Joseph’s Holdings Ltd. v. Windsor (City), 2018 ONSC 6163

COURT FILE NO.: CV-13-19895

DATE: 20181016

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Joseph’s Holdings Ltd.

Plaintiff (Responding Party)

– and –

The Corporation of the City of Windsor and Home Depot Holdings Inc.

Defendants (Moving Parties)

Raymond G. Colautti, for the Plaintiff (Responding Party)

Sheila C. Handler, for the Defendant, (Moving Party), the Corporation of the City of Windsor

Bonnie Roberts Jones, for the Defendant (Moving Party), Home Depot Holdings Ltd.

HEARD: January 31, February 1 and February 13, 2018

REASONS FOR JUDGMENT

ON THE DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT

VERBEEM J.

I) OVERVIEW OF THE SUMMARY JUDGMENT MOTIONS AND THE ACTION

[1] The defendants, the Corporation of the City of Windsor (“the City”) and Home Deport Holdings Ltd. (“Home Depot”), both move for summary judgment dismissing this action against them. They each assert that the available evidence establishes that there is no genuine issue that requires a trial with respect to the claims of liability made against them, in the following context.

[2] In the action, the plaintiff, Joseph’s Holdings Ltd. (“Joseph’s”) claims that the individual and/or combined actionable misconduct of the City and Home Depot frustrated its ability to develop real property that it owns, municipally described as 2025 Division Road, Windsor, Ontario (“the subject property”), in a manner consistent with its intended commercial use of that property as the site of a retail produce store. The plaintiff contends that the individual and/or combined actions of the City and Home Depot foreclosed all methods of access to the subject property and, as a result, it was rendered “landlocked, useless and [of] no value.” In its statement of claim, the plaintiff claims legal and equitable remedies that would provide it with ongoing access to the subject property, in perpetuity, over abutting property owned by Home Depot, together with damages and/or equitable compensation for asserted consequential and other financial losses, which the plaintiff suggests total in the millions of dollars.

[3] At this stage in the proceeding, the claims for remedial access appear moot because after the statement of claim was served, the plaintiff and Home Depot eventually entered into a reciprocal access agreement that granted a perpetual easement over a portion of Home Depot’s land, in favour of the subject property. However, in the context of the motions, the plaintiff asserts that it has always been entitled to a right of access and the defendants’ denial of same has caused it to sustain financial losses.

[4] In the action and their respective motions for summary judgment, the City and Home Depot respectively deny engaging in any actionable wrongdoing as it relates to the plaintiff’s access to the subject property or its ability to develop that property for a commercial use. They submit that as a consequence of the nature of and circumstances surrounding the development of Home Depot’s property, which abuts the subject property, it was anticipated that access to the subject property would be accommodated through a Reciprocal Access Agreement (“RAA”) to be negotiated between Home Depot and the owner of the subject property, if required. That term was specified in a Site Plan Control Agreement (“SPCA”) made between the City and Home Depot which was registered on title to Home Depot’s land in 2007, prior to the plaintiff’s purchase of the subject property in 2009. The plaintiff acknowledges that it was aware of the terms of the SPCA when it acquired title to the subject property and it understood that it would be required to negotiate the terms of an RAA with Home Depot, in order to gain access to the subject property.

[5] Although it purchased the subject property in 2009, the plaintiff did not approach Home Depot to initiate RAA negotiations until late April 2013. At that time, the plaintiff intended to construct a commercial premises on the subject property from which it would operate its retail produce business. The plaintiff intended to build a structure that was large enough to accommodate its own business, together with identified third party tenants, who also operate retail food sales businesses that are complimentary to the plaintiff’s business. The plaintiff planned to complete construction and have its premises open to the public by mid-October 2013 (before the Thanksgiving weekend). There is no evidence that the plaintiff advised Home Depot about its intention in that regard, before it served its statement of claim in September 2013.

[6] In 2012, the plaintiff retained Rosati Construction Inc. (“Rosati”) to actively develop the subject property. Rosati’s responsibilities included designing and building the proposed commercial premises and negotiating the terms of the anticipated RAA with Home Depot. Rosati estimated that the construction of the premises could be completed over the course of approximately four to five months and that a negotiated RAA could be finalized within two months of initial contact with Home Depot. The latter estimate ultimately proved to be inaccurate. A substantially longer period of time was required to negotiate and finalize the anticipated RAA with Home Depot and complete the related action necessary to give effect to the plaintiff’s access. The plaintiff asserts that its proposed tenants lost interest in the development when it became apparent that construction of the premises may not be completed by October 2013. Those tenants eventually resiled from their commitments to the plaintiff and sought out alternative operating premises.

[7] It appears that as early as mid-2013 and no later than mid-2014, even the plaintiff lost interest in its proposed development. The plaintiff did not provide any instructions concerning the development to Rosati, at all, after it consulted with litigation counsel in mid-July of 2013. Even so, Home Depot proceeded to negotiate the terms of an RAA with the plaintiff. The plaintiff eventually retained counsel (other than its litigation counsel) to negotiate the RAA, which was finalized and ready for execution by the plaintiff in the fall of 2015 (after the requisite consent was obtained from the municipality’s Committee of Adjustment in July 2015). The plaintiff did not execute the RAA until mid-July 2017.

[8] The defendants, respectively, submit that the voluminous evidentiary record adduced on these motions does not disclose any genuine issues that require a trial to determine with respect to the plaintiff’s claims. They each assert that, at all times, they acted in a reasonable and principled manner and in the absence bad faith. They respectively submit that the plaintiff’s development was not frustrated by actionable misconduct on their parts. Instead, they posit that the plaintiff was not successful in meeting its aspirational goal to develop and open its commercial premises for business by October 2013 because of its unreasonable and unrealistic belief that a complex RAA (including cost-sharing arrangements for expenses incurred by Home Depot in developing and servicing its own land and anticipated expenses to be incurred by Home Depot in the maintenance and upkeep of those portions of its land over which the plaintiff sought access) could be negotiated and finalized within two months of the plaintiff’s initial access-related contact with Home Depot.

[9] Conversely, the plaintiff submits that the evidence discloses several issues that require a trial to determine including whether the City was negligent in:

1. the manner in which it negotiated the SPCA with Home Depot;

2. failing to ensure that Home Depot entered into an RAA with either the plaintiff or the plaintiff’s predecessor in title at some point prior to April 2013; and

3. sending correspondence to Home Depot in November 2009, in which it ostensibly relieved Home Depot of any obligation it may have had to enter into an RAA with the owner of the subject property.

[10] The plaintiff further submits that a trial is required to determine whether the City’s conduct and its corresponding impact on the plaintiff’s use and enjoyment of the subject property constitutes an actionable nuisance.

[11] Finally, the plaintiff submits that a trial is required to determine issues related to the liability of Home Depot including:

1. whether Home Depot breached its covenant to enter into an RAA with the owner of the subject property, as expressed in the SPCA;

2. whether Home Depot breached its duty to fulfill its obligations under the SPCA “in good faith” and correspondingly, whether it adopted unlawful, unjustified and unreasonable positions designed to frustrate the plaintiff’s ability to secure timely access to the subject property in accordance with the terms of the SPCA;

3. whether the terms of the SPCA created an easement over Home Depot land in favour of the plaintiff, even in the absence of a negotiated RAA;

4. whether the plaintiff was (and is) entitled to access over Home Depot’s property on the basis of proprietary estoppel; and

5. whether Home Depot’s interference with the plaintiff’s use and enjoyment of the subject property constitutes an actionable nuisance.

[12] As a result, the plaintiff submits that the defendants’ motions for summary judgment ought to be dismissed.

II) THE ALLEGATIONS OF LIABILITY ASSERTED IN THE STATEMENT OF CLAIM

[13] The defendants submit and for reasons that I will set out later, I accept that the statement of claim fails to adequately plead material facts in support of:

1. Several of the bases of liability that the plaintiff asserts against the City in the context of its motion for summary judgment (including negligence in its negotiation of its SPCA with the defendant Home Depot in 2007, negligence in failing to enforce the SPCA before the plaintiff acquired title to the subject property and nuisance);

2. The plaintiff’s entitlement to proprietary remedial relief as against the City; and

3. A basis of liability that the plaintiff asserts against Home Depot in the context of this motion (nuisance).

[14] As a result of the disconnect between the content of the statement of claim and aspects of the plaintiff’s factum and submissions on this motion, I will set out the provisions of the statement of claim below. That pleading defines the issues, (including the bases of liability asserted against the defendants) that the plaintiff has joined in this proceeding. In my view, it is those issues that inform the determination of whether the defendants have met their respective burdens to demonstrate that there is no genuine issue that requires a trial with respect to the claims asserted by the plaintiff. The bases of liability asserted in the plaintiff’s factum for which adequate material facts have not been pleaded in the statement of claim, do not.

[15] The statement of claim states:

Claim

1. The plaintiff claims:

a) A declaration that, pursuant to an easement, right-of-way, or reciprocal access agreement entered into by the defendant, The Corporation of the City of Windsor (herein after referred to as “Windsor”) and the defendant, Home Depot Holdings Inc. (herein after referred to as “Home Depot”), as part of a site plan agreement between the same parties and registered on title to Home Depot’s land know municipally as 1925 Division Road, Being Part Lots 15 and 16, Concession 6, Sandwich East Designated as Parts 1 and 2, Plan 12R23012, Windsor PIN #01560-2595 LT, Home Depot is obligated to provide an easement for access to the plaintiff’s lands known municipally as 2025 Division Road, Being Part Lot 16, Concession 6, Sandwich East as in R819603 t/w R336503 being PIN 01560-0104 (LT);

b) A mandatory order directing Home Depot to provide the said easement for access to the plaintiff;

c) A mandatory order directing Home Depot to enter into an appropriate easement agreement as required in article S-6CD of the aforesaid site plan agreement;

d) Damages for equitable compensation consequent on Home Depot’s failure to provide and enter into the aforesaid Reciprocal Access Agreement for the provision of the aforesaid easement and access in the amount of $5,000,000;

e) Damages as against the City of Windsor in the amount of $5,000,000 for negligence and negligent misrepresentation;

f) Special damages in an amount to be particularized at trial but estimated to be $250,000;

g) Pre-judgment and post judgment interest pursuant to the Courts of Justice Act; and

h) Such further and other relief as to this Honourable Court may seem just.

2. The plaintiff is a corporation incorporated pursuant to the laws of the province of Ontario and carries on business as a land holding company for an operating business known as Joseph’s Produce. The plaintiff carries on business in the City of Windsor, in the County of Essex and elsewhere in Ontario as a fresh produce retailer.

3. The defendant, Windsor, is a municipal corporation formed pursuant to the provisions of the Municipal Act.

4. Home Depot is a corporation incorporated pursuant to the laws of Canada and carries on business as a landholding company for franchised Home Depot retail stores in Ontario and elsewhere in Canada. This defendant was, at all material times, the registered owner of certain lands known municipally as 1925 Division Road, and more particularly described as Part Lots 15 and 16, Concession 6, Sandwich East, designated as Parts 1 and 2, Plan 12R23012, Windsor.

5. On or about December 4, 2009, the plaintiff purchased and obtained a transfer of a certain parcel of land described as 2025 Division Road in the City of Windsor more particularly described in PIN 01560-0104. Before the plaintiff entered into an agreement of purchase and sale to acquire these lands, it was represented to the plaintiff by Windsor that the lands could be accessed through rights-of-way, one to the east, and one to the west. The lands to the west and the right-of-way over those lands was to be given by Home Depot. The plaintiff states, and the fact is, that without this easement and right-of-way, the subject land it was purchasing would be land locked.

6. Home Depot entered into a site plan agreement with Windsor respecting their lands at 1925 Division Road. The site plan agreement was registered on the title to those lands on July 7, 2007.

7. Pursuant to paragraph 6.1(1) of the Home Depot site plan agreement, Home Depot obligated itself to provide a right-of-way, easement or access over its lands in favour of the plaintiff’s lands in the following terms:

“Reciprocal Access Agreements – The Owner further agrees to enter into Reciprocal Access Agreements with the owners of the abutting properties municipally know as:

(a) 2025 Division Road, owner (Ila and Sanja Desai);

(b) 2225 Division Road, owner (770007 Ontario Inc.);

(c) 1790 Provincial Road, owner (Allied Systems (Canada) Company)

Notwithstanding the above, the Owner shall only be obligated to provide easements for access to the above abutting properties, if required by the owners thereof, for the passage and re-passage of motor vehicles and pedestrians over the Owner’s Internal roadways to and from the above abutting properties and the municipal roadway, including Division Road. Further, the Owner’s obligation to provide easements for access to the above noted properties shall be conditional upon the negotiation and execution of an appropriate easement agreement on terms and conditions acceptable to the Owner and the Corporation which easement agreements shall include consideration of appropriate cost sharing for the provision of existing or future mutually beneficial services including, but not limited to, access driveway underground services, traffic signals, and road improvements.”

8. On the closing of the plaintiff’s agreement of purchase and sale with the prior owners of its lands, the plaintiff paid $675,000 consideration for the purchase of said property.

9. Prior to closing, appropriate inquiries were made by the plaintiff or its agents to ensure that the reciprocal access agreements were in place. The plaintiff received representations from various officials of Windsor that these agreements were viable, in fact, in place and that the reciprocal access agreement was in full force and effect.

10. The reciprocal access agreement, easements, or right-of-way on Home Depot’s lands was for the benefit of the plaintiff’s lands at 2025 Division Road.

11. Subsequent to the purchase of the plaintiff’s lands, the plaintiff retained the services of a contractor and engineers to design and build a new retail store. The contractor began to go through the site plan approval process with Windsor for the purposes of obtaining a building permit. Substantial time, energy and money were expended to bring the proposed development to fruition. The plaintiff had various tenants committed to move into the project. These tenants, along with a retail store to be established by the plaintiff to sell produce, would generate the necessary cash flow to support the construction of the project. The store and the project were to be ready for opening before the 2013 Thanksgiving holiday, and in time for the run-up to the Christmas holidays.

12. As part of the site plan agreement process, the plaintiff and its contractor relied on the fact that there were existing agreements for access over Home Depot’s adjoining properties, and they made a request upon Windsor for a building permit. As a condition for issuing a building permit, Windsor required the plaintiff to execute a site plan agreement respecting the plaintiff’s lands. The plaintiff duly executed that site plan agreement in June 2013.

13. The plaintiff’s contractor contacted the two adjoining property owners for the purposes of getting them to enter into a reciprocal access agreement as required under the aforesaid provisions of the site plan agreements. Home Depot took the position that it was not obligated to provide such an access, in clear breach of the commitments and covenants made by them in the aforesaid site plan agreement with Windsor.

14. Unknown to the plaintiff, employees or agents of Windsor issued a letter, in breach of the aforesaid covenants contained in the aforesaid site plan agreements, purporting to relieve Home Depot of compliance with its covenant to provide an easement to the plaintiff.

15. The plaintiff pleads, and the fact is, that this purported waiver of the requirement to provide an easement was done carelessly, without regard to the plaintiff’s interests in the said easement. The plaintiff further pleads that the purported waiver was ineffective in law to discharge the plaintiff’s equitable right to the said easement. The plaintiff further pleads that the purported waiver was not approved or authorized by City Council, and for that reason, is null and void and of no force or effect.

