012. Counsel, on behalf of Fieldgate, deferred consideration for a two-month period of the proposed Development Charges Bylaw 79 – 20124, for the reasons set out in the minutes of the Regional Council Meeting of July 5, 2012. The respondent was not a moving councillor, however he voted in favour of this request. There is no evidence that he had any qualifying pecuniary interest in the subject matter of the vote, nor any resulting conflict of interest.
[89] Similarly, the applicant asserts that the respondent voted on a motion regarding a transition period for the implementation of proposed development charges relating to Fieldgate Properties, which were not in Caledon. There is no evidence that the respondent had a qualifying pecuniary interest in the subject matter of this vote or that any conflict of interest arose.
[90] Finally, in the first supplementary application record, the applicant asserts that the respondent was in a conflict of interest when he voted in favour of a temporary sales pavilion for the purpose of facilitating the sale of homes in a subdivision approved and constructed within Mayfield West Phase 1. Again, there is no evidence that the respondent had any pecuniary interest whatsoever in the matter under consideration.
[91] Turning to the applicant’s second supplementary application record and the supporting affidavit sworn January 11, 2016, it is clear that all of the facts asserted in that supplementary affidavit were available or known to the applicant at the time of the swearing of her first affidavit of August 17, 2015. Furthermore, the mortgage in favour of Rupee was available to the applicant, given her evidence that she conducted a title search of the Heritage Road Property prior to executing her affidavit in August 2015.
[92] Again, in this second supplementary application record and the supporting affidavit evidence, the applicant offers no evidence whatsoever that the respondent knew the principals of either Rupee or any of the other companies referred to.
[93] Further, although she asserts that the respondent voted at Caledon Council on a proposed draft plan of subdivision submitted by Argo Caledon Corporation, there is no evidence of any connection or relationship between the respondent and Argo Caledon Corporation. The property which was the subject of the application regarding the plan of subdivision was more than seven kms away from the location of the Heritage Road Property.
[94] As such there is no evidence of any qualifying pecuniary interest giving rise to a conflict of interest within the terms of the MCIA.
[95] Further, the applicant Darnley makes totally unsupported allegations of a conflict on the part of the respondent, without any foundational pecuniary interest asserted, in respect of a possible connection with one of nine guarantors on a mortgage negotiated by Argo Caledon Corporation in favour of CIBC.
[96] The applicant put forward a patchwork of disconnected assertions in respect of Argo Caledon Corporation. In putting forward her assertions of some impropriety on the part of the respondent, the applicant failed to present any evidence whatsoever supporting the allegations made against the respondent. Notably, she does not assert that at the time of the impugned vote of July 9, 2013, the respondent knew any principal of Argo Caledon Corporation or that he knew or was aware of the identity of any of the guarantors of the mortgage granted by Argo Caledon Corporation in favour of CIBC.
[97] There is simply no evidence establishing that the respondent had any qualifying pecuniary interest in relation to Argo Caledon Corporation that would give rise to a conflict of interest within the meaning of the Act.
[98] A relevant pecuniary interest must be present and real at the time of any impugned vote. It cannot simply be a potential, hypothetical or speculative pecuniary interest.
[99] There is no evidence of any connection, let alone a strong connection between any impugned vote and the respondent’s ownership of the Heritage Road Property. Further, the respondent’s property was located five to seven kms from the land in question.
[100] It is also important to note that the respondent had owned the Heritage Road Property since 1985 and had resided there for many years. Further, it is the unchallenged evidence of the respondent that any potential development of the Heritage Road Property would be at least 50 years into the future.
[101] Further, there is no evidence that the respondent benefited from any of the impugned votes in the period between July 20, 2009 through to September 2014 when the Heritage Road Property was sold.
[102] In the result, I have concluded that the applicant has failed to present any evidence that the respondent had a qualifying pecuniary interest either directly or indirectly in any subject matter voted on by him, as alleged in the first application instituted or in the two supplementary applications filed thereafter.
[103] In view of the findings made and the conclusions I have reached, there is no need to consider the application of any intervening limitation period, apart from concluding that the only reviewable votes by the respondent were those conducted after July 2009.
[104] For all of these reasons the Darnley application is dismissed.
The Bristoll Application
[105] In view of my finding that the Bristoll application was simply piggybacked upon the Darnley application, and given its lack of any cogent evidence whatsoever, and as well given my conclusions with respect to the merits of the Darnley application, upon which the applicant Bristoll relies, the Bristoll application fails for the same reasons and as such is dismissed.
Costs
[106] If counsel are unable to resolve the issue of costs, counsel for the respondent shall file costs submissions of no longer than five pages along with a bill of costs within 30 days and the applicants shall file their responding costs submissions in similar form within 30 days thereafter.
Daley RSJ.
Released: November 30, 2016
CITATION: Darnley v. Thompson, 2016 ONSC 7466
ORANGEVILLE COURT FILE NO. 100/15
DATE: 20161130
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KELLY DARNLEY
Applicant
– and –
ALAN THOMPSON
Respondent
Bristoll v. Thompson
BRAMPTON COURT FILE NO. CV-16-0523-00
BETWEEN:
CHARLES BRISTOLL
Applicant
– and –
ALAN THOMPSON
Respondent
REASONS FOR JUDGMENT
Daley RSJ.
Released: November 30, 2016