16. As a result of Home Depot’s refusal to provide such an easement, the entire project was thrown into doubt and came to a halt. The plaintiff’s proposed tenants withdrew from the project. As a direct result of Home Depot’s refusal to provide the access, the plaintiff could no longer proceed with the project.

17. Without access to the plaintiff’s property, those lands are essentially landlocked, useless, and have no value. The plaintiff pleads that Windsor knew or ought to have known that the effect of releasing the plaintiff’s right to an easement over the subject land would sterilize the value of that land.

18. The plaintiff pleads that Home Depot is liable for all consequential damages flowing from the breach of the aforesaid covenant to provide a reciprocal access and easements and that the plaintiff has an equitable right to enforce aforesaid easement.

19. In the alternative, the plaintiff pleads that Home Depot had a duty of care to honour its commitment to provide the aforesaid access to the plaintiff, and that it acted negligently, or in the alternative intentionally, in breach of this duty of care so as to deprive the plaintiff of its right to the said easement.

20. The plaintiff pleads that Windsor had a duty of care to the plaintiff as an adjacent property owner for whose benefit the reciprocal access agreements were required, to notify the plaintiff prior to any purported waiver of the aforesaid easement. Windsor breached this duty of care and was negligent in having, or allowing, its servants, agents or employees to waive or release Home Depot from its requirement to provide the aforesaid easement.

21. The plaintiff further pleads that Winsor was in breach of the aforesaid site plan agreement entered into with the plaintiff by purporting to release the aforesaid reciprocal access easement.

22. The plaintiff therefore states that Windsor and Home Depot, or each of them, are therefore at law or equity liable to compensate the plaintiff for all damages reasonably flowing from the aforesaid breach of covenant, negligence, or negligent misrepresentation as set out above.

23. As a result of the acts or omissions of the defendants, for each of them, the plaintiff suffered the following damages:

i) The plaintiff’s lands, acquired for $675,000, have been rendered landlocked and have no value;

ii) The plaintiff’s expenditures to retain consultants, engineers and contractors to develop and design the project have been thrown away and cannot be recouped;

iii) The plaintiff has suffered economic and business losses and a loss of profit as a result of the loss of its ability to proceed with the project; and

iv) The plaintiff has suffered economic, business losses and a loss of profit as a result of the loss of opportunity or delay in opening the retail facility in 2013.

24. The plaintiff proposes that this action [be] tried in the City of Windsor and the County of Essex.

[16] Before turning to the evidence, I will review the principles applicable to the summary judgment motions brought by the defendants.

III) THE LEGAL PRINCIPLES APPLICABLE TO A MOTION FOR SUMMARY JUDGMENT

[17] Rule 20.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended, provides that:

A plaintiff may, after the defendant has delivered a statement of defence or served a notice of motion, move with supporting affidavit material or other evidence for summary judgment on all or part of the claim in the statement of claim.

[18] Rules 20.04(2)(a) and (2.1), in part, provide:

(2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence;

Powers

(2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at trial:

1. Weighing the evidence.

2. Evaluating the credibility of the deponent.

3. Drawing any reasonable inference from the evidence.

[Emphasis added.]

[19] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, Karakatsanis J. observes that the judicial determination of civil disputes must embrace processes other than a traditional trial where such processes may result in more accessible, proportional, timely and affordable modes of adjudication that yield fair and just resolutions of such disputes. Several principles emerge from Hryniak, including the following:

1. The procedure used to adjudicate a civil dispute must fit the nature of the claim. If the process is disproportionate to the nature of the dispute and the interest involved then it will not achieve a fair and just result (para. 29);

2. A genuine issue requiring a trial will not exist when the judge is able to reach a fair and just determination of an action on the merits, on a motion for summary judgment. This will occur when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result [than a trial] (para. 49);

3. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost-effective. However, a process that does not provide a judge with confidence in her conclusions can never be a proportionate method to resolve a dispute (para. 50);

4. On a summary judgment motion, the evidence need not be equivalent to that at trial, but must be such that the judge is confident that she can fairly resolve the dispute. A documentary record, particularly when supplemented by the new fact-finding tools, including ordering oral testimony [pursuant to r. 20.04(2.2) in Ontario] is often sufficient to resolve material issues fairly and justly (para. 57);

5. The standard of fairness is, therefore, not whether the procedure utilized to resolve the parties’ dispute is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute (para. 50).

6. The fact-finding powers under r. 20.04(2.1) and (2.2) are discretionary and are presumptively available to the motion judge. They “may” be exercised unless it is in the interest of justice for those powers to be exercised only at trial (para. 45);

7. In determining whether “it is in the interest of justice” that the r. 20.04(2.1) fact-finding powers only be exercised at trial, the motion judge may be required to assess the relative efficiencies of proceeding by way of summary judgment, as opposed to trial (including the cost and speed of both procedures). The determination may involve a comparison of the evidence that will be available at trial and the evidence available on the motion, as well as the opportunity to fairly evaluate that evidence. However, even when the evidence available on the motion is limited, there may be no reason to think better evidence will be available at trial (para. 58);

8. When a judge is able to fairly and justly adjudicate a claim through the use of the new fact-finding powers it will generally not be against the interest of justice to do so. What is “fair and just” turns on the nature of the issues, the nature and strength of the evidence and the correspondingly proportional procedure, in all the circumstances (para. 59);

9. In considering whether the use of the fact-finding powers accords with the “interest of justice” a judge must consider the consequences of the motion in the context of the litigation as a whole. For instance, if some of the claims against some of the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact-finding powers to grant summary judgment against a single defendant. Such partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact. Conversely, the resolution of an important claim against a key party could significantly advance access to justice, and be the most proportionate, timely and cost efficient approach (para. 60);

10. On a motion for summary judgment the judge should first determine if there is “a genuine issue requiring trial” based only on the evidence before her, without using the new fact-finding powers. If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the fact-finding powers under r. 20.04(2.1) and (2.2). She may, at her discretion use those powers provided that their use is not against the interest of justice (para. 66); and

11. While summary judgment must be granted if there is no genuine issue requiring a trial, the decision to use either the expanded fact-finding powers or to call oral evidence is discretionary, thereby giving the judge some flexibility in deciding the appropriate course of action in the context of a particular motion (para. 68).

[20] Notwithstanding the “culture shift” away from the primacy of trial and towards a proportional adjudicative process that yields a fair and just result, there will still be cases that must go to trial. Evidence by affidavit prepared by the parties’ legal counsel can obscure the affiants’ authentic voice making the judge’s task of assessing credibility and reliability difficult. Accordingly, the motion judge must take care to ensure that decontextualized affidavit and transcript evidence does not become the means by which substantial unfairness enters the procedure in a way that would not likely occur in a full trial, when the judge sees and hears it all: see Yusuf (Litigation guardian of) v. Cooley, 2014 ONSC 6501, 123 O.R. (3d) 474, at paras. 8 and 21, and Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438, at para. 44.

[21] The evidentiary principles applicable to motions for summary judgment that were developed prior to the enactment of the current provisions of r. 20.04 continue to apply. The motion judge must still take a “hard look” at the evidence to determine whether the moving party has met its onus to demonstrate that there is no genuine issue requiring a trial. Each party must still put its best evidentiary foot forward and submit cogent evidence to support or oppose the relief sought. The motion judge is entitled to assume the record contains all the evidence the parties will adduce at trial. The responding party cannot reasonably rely on the position that a genuine issue requiring a trial exists because additional supportive evidence may emerge at trial: see Kolosov v. Lowe’s Companies Inc., 2016 ONSC 1661, at para. 33, aff’d 2016 ONCA 973; Aranas v. Kolodziej, 2016 ONSC 7104, at para. 34; Mazza v. Ornge Corporate Services Inc., 2015 ONSC 7785, at paras. 48–50, aff’d 2016 ONCA 753.

[22] Summary judgment motions are decided by evidence of the facts and, if appropriate, by reasonable and permissible inferences drawn from those facts (i.e. not by speculation about the facts): see Chernet v. RBC General Insurance Company, 2017 ONCA 337, at para. 12.

[23] Failure to cross-examine on affidavits or to otherwise challenge evidence placed in the record by an adverse party may have an adverse impact on a party to a summary judgment motion: see Mazza (ONSC), at para. 51.

[24] In applying those principles after considering the evidence as a whole, and for the reasons that follow, I am satisfied that the evidentiary record on this motion adequately permits me to fairly and justly adjudicate the liability issues in this action. The available evidence allows me to:

1. Make the necessary findings of fact to determine the issue of liability for the accident; and

2. To apply the relevant legal principles to the facts, as found.

[25] In addition, summary judgment represents the most proportionate, the most expeditious and the least expensive means to achieve a fair and just determination of the bases of liability for which material facts are pleaded in support, in the statement of claim.

[26] Despite the limited number of conflicts in the available evidence, in the course of adjudicating the parties’ respective disputes, I have periodically resorted to the fact finding tools available pursuant to r. 20.04(2.1) to weigh the evidence and to draw certain reasonable inferences from the evidence. I have not used those tools to make adverse credibility findings against any of the witnesses on the motions, as it is unnecessary to do so in order to fairly and justly adjudicate the parties’ disputes. Instead, where it is necessary to resolve a conflict in the evidence by weighing the available evidence and determining the reliability of aspects of it, I will explain the manner in which I have resolved that conflict.

[27] In all the circumstances, including the nature of the claims and the document intensive nature of the evidentiary record, I conclude that resort to the available fact finding powers, when necessary to do so, accords with the interests of justice. By doing so, I am able to make the necessary findings of fact and to apply the law to those facts to arrive at a fair and just adjudication of the action on the merits. This motion was argued over the course of three days. The evidentiary record on the claims that the plaintiff has pleaded is well-developed and there is no reason to believe a superior evidentiary record would be available at trial.

[28] After considering the totality of the evidence, including the evidence that I will review below, I am satisfied that each of the defendants has met its onus to demonstrate that there is no issue that requires a trial in order to determine the pleaded bases of liability against them, in a fair and just manner. I am satisfied that the action ought to be dismissed against each of them. I reach that conclusion for the reasons below and only after considering all of the evidence adduced on the motions; the applicable legal principles; and counsels’ thoughtful submissions.

[29] In order to explain my findings above, I will now: detail the evidence adduced by the parties; summarize the parties’ positions; identify the nature of the pleaded bases of liability against each of the defendants; identify the legal principles applicable to those asserted causes of action; and thereafter, I will apply those principles to the facts that the evidence allows me to find, with confidence.

IV) THE EVIDENCE

[30] In determining the defendants’ motions I have the benefit of an extensive evidentiary record, which includes the following:

1. The affidavit of Wira Vendrasco, sworn November 18, 2016. Ms. Vendrasco served as an in-house counsel for the City, at all times relevant to the issues in this action; she was directly involved in events relevant to the issues in the action; and she engaged in efforts to facilitate negotiations related to access to the subject property over Home Depot land.

2. The affidavit of Kristen Dearlove, sworn November 25, 2016. Ms. Dearlove is a member of the law firm representing the City in this action. She deposes to:

i) aspects of the procedural history of this proceeding;

ii) aspects of the continuing RAA negotiations between the plaintiff and Home Depot, which occurred after the action was commenced; and

iii) the results of certain undertakings given at examinations for discovery.

3. The affidavit of Jacob Williams, sworn November 3, 2016. Mr. Williams is a senior real estate manager employed by a corporation “related to” the defendant, Home Depot. Through his position, he is responsible for all of Home Depot Canada Inc.’s real estate matters. Beginning in January 2014, he was directly involved in the negotiation of the RAA between Home Depot and the plaintiff.

4. The affidavit of Carol Wood-Kermath, sworn November 30, 2016. Ms. Wood-Kermath is a legal assistant employed by the firm representing Home Depot in this action. She deposes to certain responses provided by representatives of the non-party Rosati to undertakings given by its in-house counsel, Kathryn Hengl, at her examination for discovery on June 9, 2015.

5. The affidavit of Wayne Joseph, sworn May 4, 2017. In his affidavit, Mr. Joseph describes himself as an officer, director and employee of the plaintiff corporation. He deposes to the nature of the plaintiff’s business; certain circumstances surrounding the plaintiff’s acquisition of the subject property; the nature of and certain circumstances surrounding the plaintiff’s intended development of the subject property; the plaintiff’s efforts in 2013 to secure access to the subject property over Home Depot land; the cessation of the plaintiff’s development of the property; and, the nature of the losses the plaintiff asserts that it has suffered as a result of the defendants’ alleged misconduct.

6. The affidavit of Eric Florjancic, an associate with the plaintiff’s counsel’s firm, sworn May 9, 2017, in which he summarizes various aspects of the documentation produced by the parties in the context of this action. He also offers his summary of aspects of the evidence given by representatives of the City and Home Depot, at their respective examinations for discovery.

7. The affidavit of Frank Saroli sworn May 9, 2017. Mr. Saroli is a solicitor who acted for the plaintiff in its negotiation of the RAA with Home Depot.

8. Excerpts from the transcript of the examination for discovery of Wira Vendrasco conducted on October 16, 2014.

9. Excerpts from the transcript of the joint examination for discovery of Wayne Joseph and Brad Joseph conducted on October 15, 2014 (representatives of the plaintiff).

10. Excerpts from the transcript of the examination for discovery of Jacob Williams (representative of Home Depot) conducted on November 5, 2014.

11. The complete transcript of the examination for discovery of non-party Kathryn Hengl (Rosati’s in-house counsel) conducted on June 9, 2015.

12. The complete transcript of the cross-examination of Jacob Williams conducted on November 1, 2017.

13. The complete transcript of the cross-examination of Wayne Joseph conducted on November 13, 2017.

14. The complete transcript of the cross-examination of Wira Vendrasco conducted on November 14, 2017.

15. The complete transcript of the cross-examination of Frank Saroli conducted on November 14, 2017.

16. In excess of 150 documents collectively totalling over 1,000 pages in length and appended as exhibits to the various affidavits set out above.

[31] Despite its voluminous nature, there are relatively few material conflicts within the evidentiary record. Instead, the parties principally differ on the factual findings that ought to be made on the available evidence and the legal conclusions that flow therefrom. In order to fully appreciate the parties’ respective positions in that regard (and the context in which their positions are advanced), a review of the evidence is warranted. I will not systematically detail the evidence on a witness by witness basis. Rather, I will review aspects of the available evidence that touch on the factual matters relevant to the issues in the action, generally doing so in a chronological manner.

(a) The Configuration of the Real Properties At Issue

[32] The subject property, known municipally as 2025 Division Road, Windsor, Ontario, is situated in a commercially zoned area near the Windsor Airport. It abuts real property known municipally as 1925 Division Road, owned by Home Depot, upon which a “big-box” store development is located. The north sides of both the subject property and Home Depot’s property front Division Road (an east-west municipal road), with the subject property situated to the north of a portion of Home Depot’s property. A large commercial plaza is situated to the east of Home Depot’s property, which was developed and formerly owned by 1700734 Ontario Inc. carrying on business as ROCK Developments. The plaza land is now owned by Skyline Retail Real Estate Holdings Inc. (“Skyline”).

[33] Attached as Schedule ‘A’ to these reasons is a Reference Plan showing the Home Depot property and the subject property, taken from Home Depot’s site plan control agreement with the City (appended as Exhibit No. 3 to Mr. Florjancic’s affidavit, sworn May 9, 2017). The subject property appears as the relatively graphic-free area in the top right of the diagram, with “Lot 16” written across it. Although the ROCK Development Plaza is not depicted in the Plan, it lies to the east of the Home Depot property set out in the Reference Plan.

[34] A series of internal roadways constructed by Home Depot connect the parking areas of Home Depot and the plaza. An access driveway constructed by Home Depot and situated to the immediate west of the subject property, connects Division Road to the internal roadways and parking areas on Home Depot’s property. A second access driveway connecting both the plaza and Home Depot’s internal roadways with Division Road lies to the immediate east of the subject property.

[35] The intersection between the western Home Depot access driveway and Division Road is controlled by a set of traffic signals. The eastern access driveway is controlled by a “right turn only in”/ “right turn only out” system, with a stop sign for exiting driveway traffic.

[36] Direct access from Division Road to the subject property is problematic from a planning and traffic control flow perspective, owing to the configuration of the relevant properties and the presence of the signalled intersection. As a matter of planning and site plan control, the City has consistently held a preference that vehicular access to the subject property be facilitated through access agreements between the owner of the subject property and the owners of commercial properties abutting it, instead of an access driveway directly connecting the subject property with Division Road.

(b) The Site Plan Control Agreement (SPCA) between the City and Home Depot

(i) The City’s Site Plan Approval Process

[37] Prior to reviewing the terms of the SPCA between the City and Home Depot, I will review the evidence related to the City’s site plan approval process, in general.

[38] Pursuant to City of Windsor By-law 1-2004, all lands in the City of Windsor are designated as “site plan control areas” and therefore, are subject to the site plan control approval process established pursuant to s. 41 of the Planning Act, R.S.O. 1990, c. P.13 (“Planning Act”). Through that process, the City exercises some control over the manner in which commercial properties are developed. Pursuant to the Planning Act, applicants are required to obtain site plan control approval from the City Planner (or a designate to whom City Council has delegated approval authority pursuant to City By-law 11275) and to enter into site plan control agreements. Since October 29, 2007, site plan control applicants have been required by municipal by-law, to consult with City Planners prior to submitting an application for site plan control approval. During the pre-application consultation phase, Planners specify the documents that the applicant must submit as part of the approval process, including plans, drawings, and studies.

[39] After a formal application for approval of a site plan is submitted, the City’s Planning Department circulates it to various City Departments and other agencies for review and comment. After receipt of all such commentary, the City’s Planning Department prepares a report and advises the applicant about the City’s proposed conditions for site plan control approval. Once the Planning Department approves a site plan control application, the City’s in-house Legal Department prepares a Site Plan Control Agreement for execution by the applicant and the City. After the agreement is executed and any other pre-requisites for the issuance of a building permit have been satisfied, the applicant’s development proceeds.

(ii) Home Depot’s Application for Site Plan Control Approval

[40] Ms. Vendrasco indicates that in 2007, Home Depot applied to the City for site plan control approval with respect to its proposal to develop 1925 Division Road for use as a “big box” retail store. In its application, Home Depot proposed to construct a stand-alone retail store (Home Depot) with three proposed access points to Division Road: an “all-turns signalled access point” [the western access driveway]; a non-signalled “right turn only access in/right turn only access out” [the eastern access driveway]; and a “truck only access driveway”. The proposed retail store measured 121,667 square feet together with an additional 18,170 square foot outdoor garden centre and a 10,000 square foot outdoor seasonal centre. The proposed parking areas were comprised of 626 motor vehicle parking spaces and three loading spaces.

[41] Consistent with the site plan approval process set out above, Home Depot was required to meet with the City’s Site Plan Review Committee to identify the requisite conditions of site plan approval. At a preliminary meeting held with that Committee on January 24, 2007, Home Depot was advised that, among other things, the Committee recommended that access agreements would be pursued with the owners of abutting properties including 2025 Division Road (the subject property).

[42] Eventually, Home Depot’s application for site plan approval was forwarded to various City Departments for review and comment. The issue of access to the site’s abutting properties including the subject property, was identified in that process. Specifically, the landscape architect in the City’s Building and Development Department made the following recommendations, among others:

Recommend that a Special Provision clause be included in the Site Plan’s Control Agreement, requiring the Owner to enter into joint internal driveway agreements and/or easements with the adjacent property owners to the east, west and south, at such time as those properties are redeveloped. This would permit pedestrian and vehicular movements between the above-mentioned sites without adding traffic to Division Road or adding additional distance and complexity to otherwise short journeys. See Official Plan Section 8.7.2.2 “Council will ensure that the design of extensive areas of redevelopment achieves the following: (d) provides transportation links to adjacent areas.”

Recommend that the Owner register an easement to permit internal driveway access over the subject lands for the benefit of the Owner of 2025 Division Road.

[Emphasis added.]

[43] In addition, the City’s Engineering and Corporate Projects Department recommended that Home Depot be required to enter into a reciprocal access and service agreements with the owners of abutting properties.

[44] The City’s “Operation’s Department – Traffic” provided the following comments, among others:

Reciprocal Access to Adjacent Sites:

Transportation Planning reminds the developer that lands to the South of this development [not the subject property]may yet develop resulting in the two main North South aisles becoming more important in the overall site plan. Transportation Planning will require that reciprocal access and parking be granted from these southern lands to the northern lands (Home Depot) as well as to the ROCK Developments’ lands to the immediate east of the Home Depot site.

Transportation Planning requires that the applicant pursue reciprocal access agreements for the following adjacent properties:

2025 Division Road

2225 Division Road

Reciprocal access to 2025 Division will be required. While a site plan application was made for this site, it appears to be now inactive [and] no building will take place. Upon restarting the process for this application, we will be requesting that this development gain its sole access via the adjacent Home Depot site. Likewise the cost of the signal to Division and any other access should be shared between Home Depot and 2025 Division. We ask that the applicant contact the adjacent developer to have an agreement written up so that the costs for that signal and improvements can be shared.

[Emphasis added.]

[45] After receiving and considering all of the comments and recommendations of the various responding City Departments, including those above, on February 28, 2007, the City’s Site Plan Review Committee recommended approval of Home Depot’s application for site plan control and further recommended that Home Depot enter into a Site Plan Control Agreement with the City, in which the following provisions, among others, were included:

4. Prior to the issuance of a construction permit the Owner [Home Depot] agrees to provide a reciprocal access and reciprocal servicing agreement with 4115 Walker Road [owner ROCK Developments] to the satisfaction of the corporation’s [City’s] solicitor.

5. Reciprocal Access Agreements – the Owner further agrees to enter into Reciprocal Access Agreements with the owners of the abutting properties municipally known as:

a) 2025 Division Road, owner (Ila and Sanjay Desai) [the subject property];

b) 2225 Division Road, owner (770007 Ontario Inc.);

c) 1790 Provincial Road, owner (Allied Systems (Canada) Company).

Notwithstanding the above, the Owner shall only be obligated to provide easements for access to the above abutting properties, if required by the owners thereof. Further, the Owner’s obligation to provide easements for access to the above noted properties shall be conditional upon the negotiation and execution of an appropriate easement agreement on terms and conditions acceptable to the Owner [Home Depot] and the Corporation [the City] which easement agreements shall include consideration of appropriate cost sharing for the provision of existing or future mutually beneficial services including, but not limited to, access driveway underground services, traffic signals and road improvements.

[Emphasis added.]

[46] Home Depot received site plan approval on May 30, 2007.

[47] Consistent with the recommendations of the Site Plan Control Review Committee, the City and Home Depot executed the SPCA in June 2007, which was registered on title to Home Depot’s land on July 5, 2007. Consistent with the February 28, 2007 recommendations of the City’s Site Plan Review Committee, the SPCA includes the following provisions, with respect to reciprocal access and easement agreements:

S-6.(1) Reciprocal Access Agreements – The Owner [Home Depot] further agrees to enter into Reciprocal Access Agreements with the owners of the abutting properties municipally known as:

(a) 2025 Division Road, owner (Ila and Sanjay Desai) [the subject property];

(b) . . .

(c) . . .

Notwithstanding the above, the Owner [Home Depot] shall only be obligated to provide easements for access to the above abutting properties, if required by the owners thereof, for the passage and re-passage of motor vehicles and pedestrians over the Owner’s internal roadways to and from the above abutting properties and the municipal roadway, including Division Road. Further, the Owner’s obligation to provide easements for access to the above noted properties shall be conditional upon the negotiation and execution of an appropriate easement agreement on terms and conditions acceptable to the Owner and the Corporation which easement agreements shall include consideration of appropriate cost sharing for the provision of existing or future mutually beneficial services including, but not limited to, access driveway underground services, traffic signals and road improvements.

[Emphasis added.]

[48] A similar provision was included in a site plan control agreement made between the City and ROCK Developments, in May 2007.

[49] According to Ms. Vendrasco’s uncontradicted evidence, section S-6.(1) of the SPCA was intended to benefit the properties abutting Home Depot’s property, including the subject property, by giving the owners of those properties an opportunity to negotiate access agreements to their land through a previously developed property (in this case owned by Home Depot). The provision also ensures the orderly development of the overall site area.

[50] Ms. Vendrasco further testifies that pursuant to section S-1 of the SPCA, at the time a construction permit was issued to Home Depot, it was obligated to deposit a specified form of security with the City to secure its performance of an exhaustive list of certain identified obligations that it had pursuant to the SPCA. Home Depot’s performance of its obligations with respect to “reciprocal access agreements”, pursuant to section S-6.(1) of the SPCA were not so secured.

[51] Ms. Vendrasco testified during her cross-examination that the “perform and security provision” of the SPCA was not connected, in any way, to any obligations that Home Depot had with respect to reciprocal access pursuant to the SPCA. Sections S-1 (performance security) and S-2 (maintenance security related solely to landscaping) of Home Depot’s SPCA are set out in Schedule ‘B’ to these reasons. For reasons that will be set out later below, it is important to observe that neither section required Home Depot to deposit any form of performance security with the City in relation to any obligation it had pursuant to section S-6.(1) of the SPCA.

[52] In cross-examination, Ms. Vendrasco rejected the proposition that through its negotiation and execution of its SPCA with Home Depot, the City intended to “bargain away” the plaintiff’s right (or that of its predecessor in title) to unrestricted access to the property directly from Division Road in favour of subjecting the owner’s right of access to the subject property “to an agreement to agree” with Home Depot. Instead, she testifies that the City’s planning preference was to limit access points along that particular portion of Division Road, in large part, because traffic signals were being installed at the westerly access driveway to the Home Depot property, which was anticipated to eventually serve as the main entry point to the plaintiff’s property, as well. As a result, it did not seem appropriate to have additional access points along that portion of Division Road.

[53] She further testifies that had the plaintiff or the plaintiff’s predecessor in title insisted on direct access from Division Road, that request would have been reviewed by the City. As I will set out further below, there is no evidence that either the plaintiff (or the plaintiff’s predecessor in title) insisted on that method of access to the subject property. To the contrary, the evidence establishes that the plaintiff was completely adverse to direct access to the subject property from Division Road, in 2013.

[54] In addition to the SPCA, as part of Home Depot’s development of 1925 Division Road (and in accordance with section S-7 of the SPCA), the City and Home Depot entered into a “servicing agreement” that primarily dealt with improvements that Home Depot intended to make on, or adjacent to, Division Road as part of its development of the site, including the addition of ditch enclosures, curbs, gutters, sidewalks and traffic signals. The subject matter of the servicing agreement did not include any provisions relating to access or easements in favour of Home Depot’s abutting properties. Home Depot’s obligations under the servicing agreement were subject to distinct performance security specified in that agreement.

[55] The distinction between Home Depot’s independent and respective obligations under the SPCA and the servicing agreement assists in appreciating what Ms. Vendrasco explains as erroneous enforcement efforts that were undertaken by the City in 2008 and 2009, in relation to Home Depot’s asserted non-compliance with section S-6.(1) of the SPCA, which I will review in more detail below.

(iii) The City’s Erroneous Attempts to Enforce Section S-6.(1) of the SPCA

[56] Pursuant to the servicing agreement, Home Depot undertook the construction and improvement of certain roadways (including Division Road). LEA Consulting Limited (“LEA”) acted as an off-site project manager in that regard, and the firm of Zelinka Priamo Ltd. acted as Home Depot’s site development coordinator, in relation to the servicing of the site.

[57] According to Ms. Vendrasco’s, the City’s Public Works file relating to Home Depot’s roadway construction discloses that when the project was near total completion by October 2008, LEA requested that the Public Works Department “sign off on the project”, with a view to ultimately securing the release of the performance security held by the City pursuant to the servicing agreement.

[58] Subsequent to an inspection of the Home Depot roadway works on September 29, 2008, Adriano Costa of LEA corresponded with Jane He, an acting engineer with the City’s Public Works Department, to address an issue that ostensibly arose during the inspection. Specifically, the City raised the lack of “curb cuts” on Division Road that would facilitate direct access to the subject property (then a vacant lot) from Division Road. In his correspondence, Mr. Costa referred Ms. He to the City’s Site Plan Review Committee’s comments dated February 28, 2007, which indicated that in the event that a development process was restarted with respect to 2025 Division Road, the City would request that such development gain sole access via the adjacent Home Depot site (i.e. not directly from Division Road). Ms. He responded through e-mail correspondence and advised him that the options available to Home Depot were as follows:

1. Since development on 2025 Division Road [the subject property] remained inactive at that time, the site would remain the same and two existing granular driveways leading directly to Division Road would be kept as access to the property; or

2. Home Depot would have to take a proactive approach to reach a reciprocal access agreement with the owner of 2025 Division Road [i.e. the plaintiff’s predecessor in title] as required in the SPCA. If that was the case, curb cuts would not be required on Division Road to accommodate direct access to 2025 Division Road (the subject property).

[59] In her correspondence, Ms. He further advised Mr. Costa that the City preferred Option 2 above, but if an agreement could not be reached, Option 1 would have to be implemented.

[60] Following Ms. He’s correspondence, City Engineer and “Manager of Rights-of-Way”, Wade Bondy, forwarded correspondence to LEA Consulting, dated October 20, 2008, identifying as an outstanding deficiency the following: “Home Depot to either enter into an agreement with the property owner at 2025 Division or install 2 access drives to the said property to return to predevelopment access.”

[61] Through that correspondence, the City also agreed that “the maintenance period” for the improvement work performed by Home Depot on Division Road (pursuant to the servicing agreement) would commence September 29, 2008 and last for a minimum one year period. The terms of the SPCA are not expressly referenced in the foregoing exchange.

[62] Notably, the City’s September 2008 on-site inspection of the roadwork done by Home Depot and the foregoing correspondence exchange, both to and from the City, took place in the context of Home Depot’s efforts to receive the City’s “sign-off” of its obligations under the servicing agreement.

[63] Ms. Vendrasco, who was employed by the City as in-house legal counsel at the time of the foregoing correspondence exchange, deposes in her affidavit and she further testifies in cross-examination that, in her view, Ms. He and Mr. Bondy erroneously believed that the issue of access to 2025 Division Road required resolution before the City’s final “sign-off” on Home Depot’s roadway construction. She explains that the latter work was undertaken pursuant to Home Depot’s servicing agreement, which did not contain any provisions related to access accommodation for properties abutting Home Depot’s property. She further deposes that the position adopted by Ms. He and Mr. Bondy was inconsistent with the terms expressed in the RAA provision of the SPCA (section S-6.(1)), which required Home Depot, upon request of the owner of 2025 Division Road, to negotiate an access agreement with that owner, conditional on terms acceptable to Home Depot including a consideration of appropriate cost sharing between them.

[64] The evidence does not disclose that Home Depot took further action with respect to either of the options identified by Ms. He or Mr. Bondy during the one-year maintenance period (as set out in the servicing agreement) that followed September 29, 2008. Nonetheless, in an internal City memorandum dated January 26, 2010 from the City’s Manager of Inspections, Jim Boscariol, to Janis Bjorkquist of the Office of the City Solicitor, he advises that Inspector Barry Suszek attended the Home Depot site on January 25, 2010, and he states further, “Please be informed that the Site Plan Control Agreement is in compliance.” This document was adduced in evidence by the plaintiff, through Mr. Florjancic’s affidavit. The impugned RAA provision is contained in the SPCA referred to by Mr. Boscariol.

[65] After the expiration of the one-year maintenance period under the servicing agreement, Mr. Bondy wrote to Mr. Costa on November 20, 2009 and, under a “re-line” entitled “Division Road at Home Depot – Servicing Agreement”, advised him that the City would hold back $20,000 from a letter of credit in the amount of $101,250, which Home Depot had deposited with the City to secure performance of its obligations under the servicing agreement (not the SPCA), for the following reason:

. . . In lieu of performance to entering into the reciprocal access agreement with the property at 2025 Division as identified in the site plan control agreement . . .

[Emphasis added.]

[66] In his November 20, 2009 correspondence, Mr. Bondy further states:

By copy of this memo, the appropriate personnel are advised that the municipality hereby assumes the above noted Development, relieving the Developer of any future maintenance requirements. Completion of the requirements of the Development Agreement will be charged to the municipality and performed with the securities retained.

[67] In her evidence, Ms. Vendrasco testifies that, in her view, Mr. Bondy’s November 20, 2009 correspondence was “the product of confusion” within the Public Works Department, and particularly in its interpretation of Home Depot’s contractual obligations related to the development. She explains that Home Depot’s obligations with respect to the development were specified in two distinct agreements: the SPCA and the servicing agreement. The letter of credit referenced in Mr. Bondy’s November 20, 2009 correspondence related to the servicing agreement, the subject matter of which did not include an access agreement in respect of the subject property. Additionally, the performance security required by the SPCA did not extend to secure Home Depot’s obligation to enter into a RAA, if required, with the owner of the subject property.

[68] She further testifies that through his correspondence dated November 20, 2009, Mr. Bondy purported to amend a Site Plan Control Agreement registered on title by relieving the developer [Home Depot] of whatever obligations it had in relation to entering into reciprocal access/easement agreements with owners of abutting properties (including the subject property), based on what Ms. Vendrasco describes as his erroneous misunderstanding of the terms of the SPCA. Further, as a consequence of doing so, Mr. Bondy purported to withhold a portion of a form of security that was deposited in relation to Home Depot’s performance of an entirely different agreement related to servicing the developed area, in circumstances where there was no contractual authority permitting the City to hold back any form of security in order to enforce section S-6.(1) of the SPCA, even under the provisions of the SPCA, itself.

[69] As will be set out more fully below, in June 2013, while engaged in preliminary access discussions with the plaintiff’s consultant (Rosati), Home Depot temporarily and erroneously purported to rely on Mr. Bondy’s November 20, 2009 correspondence, in order to resile from negotiating the terms of a RAA with the plaintiff.

[70] Eventually, Mr. Bondy’s erroneous enforcement action was rectified. In response to a request by correspondence dated June 29, 2010 from Home Depot’s site development coordinator, Jonathan Rodger (of the firm of Zelinka Priamo Ltd.), by correspondence dated July 6, 2010, the City ultimately returned the remaining $20,000 from the letter of credit to the issuing financial institution for cancellation.

(iv) The City’s November 20, 2009 Correspondence Had No Legal Effect On Any Rights or Obligations Created by Section S-6.(1) of the SPCA

[71] In the context of this action, all parties agree that Mr. Bondy as a City engineer did not have the power to amend the terms of the SPCA, which was registered on title, through simple correspondence. In that regard, the plaintiff pleads, at paragraphs 14 and 15 of its Statement of Claim as follows:

Unknown to the plaintiff, employees or agents of Windsor [the City] issued a letter, in breach of the aforesaid covenants contained in the aforesaid site plan agreements, purporting to relieve Home Depot of compliance with its covenant to provide an easement to the plaintiff.

The plaintiff pleads, and the fact is, that this purported waiver of the requirement to provide an easement was done carelessly, without regard to the plaintiff’s interests in the said easement. The plaintiff further pleads that the purported waiver was ineffective in law to discharge the plaintiff’s equitable right to the said easement. The plaintiff further pleads that the purported waiver was not approved or authorized by City Council, and for that reason, is null and void and of no force or effect.

[Emphasis added.]

[72] The defendants agree with the plaintiff’s assertion that as a matter of law, the November 20, 2009 correspondence could not relieve Home Depot of whatever obligations it had under the SPCA. In that regard, the City submits and I accept, that the provisions of the Planning Act designate City Council as the approval authority in the case of site plan control and as a result, powers related to site plan control (including amending a site plan control agreement) can only be exercised by Council or its designate. Mr. Bondy was never such a designate, at any time. Accordingly, the City states that he did not have the power or lawful authority to amend the SPCA. Similarly, Home Depot accepts, in the context of this action, that the nature of its obligations under the SPCA was never lawfully affected by the City’s November 20, 2009 correspondence.

[73] Ms. Vendrasco’s uncontradicted evidence on that point, establishes that in November 2009, members of the City’s Public Works Department did not have the authority to amend a site plan control agreement nor could such an agreement be amended by correspondence relating to roadway construction issues under a separate servicing agreement. Instead, a site plan control agreement could only be amended by the authorization of the City Planner, as council’s designate. In this instance, the City Planner did not authorize any amendments to the Home Depot SPCA and accordingly, it was not so amended through agreement with the City. At all times, the provisions of the SPCA remained unaffected by the City’s November 20, 2009 correspondence.

(v) There is No Evidence that the Plaintiff’s Predecessor in Title Sought to Negotiate an RAA with Home Depot

[74] There is no evidence that any negotiations transpired between Home Depot and the plaintiff’s predecessor in title (to the subject property) with respect to access, an access agreement, or at all. Similarly, there is no evidence that the plaintiff’s predecessor in title attempted to develop the subject property or that it notified Home Depot that it “required” access to the property, as contemplated by the terms of the SPCA, or that it sought access to the subject property over Home Depot’s land, at all.

(vi) The Plaintiff’s Purchase of the Subject Property in December 2009

[75] In his affidavit sworn May 4, 2017, Wayne Joseph (who varyingly describes himself as: “an officer, director and employee” of the plaintiff corporation, in his affidavit; “an advisor” to the plaintiff, in his examination for discovery; and as “an owner” of the plaintiff, in his cross-examination) deposes to, among other things, the nature of the plaintiff’s business and its acquisition of the property in 2009. He describes the plaintiff corporation as a family owned and operated business that operates retail produce stores at three distinct locations in Windsor, including a South Windsor location that has been in operation since July 2015 (at a site other than the subject property).

[76] Prior to 2009, the plaintiff operated retail produce stores at two distinct locations in the east and west ends of the City of Windsor. The plaintiff’s business model at both locations involves partnering with two other businesses that lease space from it: namely, “Mr. Meats” and “Sunrise Bakery”. The nature of those businesses compliments the plaintiff’s business and results in increased consumer traffic, which in turn, has a positive impact on the plaintiff’s revenue. The corresponding rental income helps the plaintiff to fund the expenses associated with each location.

[77] According to the evidence given by Wayne Joseph and Brad Joseph at their joint examination for discovery, the plaintiff contracted to purchase 2025 Division Road in November 2009, for a purchase price of $675,000 and the transaction ultimately closed in December of that year. The plaintiff acquired the subject property, which consisted of vacant land that was commercially zoned, with the intention of eventually developing it into a third fresh produce retail location in South Windsor.

[78] At paragraph 6 of his affidavit, Mr. Wayne Joseph confirms that at the time the plaintiff purchased the subject property, it was essentially landlocked. He further states that before the plaintiff entered into the agreement of purchase and sale with respect to the subject property, it received representations that the land could be accessed through rights-of-way to the east and west of the subject property. At paragraph 10 of his affidavit, Mr. Joseph deposes that prior to closing the purchase of the subject property, the plaintiff made “appropriate” inquiries, including through its solicitor acting on the purchase transaction, to ensure that the right to reciprocal access agreements were registered on title and were available to benefit the subject property. He also deposes that when the plaintiff ultimately entered into its own site plan agreement with the City in 2013, it “relied on the fact that there were existing agreements for access over the two adjoining properties.”

[79] Elsewhere in his evidence, Mr. Joseph acknowledges that at the time the plaintiff’s purchase of the subject property closed, the plaintiff was aware of the need to negotiate access to the subject property with both Home Depot and ROCK Developments. In that regard, on December 3, 2009, Brad Joseph, the plaintiff’s vice-president and co-owner, executed a purchaser’s acknowledgement on the plaintiff’s behalf (directed to the plaintiff’s transactional counsel) that includes the following provision, among others:

9. You have advised that lands surrounding the subject property have been developed by Home Depot and in conjunction with said development the following probable things which will arise after closing and before a development can be approved by the City:

a) the City will probably not allow a separate access off Division Road to the property.

b) the Site Plan Agreement negotiated with Home Depot requires that Home Depot afford the subject property a right of access and egress from their property conditional on:

i) a reciprocal access and egress agreement to be negotiated between the parties including the City of Windsor;

ii) maintenance and repair considerations in the future;

iii) contribution from yourselves as to improvements already made by Home Depot to facilities which will benefit your property.

[Emphasis added.]

[80] Paragraph 10 of the purchaser’s acknowledgement confirms that the agreement of purchase and sale was provided to the plaintiff’s transactional solicitor on November 30, 2009, after the requisition date set out therein had passed. It further states that the issues raised in the balance of the acknowledgement were, from the plaintiff’s perspective, “somewhat expected and therefore, not something which would stop [the plaintiff] from proceeding to close the transaction”.

[81] Paragraph 11 of the purchaser’s acknowledgement confirms that the plaintiff advised its solicitors that since the property was vacant land in a commercial area within the City of Windsor, no other searches were required with the Municipality (including building, zoning, planning, planning compliance, public works, etc.) nor any other governmental agency, whatsoever.

[82] In cross-examination, Wayne Joseph testifies that at the time the purchase closed, he understood the nature of “an access agreement”. He also understood that an access agreement with Home Depot had to be fulfilled with respect to the subject property and it remained to be negotiated.

[83] In cross-examination, Mr. Joseph clarified that the “representations” that the subject property was “accessible” through two “rights-of-way”, to which he deposed to in his affidavit, were, in fact, made by the plaintiff’s transactional lawyer acting on the purchase. He explained that the plaintiff’s “appropriate inquiries” about access, to which he deposed in his affidavit, were limited to the plaintiff’s transactional counsel’s efforts to confirm that the Home Depot and ROCK Developments site plan control agreements were registered on title, respectively.

[84] During his examination for discovery, Wayne Joseph testified that prior to its purchase of the subject property, the plaintiff did not receive advice or representations from any source (including the City) that it may be able to obtain access to the subject property directly from Division Road. He also deposed that there were no driveways connecting Division Road and the subject property at that time the plaintiff purchased it, and he understood that access to the subject property would have to be accommodated over Home Depot’s property.

(vii) The Plaintiff’s Efforts to Develop the Subject Property

[85] In 2011, the plaintiff applied for site plan control approval with respect to a proposed development of the subject property. Its application was eventually approved, but owing to its own financial constraints, the plaintiff did not proceed with its development at that time nor did it enter into a site plan control agreement with the City. Further, an access agreement was not negotiated with Home Depot nor was Home Depot contacted about access, at that time.

[86] In late 2012, the plaintiff retained Rosati to assist in its development of the subject property. Eventually, through correspondence to the plaintiff dated November 13, 2012, Denis Gauthier (Rosati’s Vice President of Project Development) and Tony Rosati, (Rosati’s Co-Owner) confirmed the scope of the services that Rosati would provide to the plaintiff regarding the design, engineering, and construction of a commercial retail facility at the subject property. The scope of design included a 15,000 square foot facility with 10,000 square feet devoted to Joseph’s Produce Market and 5,000 square feet devoted to a retail space for Mr. Meats. Sunrise Bakery was not referenced.

[87] The issue of “reciprocal access agreements” was also addressed in Rosati’s correspondence. Specifically, the plaintiff was advised that reciprocal access agreements had not been registered with respect to 2025 Division Road (the subject property) because that property had not yet been developed. Further, under a heading entitled “Breakdown of the Agreements”, at pp. 2 - 3 of their correspondence, Mr. Gauthier and Mr. Rosati wrote:

Home Depot – The Home Depot Site Plan Agreement registered as CE281048 pm July 5, 2007, identifies that the owner, Home Depot Holdings Inc., agrees to enter into a reciprocal access agreement with the owner of 2025 Division Road [and two others] but is only obligated to provide easements for access to their properties for passage and re-passage for vehicles and pedestrians to and from the municipal road, including Division Road.

The easements are to be on terms acceptable to Home Depot and they “shall include consideration of appropriate cost sharing for the provision of existing or future mutually beneficial services including, but not limited to, access driveway, underground services, traffic signals and road improvements.”

4115 Walker Road Plaza – The site plan agreement for 1700734 Ontario Inc. [Rocco Tulio], 4115 Walker Road, provides similar language in that the owner agrees to enter into Reciprocal Access Agreements with various owners of abutting properties which include 2025 Division Road, obligating Owner to provide easements for access to the abutting properties on terms acceptable to the owner and “shall include consideration of appropriate cost sharing for the provision of existing or future mutually beneficial services including, but not limited to, access driveway, underground services, traffic signals, and road improvements.”

In Summary

It will not be the City that stipulates the cost sharing but rather Home Depot and 1700734 Ontario Inc. There is no mention of a set cost-sharing formula, therefore you may be at the liberty of the Owners. However, when we get to this point, we would try and obtain the costs from the City of Windsor to ensure you are treated fairly.

[Emphasis added.]

[88] At the joint examination for discovery of Brad and Wayne Joseph, Brad Joseph, confirmed that when he read the foregoing correspondence he understood that easements for access had to be negotiated on terms that were acceptable to Home Depot and to 1700734 Ontario Inc., and the anticipated agreements were required to include consideration of appropriate cost sharing for the provision of existing or future mutually beneficial services. During their joint examination for discovery, both Brad Joseph and Wayne Joseph confirmed that the plaintiff, itself, did not attempt to directly engage Home Depot in negotiations for an RAA. Instead, it relied exclusively on Rosati to initiate, conduct and conclude such negotiations on its behalf, and on its instructions. Brad Joseph anticipated that a “back and forth negotiation” of the terms of an RAA, would occur between the plaintiff (through Rosati) and Home Depot.

[89] In his affidavit, Wayne Joseph deposes that at the time the plaintiff hired Rosati to design and build its new store, Mr. Joseph expected the store to be open to the public for business by the 2013 Thanksgiving and Christmas seasons, which he described as the plaintiff’s most profitable time of the year.

[90] Evidence adduced from Rosati in the form of both Ms. Hengl’s testimony at her examination for discovery and Rosati’s responses to undertakings given therein, indicates that it estimated that it would take approximately four to five months to build the plaintiff’s proposed facility on the subject property and an additional two months would be required to negotiate reciprocal access agreements with Home Depot and ROCK Developments. The two month estimate was developed based on Rosati’s “past experience with access agreements”. However, at her examination for discovery Ms. Hengl clarified that generally, Rosati did not negotiate complex access agreements for its clients, but instead referred them to their own lawyers to do so. In May 2013, Ms. Hengl wrote an internal e-mail message to the other members of Rosati who were involved in the plaintiff’s proposed development, in which she suggested that the plaintiff should be directed to its own counsel to negotiate the terms of the reciprocal access agreement with Home Depot. Both Brad Joseph and Wayne Joseph deny receiving such advice from Rosati.

[91] Wayne Joseph testified in cross-examination that he did not know how long it normally takes to negotiate an access agreement and he did not discuss that issue with Rosati, at all. To the contrary, he testifies that members of Rosati did not explain to the plaintiff the timing and process involved in the anticipated access agreement negotiations with Home Depot. However, in response to an undertaking given on Ms. Hengl’s examination for discovery, Rosati states that the two month estimate to negotiate an RAA was communicated to the plaintiff.

[92] Ms. Hengl testifies that in her capacity as Rosati’s corporate counsel, she would have been responsible for ensuring that the requisite reciprocal access agreements were negotiated as part of the plaintiff’s project. During her tenure with Rosati, Ms. Hengl has been involved in many commercial developments and she has regularly dealt with access and easement issues. In her experience, negotiations for any required easements or access typically occur during the site planning process (once the client makes a decision with respect to the final building design) and prior to the construction phase of the project. In this instance, the plaintiff approved Rosati’s final building design in February 2013, and with that, Rosati engaged the City’s site plan approval process on its behalf.

[93] According to Ms. Hengl, during a pre-consultation meeting concerning the plaintiff’s proposed development on February 26, 2013, Rosati made inquiries of City representatives concerning the reciprocal access agreements contemplated by the site plan control agreements between the City and Home Depot and the City and ROCK Developments, respectively. She states that in response and without further explanation, Don Wilson, the former Chair of the Site Plan Review Committee asked members of the Rosati team to refrain from dealing with access issues until a site plan control agreement was reached between the City and the plaintiff and subsequently approved.

[94] That aspect of Ms. Hengl’s evidence conflicts with Ms. Vendrasco’s affidavit evidence. Specifically, Ms. Vendrasco deposes that she was advised by Mr. Wilson and believes that he did not attend the site plan pre-consultation meeting held with respect to the plaintiff’s development and further, that if he had attended he would not have asked Rosati to refrain from dealing with access. Ms. Vendrasco explains that, contextually, in 2013, Mr. Wilson was the City’s Manager of Development Applications and as such, he was no longer involved with negotiating or developing site plan control agreements. Instead, site plan control agreements were dealt with by the City’s Manager of Urban Design (Neil Robertson) and the City’s Site Plan Approval Officer and its then current Chair of its Site Plan Review Committee, John Revell. Mr. Wilson advised Ms. Vendrasco that he did have some limited contact with Ms. Hengl concerning the plaintiff’s development, at some point, to provide her with background on the requirement for reciprocal access agreements which were included as conditions, in the City’s Site Plan Control Agreements with both Home Depot and ROCK Developments.

[95] The discrepancy in the evidence with respect to whether Mr. Wilson made the request to which Ms. Hengl deposes can be resolved with resort to the fact finding powers available pursuant to r. 20.04(2.1) of the Rules, to weigh the competing evidence in the context of the other evidence available on the motion. I will explain.

[96] None of the parties adduced the Minutes of the Site Plan Review Committee meeting said to have occurred on February 26, 2013. Ms. Hengl’s evidence at her examination for discovery and Rosati’s responses to the undertakings given therein, disclose that Rosati otherwise consistently and contemporaneously provided the plaintiff with information relevant to the progress of its development, but there is no evidence that Rosati advised the plaintiff about Mr. Wilson’s alleged request.

[97] The summary of the documentary productions made by Rosati in respect of this action (which begins on March 7, 2013), as prepared by Ms. Hengl, is attached as Exhibit No. 22 to Mr. Florjancic’s affidavit. The summary discloses that Rosati’s “follow up” with respect to its site plan control pre-consultation meeting was directed to John Revell and not Mr. Wilson. None of the written communications between the City and Rosati that passed at any time after the February 26, 2013 pre-consultation meeting confirm or reference a request made by any City employee that Rosati refrain from initiating contact with Home Depot and ROCK Developments on the issue of access until after a site plan control agreement was made between the City and the plaintiff, and in fact, Rosati did not do so. Instead, Rosati raised the issue of access directly with Home Depot approximately a month before the plaintiff received site plan approval and over a month before the City and the plaintiff entered into a corresponding site plan agreement.

[98] The evidence also discloses that in mid-April 2013 (while the plaintiff’s application was still in circulation for comment by various City Departments), Rosati made inquiries to Mr. Revell regarding various issues related to RAAs with Home Depot and ROCK Developments, to which Mr. Revell promptly responded. In an e-mail communication from Ms. Hengl to Mr. Revell, dated April 15, 2013, she confirms Rosati’s receipt of ROCK Developments’ Site Plan Control Agreement with the City and a Mutual Operating Easement and Operating Agreement between Home Depot and ROCK Developments, which Rosati reviewed together with Home Depot’s SPCA. She then writes:

“Each of the Site Plan Agreements provide that the land owners agree to negotiate the access. We wish to contact both 1700734 and Home Depot to discuss access to Joseph’s Produce, but were hoping your earlier discussions with them provided direction as to appropriate cost sharing measures and a framework for contribution.”

In her correspondence, Ms. Hengl then requests specifics on the “usual method of cost sharing”. Mr. Revell responded to her inquiries through an e-mail communication on April 15, 2013 and advised her, among other things, “Please go ahead and contact the neighbours and start the process.” Contextually, this was over a month before the plaintiff received site plan approval.

[99] In their exchange, neither Ms. Hengl nor Mr. Revell refer to a prior request by the City that Rosati refrain from contacting Home Depot and ROCK Developments until the plaintiff entered into its own site plan control agreement with the City. Instead, Mr. Revell encouraged Rosati to initiate negotiations while the plaintiff’s site plan application was under review by various City Departments and prior to its approval.

[100] In weighing the conflicting evidence concerning whether Mr. Wilson was present at the February 26, 2013 Site Plan Review Committee meeting and, if so, whether he asked Rosati to defer initiating access discussions with Home Depot, in the context of the foregoing evidence, I accept the evidence that he did not make such a request. Mr. Wilson was not involved in negotiating or developing site plan control agreements at the time he is said to have made the impugned statement. The content of the e-mails exchanged between Ms. Hengl and Mr. Revell evidences that Rosati sought to contact Home Depot in mid-April 2013, and Mr. Revell encouraged it to do so, at a time when the plaintiff’s site plan application had yet to be approved and a site plan agreement had yet to be drafted, let alone signed. That course of events is inconsistent with the unconfirmed suggestion that Mr. Wilson requested that Rosati delay such inquiries until some time after the plaintiff received site plan approval.

[101] Ms. Hengl also asserts that during the February 26, 2013 pre-consultation meeting the City was advised that the plaintiff wanted its development to be opened to the public by Thanksgiving in October 2013.

[102] On March 11, 2013, Rosati submitted a site plan control application to the City on behalf of the plaintiff, with a view to obtaining site plan approval and a Site Plan Control Agreement with the City. A copy of the plaintiff’s proposed site configuration is appended as Schedule ‘C’ to these reasons (as taken from the Plaintiff’s application for site plan control approval).

[103] Beginning on April 9, 2013, a series of correspondence concerning issues related to the negotiation of a reciprocal access agreement between the plaintiff and Home Depot passed between members of the City and members of Rosati, and internally, between various City employees, which include the following:

1. April 9, 2013 – Dan McCulloch (Rosati’s Land Development Manager) sent e-mail correspondence to Werner Plackmann, the City’s Zoning Coordinator, inquiring about the potential amounts of the plaintiff’s “cost sharing” obligations that would be associated with access to the subject property over Home Depot land. He inquired as to whether the City had specific cost calculations for the subject property and whether the servicing costs associated with items such as traffic lights would be apportioned on a pro rata basis. By return e-mail correspondence the same day, Mr. Plackmann provided a copy of the comments made by the City’s Zoning Department in relation to the plaintiff’s application for site plan control approval and confirmed that there were no other zoning issues. Mr. Revell followed Mr. Plackmann’s correspondence with his own e-mail communication to Mr. McCulloch indicating that he would look into the access agreements.

2. April 11, 2013 – Mr. Revell advised Ms. Vendrasco, by e-mail communication that he was reviewing an application for site plan control for the subject property, which was anticipated to connect with internal traffic circulation at the Home Depot site. He requested clarification with respect to whether the owner of the subject property would “need to create a new reciprocal access agreement.” By return e-mail, the same day, Ms. Vendrasco confirmed that the Home Depot SPCA “indicates that they would have to permit and enter into reciprocal access agreements with various properties in the future” and that the SPCA specified the addresses of the properties involved. She confirmed that if the Home Depot SPCA identified the subject property as requiring such an access agreement, then the owner of 2025 Division Road would have to enter into a new reciprocal access agreement with Home Depot.

3. April 12, 2013 – Mr. Revell provided Ms. Hengl with copies of the Home Depot and ROCK Developments site plan control agreements, together with e-mail correspondence dated April 12, 2015, in which he advised Ms. Hengl that the plaintiff would be required to develop an agreement with Home Depot for reciprocal access and bring it before the Committee of Adjust for approval.

4. April 15, 2013 – Ms. Hengl forwarded e-mail correspondence to Mr. Revell advising him that Rosati wished to contact both 1700734 (ROCK Developments) and Home Depot to discuss access arrangements. She asked him whether the City had engaged in any discussions with those entities with respect to appropriate cost sharing measures and “a framework for contributions.” She also inquired about the “usual method of cost sharing” for traffic signals and road improvements. She observed that the SPCA mandated that the terms and conditions of any easement agreement be “acceptable to the Owner [Home Depot and ROCK Developments] and the Corporation [the City]” and that the anticipated easement agreements “shall include consideration of appropriate cost sharing for the provision of existing or future mutually beneficial services including but not limited to, access driveway, underground services, traffic signals and road improvements.” She requested “some direction” from the City with respect to that condition. She sought a response at the City’s earliest possible opportunity so that the development could move forward. She observed that the “Mutual Easement and Operating Agreement” between Home Depot and ROCK Developments did not address the issue of access to the subject property. Finally, she sought clarification with respect to the manner in which the reciprocal access issue would impact the finalization of the Site Plan process. She conveyed Rosati’s hope that since access over lands abutting the plaintiff’s property was mandated “by the City” and agreed to by the two abutting owners (including Home Depot), the Site Plan process could move forward at the same time that “Rosati processed the easement applications.” She expressed concern that if the easement applications and agreements had to be finalized before the site plan could move forward that it would stifle the application entirely. [As set out later below, the site plan control agreement that the plaintiff executed in June 2013 required it to negotiate an RAA with Home Depot before a construction permit would issue.]

5. April 15, 2013 – Mr. Revell replied to Ms. Hengl’s e-mail correspondence and advised her that Home Depot had paid for a traffic signal and roadway improvements to Division Road. He could not find documentation regarding the development of a cost sharing arrangement between the parties but suggested that a “fair split” would either be a ratio based on the linear frontage of each development or based on the number of parking stalls that each development has. He posited that both ROCK Developments and Home Depot were legally obliged to enter into an RAA with the plaintiff to the City’s satisfaction and the City would intervene, when necessary, to assist with negotiations and to help Rosati secure access. He endorsed that she contact the plaintiff’s abutting land owners and start the negotiation process. He provided contact information for Greg Priamo, a principal at Zelinka Priamo Ltd. who had acted on behalf of Home Depot in its site plan control application. He also cautioned that if the access agreements related to a restricted portion of a neighbour’s property (as opposed to the whole of the property), they would be subject to Committee of Adjustment approval.

(viii) The Plaintiff Initiates Access Negotiations with Home Depot

[104] Other than through Rosati, the plaintiff did not contact or communicate with Home Depot regarding an access or easement agreement, prior to January 2014. In turn, Rosati’s first communication with Home Depot on the issue of access (or at all) was by e-mail correspondence, dated April 26, 2013, from Rosati’s Land Development Manager Dan McCulloch to John Tascione, a Real Estate Manager with Home Depot.

[105] In his e-mail message, Mr. McCullough requested guidance with respect to the “proper channels to submit an easement application to Home Depot for cross access through the two existing driveways at your store at 1925 Division Road in Windsor.” Mr. McCulloch further advised that the owner of the subject property had received site plan approval and was required to enter into an access agreement with Home Depot, as prescribed by a site plan agreement signed by Home Depot in 2007. He identified Rosati as the plaintiff’s agent for the application, and the entity responsible for constructing the building on the subject property, at the appropriate time. He requested Mr. Tascione’s earliest attention to the matter and indicated that he was willing to provide any further information or details that he required. Mr. McCulloch did not indicate that the plaintiff sought to have its development completed and open to the public by a specified date, whether in October 2013 or otherwise.

[106] Mr. Tascione responded to Mr. McCulloch by e-mail correspondence dated April 30, 2013. In his response: he inquired whether Rosati had provided “all of this information for our in-house review?”; he advised that generally Home Depot does not simply provide additional access through its driveways; he advised that Home Depot would review the issue but he could not advise that it would provide the requested access; he inquired whether the plaintiff had requested Home Depot’s cooperation before advancing its site plan application; and finally, he inquired whether there was any other historic data of which he should be aware.

[107] Ms. Hengl responded to Mr. Tascione’s inquiries by e-mail correspondence on April 30, 2013 enclosing a variety of documents including: a completed “Home Depot Existing Store Matter Third Party Request Form”; “Easement Documents/Application”; and a copy of the SPCA that was registered on title to Home Depot’s property on July 5, 2007. She did not advise Mr. Tascione about the plaintiff’s intentions to have its premises open to the public by October 2013, or any other date.

[108] Mr. Tascione responded to Ms. Hengl’s correspondence by e-mail correspondence dated April 30, 2013, in which he asked her whether Rosati had detailed plans showing any proposed curb cuts, current access points, etc., and he suggested that she should overlay Rosati’s proposed changes to the existing conditions. Ms. Hengl responded on the same date and stated that the documentation that she had forwarded earlier that day showed the proposed site plan for the subject property (as developed), together with the proposed access points and curb cuts. She further stated that the Home Depot SPCA showed the Home Depot property together with its “access ways on either side of 2025 Division Road, complete with curb cuts and access points”. She confirmed that if the material supplied was not sufficient, then Rosati could provide additional drawings or information. Finally, Mr. Tascione responded again on April 30, 2013 and advised Ms. Hengl that Home Depot would have its consultant review the package and assuming that it was consistent with “the prior approval”, it would be processed “asap”.

[109] Having received no further response from Home Depot, Ms. Hengl sent e-mail correspondence to Mr. Tascione on May 13, 2013, in which she advised him that Rosati would be “commencing construction shortly” and it hoped to finalize “the easements as required by the City and previously consented to by Home Depot”, in its SPCA. Mr. Tascione responded by e-mail correspondence dated May 14, 2013, stating, “We are pushing it through the system. We will get it done asap.”

[110] Throughout the months of April and May 2013, Rosati also forwarded several e-mail communications to both the principal of ROCK Developments and ROCK Developments’ solicitor, in an attempt to initiate negotiations for a reciprocal access agreement with ROCK Developments. Rosati never received a meaningful response to same.

(ix) The Plaintiff’s Site Plan Control Agreement with the City

[111] In its final report regarding the plaintiff’s application for site plan approval, dated May 23, 2013, the City’s Site Plan Review Committee recommended approval of the application subject to a number of conditions, including a requirement that the plaintiff enter into a reciprocal access agreement with abutting land owners to the satisfaction of the City’s solicitor.

[112] In accordance with the Committee’s recommendation, Ms. Vendrasco prepared a draft Site Plan Control Agreement between the plaintiff and the City requiring, among other terms, that the plaintiff enter into an agreement for shared reciprocal access with the owner(s) of 1925 Division Road (Home Depot), prior to the issuance of a construction permit. Specifically, provision S-3 of the City’s site plan agreement with the plaintiff provides:

S-3. Reciprocal Access Agreement – The Owner further agrees prior to the issuance of a construction permit, to enter into an agreement for shared/reciprocal access with the Owner(s) of the adjacent lands municipally known as 1925 Division Road, to the satisfaction of the City Solicitor.

[Emphasis added.]

[113] The draft Site Plan Control Agreement between the City and the plaintiff also specified, at section S-8 of its terms, that the plaintiff agreed that the City’s Chief Building Official shall not be required to issue a construction permit for the plaintiff’s development until the plaintiff complied with a number of the specified terms of the agreement, including the successful negotiation of an RAA with the owner of 1925 Division Road [Home Depot].

[114] Ms. Vendrasco testified that the phrase “to the satisfaction of the City Solicitor” was included in provision S-3 of the Site Plan Agreement between the plaintiff and the City (set out above), as a method by which the City could ensure that an access agreement was registered on title to the plaintiff’s property. To Ms. Vendrasco’s knowledge, the City had never intervened in the direct negotiation of such an access agreement between two abutting property owners.

[115] On May 23, 2013, the City approved the draft Site Plan Control Agreement between itself and the plaintiff. Despite the outstanding and early-staged nature of the negotiations concerning an access agreement between Home Depot and the plaintiff, the plaintiff executed the Site Plan Control Agreement in early June 2013. By so doing, the plaintiff obligated itself to enter into a Reciprocal Access Agreement with Home Depot, as a condition precedent to the City’s issuance of a construction permit with respect to the plaintiff’s development.

(x) The Stall in Access Negotiations between the Plaintiff and Home Depot

[116] On May 27, 2013 Ms. Hengl sent an internal e-mail communication to various members of Rosati, advising them that the plaintiff’s application for Site Plan approval for the subject property had been granted. She also identified ten outstanding requirements under the plaintiff’s anticipated Site Plan Control Agreement that had to be addressed, including the negotiation of reciprocal access agreements with neighbouring properties. She indicated that she would contact Mr. Revell to discuss some of the outstanding issues, including the reciprocal access agreements. In response to an undertaking given at Ms. Hengl’s examination for discovery, Rosati confirmed that the information in Ms. Hengl’s e-mail dated May 27, 2013 was verbally communicated to the plaintiff by Dennis Gauthier, Rosati’s Vice President of Project Development.

[117] On May 31, 2013, Ms. Hengl sent e-mail correspondence to Home Depot’s Mr. Tascione, to follow-up on the status of its request to negotiate the terms of an access agreement. That message resulted in Ms. Hengl’s receipt of a telephone voicemail message from solicitor, Perry Katz of Miller Thompson LLP. Mr. Katz acted as Home Depot’s external real estate counsel with respect to issues related to the potential RAA between the plaintiff and Home Depot. In his message, Mr. Katz requested further specified information from Ms. Hengl related to the plaintiff’s access request. He also advised her that any [Reference] Plan accompanying a consent application to the Committee of Adjustment should only describe the roadways owned by Home Depot over which the plaintiff would be granted an easement. Ms. Hengl replied to Mr. Katz through e-mail correspondence dated May 31, 2013, advising him that Rosati expected to receive a draft Reference Plan that day. In her evidence on these motions, Ms. Hengl confirms that she never advised Mr. Katz about Home Depot’s intention to be open to the public by Thanksgiving 2013, at any time.

[118] Ostensibly, Mr. Katz sent e-mail correspondence dated May 31, 2013 to Greg Priamo of Zelinka Priamo Ltd., in which he requested input with respect to the costs incurred by Home Depot in the development of its Division Road site, which would then inform the appropriate cost sharing arrangements between Home Depot and the City, as contemplated by the terms of Home Depot’s SPCA.

[119] Subsequent to her contact with Mr. Katz, Ms. Hengl engaged in a telephone conversation with Mr. Revell, in which she posited that both Home Depot and ROCK Developments had “agreed or consented to allow access over their properties to [the plaintiff’s property] through their own site plan agreements” and, therefore, the City should allow the plaintiff’s development to proceed without further delay. She further advised Mr. Revell that allowing Rosati to proceed with the development of the subject property, in the absence of Committee of Adjustment approval, would send the message to Home Depot and ROCK Developments that they could not prevent the plaintiff’s development or otherwise delay it. Mr. Revell advised her that he would need to speak to the City’s Legal Department to determine the manner in which the City would proceed.

[120] On May 31, 2013, Ms. Hengl sent an internal e-mail communication to Rosati’s Mr. Gauthier and Mr. McCulloch, advising them that she had spoken with Home Depot’s lawyer and there were six items, which she enumerated, that needed to be considered in order to adequately revise the easement/Reference Plan related to the plaintiff’s development thereby, enabling Rosati “to deal with Home Depot now that they are ready to talk.” She further advised them that Home Depot was “looking at its costs for installation of the driveway and traffic lights”, which was relevant to the issue of cost sharing. Finally, she expressly averted to the need for the plaintiff to obtain its own counsel to negotiate the access agreement with Home Depot, stating:

“Joseph’s needs to get their lawyer on side to negotiate with HD. That is not something that we should sport for.”

[121] Ms. Hengl testifies that she did not receive a response from either Mr. Gauthier or Mr. McCulloch with respect to her suggestion that the plaintiff engage their own counsel to negotiate access. She was clear in her evidence that, at all times, she remained counsel for Rosati and specifically not the plaintiff and she did not hold herself as being the plaintiff’s solicitor for the purpose of access negotiation, or at all.

[122] As set out above, Ms. Hengl further testifies that, in general, Rosati’s determination as to whether or not to refer a client to their own counsel for the purpose of negotiating an access agreement is dependent on the proposed agreement’s complexity. Rosati would routinely deal with simple matters directly on behalf of its clients, such as access over a driveway being granted on consent. However, as the circumstances surrounding “access” became more complex, Rosati’s client would be referred to their own lawyer to deal with the issue.

[123] Ms. Hengl agrees that by May 31, 2013, she appreciated that the nature of the proposed access agreement between Home Depot and the plaintiff warranted the plaintiff obtaining its own legal representation in respect thereto. She states that at that point, Rosati did not have an appreciation of what Home Depot was specifically going to suggest were its consideration for providing an easement in favour of the plaintiff. Nevertheless, at her examination for discovery, she testified that she viewed it as an access agreement for which Joseph’s required their own counsel because: “it was far more complicated than just the average one”; Home Depot was being “fairly off putting”; and Home Depot was also enquiring about traffic concerns.

[124] In its response to undertakings given at the examination for discovery of Ms. Hengl, Rosati advises that Dennis Gauthier provided the plaintiff with the information contained in Ms. Hengl’s May 31, 2013 e-mail communication (which included the recommendation that the plaintiff involve its own counsel in access negotiations). Conversely, at his joint examination for discovery with Brad Joseph, Wayne Joseph denied that Rosati recommended that the plaintiff retain its own lawyer to negotiate access with Home Depot. In any event, the plaintiff did not retain its own counsel for that purpose, at that time.

[125] By e-mail correspondence dated June 6, 2013, Rosati’s Mr. McCulloch advised the City’s John Revell that the plaintiff was “ready to apply for a building permit” for its development. He further advised that: the estimated time required to construct the proposed premises was four months; he anticipated that it would take a full two months to negotiate and register easements for the lands neighbouring the subject property; and, they were “already making good progress in that regard.” Finally, Mr. McCulloch requested that the plaintiff’s Site Plan Control Agreement be amended by removing the term requiring the plaintiff to execute an access agreement with Home Depot as a condition precedent to the City’s issuance of a construction permit, reasoning that the adjoining land owners (including Home Depot) had already agreed to provide such access, as a term of their own respective site plan control agreements.

[126] On June 12, 2013 an e-mail was circulated internally at Rosati by Mr. McCulloch to Dennis Gauthier and Ms. Hengl, in which he advised them that: a construction agreement between the plaintiff and Rosati was ready for signature; the City would not allow the “prior to construction clause” relating to “the Home Depot easement” to be removed from the plaintiff’s site plan control agreement, but Mr. Revell indicated that he would speak with Bill Jean (the City’s Deputy Chief Building Officer) to arrange for a foundation permit in order to allow Rosati to get started; Home Depot’s legal counsel advised that Home Depot would not permit an easement to be granted over any grassed areas on Home Depot’s land and instead, any proposed easement must follow the curbs of the roadway; Rosati was arranging for new drawings to reflect the configuration specified by Home Depot; once the new drawings were completed they would be forwarded to Home Depot’s legal counsel and Rosati would get an “indication of timing from [him]”. Finally, Mr. McCulloch felt that it was an oversight that ROCK Developments was not part of the plaintiff’s site plan control agreement, and he suggested that it should be party to a reciprocal access agreement with the plaintiff.

[127] Despite the optimism expressed by Mr. McCulloch in his June 12, 2013 e-mail communication, the City did not issue a foundation permit for the plaintiff’s development prior to an RAA being negotiated between the plaintiff and Home Depot. In response to an undertaking given at Ms. Vendrasco’s examination for discovery (and appended as Exhibit No. 13 to Mr. Florjancic’s affidavit), the City advised that John Revell received a phone call from Dan McCullough [sic], requesting a conditional (foundation) permit. In response, Mr. Revell indicated he would “look into it”. He raised the issue with the City’s Deputy Chief Building Official, Bill Jean. Mr. Jean denied the request.

[128] In his e-mail communication dated June 12, 2013, described above, Mr. McCulloch represents that, at that time, Mr. Katz (Home Depot’s outside counsel) was actively working with Rosati to, in effect, identify the terms and conditions of an easement agreement that would be acceptable to Home Depot. In my view, the following narrative evidence establishes that Mr. Katz was doing just that.

[129] It appears that from the time of Mr. Katz’s initial involvement until June 13, 2013, Home Depot (through the efforts of Mr. Katz and Zelinka Priamo Ltd.) was gathering necessary information to address the cost sharing aspects of an anticipated RAA with the plaintiff, and it was doing so on a timely basis. Specifically, in accordance with a request made by Mr. Katz through e-mail correspondence dated May 31, 2013, Jonathan Rodger of Zelinka Priamo Ltd. completed an analysis of the costs incurred by Home Depot in the development and servicing of its Division Road development that were appropriate for “cost sharing”.

[130] However, in an e-mail message to Mr. Priamo, dated June 4, 2013, Mr. Rodger, among other things, also included a copy of the City’s correspondence dated November 20, 2009 (described earlier in these reasons), that indicated that the City would retain $20,000 from the original letter of credit securing Home Depot’s obligations under its servicing agreement, in lieu of Home Depot’s alleged non-performance of its asserted obligation to enter into a reciprocal access easement with the then owner of the subject property. Unfortunately, Mr. Rodger did not advise Mr. Priamo that the City subsequently returned that letter of credit, in full, for cancellation several months after the November 20, 2009 correspondence was sent.

[131] Mr. Rodger’s June 4, 2013 e-mail correspondence was shared with Mr. Katz and it appears that Home Depot and Mr. Katz subsequently proceeded on the misapprehension that to the extent that Home Depot had any obligation to enter into a reciprocal access agreement with the owner of the subject property (subject to the conditions set out in Home Depot’s SPCA), that obligation was extinguished in November 2009. Home Depot’s subsequent and short-lived position that it did not have any obligation, conditional or otherwise, to enter into an RAA with the plaintiff was directly informed by its misapprehension of the effect and circumstances surrounding the City’s November 20, 2009 correspondence.

[132] Home Depot’s misinformed position manifested itself as follows. On June 13, 2013, Ms. Hengl received a revised draft Reference Plan that restricted the proposed easement in favour of the subject property over Home Depot’s property, which she then forwarded to Mr. Katz by e-mail correspondence on the same date. In her e-mail, she also confirmed that the plaintiff’s request for access was limited to the “driveway portions” of Home Depot’s land, and she provided particulars of the proposed curbing configuration.

[133] In response, Mr. Katz forwarded e-mail correspondence to Ms. Hengl on June 13, 2013 at 7:18 p.m. (copied to Mr. Tascione at Home Depot, as well as, Mr. Priamo and Mr. Rodger) in which he writes:

“Upon further inquiry, we have learned that Home Depot was relieved by the Town of its obligation in the Site Plan Control Agreement to negotiate an easement agreement with the owner of the property at 2025 Division Road. Attached for your information is a copy of a letter dated November 20, 2009 from the Town’s Manager of Right-of-Way advising that “…the City shall retain $20,000.00 from the original LOC…in lieu of performance to entering into the Reciprocal Access Agreement with the property at 2025 Division as identified in the Site Plan Control Agreement…” I understand that the City of Windsor retained $20,000.000 in order to install drainage works to benefit your client’s property, and to restore the curb cuts along your client’s frontage, for direct access to Division Rd… In light of the foregoing, Home Depot has no obligation to grant an access easement to your client over any internal roadways on the Home Depot property, and will not do so.”

[Emphasis added.]

[134] The position adopted by Mr. Katz was of great concern to both Ms. Hengl and Ms. Vendrasco. Rosati sought to deal with the issue proactively. Ms. Vendrasco marshalled several key members of the City’s staff to investigate and ultimately, refute Home Depot’s erroneous position, as founded in the November 20, 2009 correspondence. The evidence discloses that the following happened in that regard.

[135] In her uncontradicted evidence, Ms. Vendrasco indicates that on June 14, 2013, Ms. Hengl advised her that Home Depot was refusing to negotiate an access agreement and she forwarded a copy of Mr. Katz’ correspondence of June 13, 2013 to her. In subsequent e-mail correspondence dated June 14, 2013, addressed to Ms. Vendrasco, Mr. Revell, Neil Roberston (the City’s Manager of Urban Design) and Mr. Wilson, Ms. Hengl requested a meeting with members of the City’s Planning Department, the City Solicitor and Mr. Bondy (the author of the impugned correspondence) in order to prevent any further developmental delay to the plaintiff.

[136] Ms. Vendrasco further testifies, without contradiction, that on June 14, 2013, she expressly advised Ms. Hengl that Mr. Bondy did not have the power or authority to amend a site plan control agreement nor could such an agreement be amended by unilateral correspondence from the City. In addition, she undertook to investigate the matter and immediately requisitioned both the Home Depot and ROCK Developments files from the City’s storage archives. Subsequently, on June 14, 18, and 19, 2013, a series of internal meeting occurred between members of the City for the purpose of gathering the necessary information to address Home Depot’s newly asserted position. During the course of those meetings, Mr. Bondy advised Ms. Vendrasco he had no recollection of his reason or rationale for preparing the November 20, 2009 correspondence.

[137] On June 18, 2013, Ms. Vendrasco forwarded e-mail correspondence to Ms. Hengl advising her that the City had conducted internal meetings on the issue and a further meeting was scheduled to be held the following week, after which she would contact Mr. Katz to discuss the situation.

[138] In her evidence, Ms. Hengl confirms that when she raised Mr. Katz’ June 13, 2013 position with her, Ms. Vendrasco immediately advised her that the City was investigating the issues associated with the November 20, 2009 correspondence and the City’s initial position was that a Site Plan Control Agreement cannot be amended by correspondence. As a lawyer practicing in the field of municipal law, Ms. Hengl agreed with that analysis and she was of the view that Home Depot’s purported reliance on the November 20, 2009 correspondence was “fairly tenuous”. Ms. Vendrasco made clear that the City was strongly advocating that Home Depot’s position was not tenable.

[139] In response to an undertaking given at Ms. Hengl’s examination for discovery, Rosati states that once it received Home Depot’s correspondence denying access, it advised the plaintiff that Ms. Vendrasco or someone else at the City would “handle the matter going forward”, and further, that Rosati never received instructions from the plaintiff to do otherwise.

[140] Ms. Vendrasco testifies that she spoke with Mr. Katz by telephone shortly after she spoke with Ms. Hengl on June 18, 2013, and advised him that as a matter of law, Home Depot’s SPCA could not be amended by correspondence. Mr. Katz parried that position by asserting that it was his understanding that the City had retained $20,000.00 on a letter of credit as consideration for relieving Home Depot of its obligations under the SPCA. Ms. Vendrasco asked him what the City could do to get negotiations between the plaintiff and Home Depot back on track. Mr. Katz advised her that he would get back to her. As a result of that exchange, Ms. Vendrasco believed that Mr. Katz was seeking instructions from Home Depot to agree to continue access negotiations with the plaintiff.

[141] Ms. Vendrasco’s uncontradicted evidence establishes that she continued with her investigation into the circumstances surrounding the November 20, 2009 correspondence and ultimately, determined that the City had not retained the $20,000 of the letter of credit, as its November 20, 2009 correspondence suggested it would and Mr. Katz submitted that it had. Armed with that information, Ms. Vendrasco spoke with Mr. Katz again on June 25, 2013. She advised him that the City had, in fact, returned the $20,000 letter of credit and she undertook to provide him with documentation evidencing same. Mr. Katz advised Ms. Vendrasco that he would speak to his client and get back to her.

[142] On June 26, 2013, Ms. Vendrasco e-mailed Mr. Katz a copy of her letter to the Toronto-Dominion Bank, dated July 6, 2010, which had been contemporaneously copied to Mr. Rodger of Zelinka Priamo Ltd., in which she instructed the bank to cancel the remaining letter of credit in the amount of $20,000.

[143] On June 26, 2013, Ms. Hengl sent e-mail correspondence to Ms. Vendrasco requesting a status update concerning her investigation and advising her that Rosati had a meeting scheduled with representatives of the plaintiff on June 28, 2013. Through that correspondence, Ms. Hengl requested that a representative of the City attend the meeting and explain “how this happened and what was being done to rectify it”. Ms. Vendrasco replied to her in writing and advised that: she had spoken with Mr. Katz the previous day; she had e-mailed him further information that morning; and Mr. Katz was to speak to his client and get back to her.

[144] Ms. Vendrasco testifies that from her perspective, by June 26, 2013, the City had demonstrated to Home Depot that it had not retained the $20,000 letter of credit, and it was waiting to hear back from Mr. Katz regarding Home Depot’s position in response to same. She also states that the City would have taken steps to enforce Home Depot’s SPCA had Home Depot maintained the position that it was relieved of its obligations under that agreement. However, as of June 26, 2013, Ms. Vendrasco’s impression was that, in all of the circumstances, Home Depot would resile from the position that Mr. Katz announced, on its behalf, in his June 13, 2013 e-mail correspondence. She was accurate in that regard.

[145] In the context of these motions, Home Depot has adduced further evidence explaining how it came to adopt its short-lived position in June 2013 that it was relieved of its SPCA-related obligations.

[146] In his affidavit evidence, Mr. Williams, on behalf of Home Depot, deposes that on June 4, 2013, Home Depot was advised by Mr. Rodger that pursuant to the provisions of the servicing agreement between the City and Home Depot, the City had retained $20,000 of a letter of credit in lieu of Home Depot entering into a reciprocal access agreement with the owner of property at 2025 Division Road. He further testifies that Mr. Katz, Home Depot’s outside counsel, advised him that he (Mr. Katz) relied on Mr. Rodger’s representation in that regard, together with the content of the City’s November 20, 2009 correspondence that Mr. Rodger provided to support his representation. In so doing, Mr. Katz advised Ms. Hengl that in exchange for the retained $20,000 letter of credit, Home Depot no longer had an obligation to negotiate an access agreement with her client.

[147] Mr. Williams further states that Mr. Katz advised him that on June 25, 2013, during a telephone conversation that he had with Ms. Vendrasco, she advised him that the letter of credit had ultimately been cancelled. The following day, she confirmed that information through supporting documentation in the form of a letter, dated July 6, 2010, returning the $20,000 letter of credit to the Toronto-Dominion bank.

[148] Mr. Williams acknowledges that on its face, it appears that Ms. Vendrasco’s July 6, 2010 correspondence was copied to Mr. Rodger on behalf of Home Depot, contemporaneous with its date. However, Mr. Williams states that after conducting reasonable searches, Home Depot has not been able to conclude that it ever received a copy of Ms. Vendrasco’s July 6, 2010 correspondence, either from Mr. Rodger or otherwise, prior to receiving it from Ms. Vendrasco (through Mr. Katz) on June 26, 2013.

[149] Finally, Mr. Williams deposes that after receipt of the July 6, 2010 correspondence from Ms. Vendrasco, on June 26, 2013, Home Depot never raised the “letter of credit issue” again. Indeed, there is no evidence that after June 26, 2013, Home Depot ever expressly posited that it was relieved of any obligations it had under S-6.(1) of the SPCA, as a result of the November 20, 2009 correspondence, or at all.

[150] The plaintiff submits that an adverse inference should be drawn because Home Depot adduced evidence in this area on the basis of Mr. Williams’ information and belief, as opposed to directly from those persons having personal knowledge of the foregoing matters. I decline to draw such an inference for the following reasons. First, aspects of Mr. Williams’ evidence on the foregoing matters is supported by contemporaneous documentation evidencing the content of the communications to which he deposes (copies of which are appended to his affidavit). Aspects of his evidence on those matters are consistent with the evidence of Ms. Vendrasco, who was a first-hand participant in some of the events to which Mr. Williams deposes, and whose evidence I accept. Mr. Williams was the subject of cross-examination, during which the foundation of his belief in the events to which he deposed was not shaken; and his evidence on “information and belief” is not inconsistent with the balance of the evidence on this motion. In the result, I accept Mr. Williams’ evidence.

[151] Returning to the June 2013 narrative, on June 27, 2013, Ms. Vendrasco left a voice mail message for Ms. Hengl, advising her that: the City had previously returned the impugned $20,000 letter of credit; Home Depot was now aware of that fact; and Mr. Katz was seeking further instructions, as a result.

[152] Members of Rosati and the plaintiff’s principals met on June 28, 2013. By that time, the plaintiff was aware of the position Home Depot adopted on June 13, 2013. Ms. Hengl cannot recall if she advised the plaintiff’s principals during the meeting that, in her view, Home Depot’s position was tenuous. She did advise the plaintiff that the City had communicated with Home Depot and that the City disputed Home Depot’s position concerning the effect of its November 20, 2009 correspondence. Rosati had prepared a construction contract between the plaintiff and itself, for execution at that meeting. The construction contract was presented to the plaintiff’s principals, but they did not sign it because of the outstanding access issues.

[153] Following the June 28, 2013 meeting, Ms. Hengl sent correspondence to Ms. Vendrasco and Mr. Revell dated June 28, 2013, in which she indicates, among other things, the following:

1. The plaintiff was not prepared to accept access to the subject property directly from Divison Road as not only was it “poor planning” but it would require a redesign of the building and traffic flow, resulting in an inefficient use of the subject property.

2. The plaintiff recognized access issues in advance of its purchase of the property and relied upon the Site Plan Control Agreements registered on title to both Home Depot and ROCK Developments lands, as well as, discussions with the City, in determining valuation and efficient design of its development.

3. In order for the plaintiff to be open for Thanksgiving it was imperative that the matter be moved forward in an expeditious manner and the “matter with Home Depot is causing much concern and delay”.

4. Although the plaintiff’s site plan control agreement did not require an access agreement with ROCK Developments, it remained that to date, the plaintiff had made no progress with the principal of ROCK Developments with respect to access.

[154] In her correspondence, Ms. Hengl also demanded, on behalf of the plaintiff, that the City “take all necessary steps to expeditiously enforce the Site Plan Agreements” with Home Depot and ROCK Developments. Finally, Ms. Hengl requested, in the interim, that the City issue a building permit in order to allow the plaintiff to meet its planned Thanksgiving opening date. Ms. Hengl did not advise the City that the plaintiff was in jeopardy of losing its committed tenants if it did not open its premises by that date. Indeed there is no evidence that the City was ever informed about that possibility, before this action was commenced.

[155] For her part, following their June 25, 2013 telephone conversation, Ms. Vendrasco continued to pursue Mr. Katz, in order to discern Home Depot’s intention on the access issue and she kept Ms. Hengl informed of her attempts in that regard.

[156] On June 28, 2013, Ms. Vendrasco and Ms. Hengl engaged in a telephone conversation about the potential amount the plaintiff may owe on account of cost sharing as part of a negotiated access agreement with Home Depot. Ms. Vendrasco advised her that Home Depot could not charge for access, but that cost sharing for the site’s servicing would be appropriate. She also advised Ms. Hengl that in the event that Home Depot was willing to provide the plaintiff with access, the City would work with the plaintiff even if the access arrangements were not finalized. However, she cautioned that the City would not permit the plaintiff to move forward with construction without anything further on the issue of access from Home Depot, as it would make the end result worse for everyone.

[157] Despite Ms. Vendrasco’s efforts to engage Mr. Katz, there is no evidence that establishes that the City became the plaintiff’s agent or that Ms. Vendrasco became its solicitor for the purpose of negotiating an access agreement or easement with Home Depot. Instead, in her evidence, Rosati’s Ms. Hengl confirms that from her perspective the City never became the plaintiff’s lawyer for the purpose of negotiating access with Home Depot and the City was not responsible for negotiating an access agreement on behalf of the plaintiff. She testifies that the City’s continuing efforts to engage Home Depot were designed to facilitate the implementation of the terms of its site plan control agreement with Home Depot.

[158] Ms. Hengl also testifies that after June 27, 2013, she had no further direct communication with Home Depot (or its solicitor) for the purpose of negotiating access on behalf of the plaintiff because she did not receive instructions from the plaintiff to do so. She states that as far as she knew, the project was not going ahead at that time, and as a result, Rosati would not have received any further instructions from the plaintiff, at all.

[159] Through his affidavit, his examination for discovery and his cross-examination, Wayne Joseph provides varying evidence with respect to whether the plaintiff “expected” that Rosati would continue to attempt to negotiate an RAA with Home Depot on the plaintiff’s behalf, or whether it expected Rosati to cease all efforts in that regard after June 28, 2013. I will specifically refer to those aspects of Mr. Joseph’s evidence in more detail later in these reasons. However, both Wayne Joseph and Ms. Hengl testify and I find, that the plaintiff stopped communicating with Rosati at the end of June 2013 or mid-July 2013 at the latest, and the plaintiff did not provide Rosati with any instructions related to whether to continue in its efforts to negotiate reciprocal access agreements with Home Depot and ROCK Developments, or any other aspect of the development of the subject property after the end of June 2013 or the middle of July 2013, at the latest.

[160] Ms. Vendrasco’s efforts to determine Home Depot’s position continued into July. She testifies that she spoke with Mr. Katz on July 2, 2013 and he advised her that he had been unable to contact Home Depot’s Real Estate Director for updated instructions, but in anticipation of potential questions that he felt would be posed to him by Home Depot, Mr. Katz asked Ms. Vendrasco if a study had been undertaken to determine the site impact of additional traffic that may be generated by the plaintiff’s development of the subject property. He also expressed concern with respect to the proximity of the plaintiff’s proposed “easterly entrance/exit” to the subject property in relation to the “entrance/exit” at the east end of the Home Depot property.

[161] In my view, in the context of the totality of the evidence, Mr. Katz’s July 2, 2013 inquiries and observations are consistent with a consideration of the merits of the plaintiff’s request for Home Depot’s accommodation of access to the subject property, rather than an unequivocal position that Home Depot would not allow access to the subject property over its own land. (In that regard, Home Depot’s Jacob Williams confirmed in his evidence that apart from a 13 day period between June 13, 2013 and June 26, 2013, Home Depot did not advance the position that it had been relieved of any of its obligations specified in the SPCA.)

[162] Ms. Vendrasco deposes that after speaking with Mr. Katz on July 2, 2013, she informed both Ms. Hengl and Mr. Revell about the content of their conversation through e-mail correspondence. Ms. Hengl responded with an e-mail communication on July 2, 2013, in which she advised Ms. Vendrasco that the plaintiff was not required to obtain a traffic study as part of the planning process and accordingly, it did not do so. Ms. Hengl also indicated that the proximity of the proposed entrance/exits for the plaintiff’s developed site were circulated to all necessary City Departments during the site plan consultation process and their locations did not generate any adverse comments or concerns. Ms. Vendrasco forwarded Ms. Hengl’s response to Mr. Katz on July 3, 2013. In my view, in the context of the totality of the evidence, these exchanges are consistent with ongoing efforts between representatives of Home Depot and the plaintiff, albeit through the City, to develop and disclose information relevant to the plaintiff’s access request.

[163] On July 5, 2013, Ms. Hengl sent e-mail correspondence to Ms. Vendrasco, in which she inquired whether she had heard anything further from Mr. Katz. Ms. Vendrasco responded the same day and indicated that she had forwarded Ms. Hengl’s response to Mr. Katz on July 3, 2013, and that she had yet to receive a response from him.

[164] Ms. Vendrasco next placed telephone calls to Mr. Katz on July 15 and July 16, 2013, but she was unable to make direct contact with him, nor did he directly contact Ms. Vendrasco in response, at that time. Through e-mail correspondence, dated July 16, 2013, Ms. Vendrasco advised Ms. Hengl of her efforts in that regard.

[165] On July 16, 2013, Ms. Vendrasco was also advised by the City’s Chief Administrative Officer (CAO) that City Councillor Hilary Payne had made inquiries about a “situation” on Division Road over which he was concerned. The CAO asked Ms. Vendrasco for additional information in that regard. Through e-mail correspondence dated July 17, 2013, Ms. Vendrasco responded to the CAO and provided a general overview of the circumstances surrounding access to 2025 Division Road, to date.

(xi) The Home Depot Traffic Study (and Related Delay)

[166] On July 22, 2013, Ms. Vendrasco sent e-mail correspondence to Mr. Katz in which she again requested an update concerning Home Depot’s position on access to the subject property. She also advised Mr. Katz that she was receiving calls from council members and status requests from Rosati’s in-house counsel. In a subsequent telephone conversation that day, Mr. Katz advised Ms. Vendrasco that he had been authorized by Home Depot to contact Jonathan Rodger (at Zelinka Priamo Ltd.), in order to retain a traffic consultant to review the plaintiff’s site plan and its potential impact on Home Depot’s property, including traffic volumes and flow. Mr. Katz was unable to estimate the amount of time that would be required for the anticipated traffic consultation, but agreed to keep Ms. Vendrasco advised in that regard.

[167] On July 23, 2013, Ms. Vendrasco advised Ms. Hengl and Councillor Payne through e-mail correspondence, about the substance of her conversation with Mr. Katz and her interpretation that “what this means is that Home Depot is no longer saying “no” to the access but looking to resolve the issue and protect their interests”.

[168] Councillor Payne advised Ms. Vendrasco that he had forwarded her correspondence directly to the plaintiff’s principal, Wayne Joseph. In its responses to undertakings given at Ms. Hengl’s examination for discovery, Rosati confirmed that it also informed the plaintiff that Home Depot was retaining a traffic consultant to “assess” access. At their joint examination for discovery, neither Wayne Joseph nor Brad Joseph specifically recalled being advised that Home Depot had retained a traffic consultant. In addition, Wayne Joseph testifies that he does not specifically recall receiving a forwarded copy of Ms. Vendrasco’s e-mail correspondence to Councillor Payne, but he concedes that if Councillor Payne says that he sent it to him, he must have.

[169] Rosati’s Ms. Hengl testifies that when she was informed that Home Depot was retaining a traffic consultant, she believed that Home Depot was prepared to consider granting access to the plaintiff. She states that she did not have any reason to conclude that Home Depot was not acting in good faith because it was pursuing a traffic study, and no one at the Rosati Group had any reason to believe that Home Depot was acting in bad faith. Instead, she reasoned that if Home Depot was prepared to expend its resources to retain a traffic consultant, it was doing so with a view to evaluating the merits of the plaintiff’s proposed reciprocal access agreement. She testifies that even though the City did not request a traffic study as part of the plaintiff’s site plan approval process, she was of the view that Home Depot was entitled to conduct a traffic study on its own initiative. She never advised the plaintiff (or its principals) that Home Depot was raising the issue of a traffic study as a pretext to deny the plaintiff access. Finally, she agrees that after June 27, 2013, Home Depot never expressly stated that it was denying access to the plaintiff.

[170] Similarly, Ms. Vendrasco deposes that although Mr. Katz did not expressly advised her that Home Depot’s plan to retain a traffic consultant meant that it was now prepared to evaluate the plaintiff’s request for access on its merits, it was clear to her that that was the case. She reasoned that it would not be sensible for Home Depot to spend money for a traffic study, if it planned to refuse to negotiate terms of access with the plaintiff, (as a result of the November 20, 2009 correspondence, or otherwise). Based on the totality of her discussions with Mr. Katz, it was evident to her that the position Mr. Katz articulated on June 13, 2013 had changed. In addition, at her examination for discovery, Ms. Vendrasco testified that it made “perfect sense” to her that Home Depot was retaining a traffic consultant because the City was already aware of a potential traffic issue whereby vehicles exiting the Home Depot site from its westerly driveway were lined up for some time at the signalled intersection.

[171] Consistent with his advice to Ms. Vendrasco on July 22, 2013, Mr. Katz advised Home Depot that Mr. Rodger was procuring an estimate from LEA Consulting Ltd. to conduct a traffic study. LEA Consulting provided a fee proposal in that regard to Home Depot on July 25, 2013. Mr. Williams testifies that LEA Consulting was considered a “new vendor” for the purpose of Home Depot’s purchasing/procurement software system. Unfortunately, as a result of the complex process required to obtain internal Home Depot approval for a purchase order from a new vendor (which is set out in vivid detail in Mr. Williams’ evidence), it took some time for LEA’s formal retention to be approved. Indeed, at his examination for discovery, Mr. Williams described the relatively cumbersome process through which LEA was approved as a new vendor, which delayed the actual conduct of the traffic study by over two months.

[172] The difficulty and delay associated with this issue is further evidenced by a lengthy series of contemporaneous e-mail exchanges spanning July 22, 2013 to September 4, 2013 between Home Depot’s Brian Cannard and Zelinka Priamo’s Jonathan Rodger that are appended at Exhibit ‘R’ of Mr. Williams’ affidavit, sworn November 3, 2016. Their e-mail correspondence evidences, among other things, that despite LEA Consulting Ltd.’s involvement in “off-site” work during the construction of Home Depot’s Division Road store, it did not have a “vendor number” for the purpose of “uploading” the necessary documentation to receive a purchase order through the Expensite Software used by Home Depot.

[173] In his evidence, Mr. Williams also provides insight into Home Depot’s decision to retain a traffic consultant. At his examination for discovery, Mr. Williams testified that whenever Home Depot receives an “easement request” it examines the proposed site plan with a view to gaining an appreciation of how the proposed easement will impact Home Depot’s customers. In doing so, Home Depot considers, among other things, whether the proposed plan will result in traffic back-up into the site, and the nature of truck movement that will access the site during the construction phase of the development. The traffic study ultimately commissioned by Home Depot encompassed not only traffic considerations related to Home Depot’s internal roadways, but also the intersections between the site’s access driveways and Division Road and the site’s access driveways and the abutting properties.

[174] As the delay related to the issuance of a purchase order to LEA for the traffic study unfolded, Ms. Vendrasco sent e-mail correspondence to Mr. Katz on August 14, 2013, through which she requested an update regarding the status of the traffic study. She was advised by return e-mail that Mr. Katz was out of the office until August 26, 2013. Ms. Vendrasco next forwarded e-mail correspondence to Mr. Katz on September 13, 2013, in which she requested an update with respect to the status of the traffic study. He responded by e-mail correspondence on the same date and advised her that there were some “administrative hiccups that have delayed the traffic analysis”, and he confirmed that Home Depot was continuing to work towards retaining a traffic consultant. Ms. Vendrasco replied by e-mail correspondence and requested an estimate of the time required to do so. She also inquired whether the City could provide or assist with obtaining any information required by Home Depot. Mr. Katz replied and advised her that he would make inquiries on timing.

[175] On September 20, 2013, Ms. Vendrasco sent e-mail correspondence to Mr. Katz again requesting a status update on the traffic study. In response, she received e-mail correspondence from Brian Cannard, Real Estate Manager for Home Depot, stating “they should be able to proceed by end of next week. Sorry for the delay”.

[176] Ms. Vendrasco kept Ms. Hengl contemporaneously informed about the nature and content of her communications with Mr. Katz, between July and September 2013. Conversely, it appears that Rosati’s last communication to the City with respect to the plaintiff’s development was July 22, 2013.

(xii) The Statement of Claim is Served

[177] The City was served with the plaintiff’s statement of claim on September 23, 2013, which surprised Ms. Vendrasco because she was under the impression that all parties were waiting to hear back from Home Depot regarding the status of the traffic study that it had commissioned. After the City was served, Ms. Vendrasco left it to the plaintiff or its counsel, Mr. Colautti, to deal directly with Home Depot (and its counsel) on the access issues.

(xiii) The Lengthy “Reciprocal Access Agreement and Easement” Negotiations and Execution

[178] After the “administrative hiccups” concerning LEA’s retention were resolved, it concluded the traffic study and prepared a report dated October 31, 2013, in which it confirmed that the access sought by the plaintiff would negligibly impact the existing operations at the Division Road Home Depot site, provided that the turn signal timing at the intersection of the western access driveway was optimized to accommodate additional traffic exiting the site at that point.

[179] Ms. Hengl testifies that to her understanding, the plaintiff retained its own solicitor to negotiate access once it became clear, through Home Depot’s commission of the traffic study, that it intended to negotiate access terms.

[180] On December 4, 2013 (approximately one month after the traffic study report was finalized), Home Depot’s counsel forwarded a twenty-seven page draft reciprocal access agreement to the plaintiff’s litigation counsel (Mr. Colautti) for consideration and comment. Among its terms, the draft agreement contemplated that the plaintiff would fully and finally release Home Depot from the subject matter of this action.

[181] Thereafter, the parties, through counsel, engaged in a lengthy negotiation of the terms of an RAA and an easement agreement, and engaged in steps to ready those agreements for execution. The plaintiff now asserts that the prolonged period of time required to complete the RAA resulted from Home Depot “dragging its feet” in the process. In my view, the available evidence, which I will summarize in some detail below, establishes that Home Depot engaged in good faith efforts to conclude the agreement in a timely manner. I find no basis to conclude that Home Depot engaged in intentional or unreasonable delay in the negotiation and execution of the resulting access and easement agreements, or any ancillary action required in relation thereto.

[182] Ultimately, the reciprocal access agreement was fully negotiated and ready for execution by the plaintiff in the fall of 2015, once all ancillary matters such as the plaintiff’s application to the Committee of Adjustments and registration of the related Reference Plan were completed. In my view, the following narrative discloses that the time required to negotiate the agreement and to complete the necessary steps to ready it for execution was reasonable in all of the circumstances.

[183] In his uncontradicted evidence, Mr. Williams explains the complexities associated with the negotiation of the reciprocal access and easement agreements between the plaintiff and Home Depot that account for the duration of its negotiation. Those complexities included: reviewing the proposed access and its impact on the site (including customer traffic); negotiating the maintenance agreement for existing infrastructure improvements that were in place; negotiating the ongoing maintenance responsibilities (snow removal, asphalt repair and re-staking the property); negotiating Home Depot’s oversight of the plaintiff’s proposed construction on Home Depot land, (to ensure its roadways remained open for customer traffic); and the need for Home Depot to secure a deposit for the construction work that would be undertaken to create the necessary curb paths off of Home Depot’s property. He states that while every project is different, based on the complexities involved in this instance, an appropriate access agreement could take up to a year to negotiate.

[184] Below, I will set out the chronology of the negotiations as derived from Mr. Saroli and Mr. Williams’ respective evidence and the exhibits attached to their respective affidavits, which evidenced the communications between counsel during their negotiations.

[185] On January 3, 2014, (approximately one month after receiving the draft access agreement from Home Depot’s counsel), Mr. Colautti advised Home Depot’s counsel, among other things, that the plaintiff was not prepared to negotiate an access agreement unless it was on a without prejudice basis to its right to pursue litigation. On January 23, 2014, Home Depot agreed to that term.

[186] On March 18, 2014, (approximately two months after Home Depot agreed to negotiate the access agreement without prejudice to the plaintiff’s ability to pursue this action and three and a half months after the initial draft access agreement was provided to Mr. Colautti), the plaintiff, through counsel, first responded to the substantive content of the draft agreement and raised nine enumerated issues with respect to same, concerning, among other things: the amount the plaintiff was required to contribute for construction of the existing access facility; the specific payment structure for a proposed one-time $50,000 contribution by the plaintiff towards the future cost of maintenance of common road ways; and the structure of a hold-back of funds related to the plaintiff’s anticipated reconfiguration of aspects of Home Depot’s existing access infrastructure. Mr. Colautti also confirmed that the plaintiff would provide a further draft Reference Plan.

[187] On April 9, 2014, (approximately three weeks after the plaintiff’s initial substantive response to the access agreement), Home Depot’s counsel provided a revised draft agreement that addressed some of the issues enumerated by the plaintiff’s counsel. At the same time, Home Depot’s counsel also sent the plaintiff’s counsel correspondence addressing all nine of the enumerated issues that he had raised.

[188] To assist with the negotiation of the access agreement, Mr. Colautti retained solicitor Frank Saroli, (who had never before negotiated such an agreement). On April 24, 2014, Mr. Saroli forwarded correspondence to Home Depot’s counsel in which he: confirmed that the plaintiff was in the process of retaining an Ontario Land Surveyor to prepare a Reference Plan; agreed to Home Depot’s position on seven of the nine issues originally identified by the plaintiff; requested further documentation to substantiate Home Depot’s request for a one-time maintenance payment of $50,000.00; inquired about access to the subject property for the purpose of construction; and requested confirmation that the plaintiff would have access to both the west and east access driveways that connected to Division Road.

[189] On May 27, 2014, Mr. Saroli provided Home Depot’s counsel with a draft Reference Plan, and requested confirmation of historical amounts paid by Home Depot to maintain the proposed common roadways over which access would be granted. Home Depot’s counsel replied by correspondence dated June 11, 2014, in which she identified the nature of the maintenance for which Home Depot would be responsible and the approximate annual cost of such services. She also confirmed that Home Depot did not object to the updated draft Reference Plan.

[190] It appears that on June 18, 2014, after continued negotiations, the parties reached a consensus on the plaintiff’s contribution to future maintenance costs. On that date, plaintiff’s counsel requested that Home Depot’s counsel prepare and forward signing copies of the reciprocal access agreement. Approximately one month later, plaintiff’s counsel sent correspondence (dated July 17, 2014), to Home Depot’s counsel, in which he again requested copies of the access agreement for execution. Home Depot’s counsel responded by e-mail correspondence on July 28, 2014, in which she advised that she would review the matter shortly.

[191] On July 29, 2014, Home Depot’s counsel sent e-mail correspondence to Mr. Saroli and advised him that prior to finalizing the reciprocal access agreement for signature she required a registered Reference Plan, together with certain contact information for the plaintiff, to be inserted in the agreement. She also reminded Mr. Saroli about previous communications between them in which they discussed deferring the registration of the Reference Plan until after Committee of Adjustment approval for Planning Act purposes was obtained, and she inquired whether the plaintiff now wished to execute the reciprocal access agreements before those events occurred.

[192] Mr. Saroli responded through e-mail correspondence on September 16, 2014 (approximately one and one half months later), in which he provided the plaintiff’s requested contact information and he advised Home Depot’s counsel that his intent was to have his client execute the access agreement that week. By correspondence dated September 17, 2014, Home Depot’s counsel advised Mr. Saroli that the draft access agreement could not be executed in its present form because its provisions contained “bullet point” characters in the place of an actual R-plan deposit number (because the Reference Plan had not yet been deposited). She also asked him whether an application to the Committee of Adjustment had been provided. Mr. Saroli responded by correspondence dated September 18, 2014, and advised counsel that he obtained a Committee of Adjustment application on September 17, 2014, which he intended to complete and forward to her for review before he submitted it. He also posited that the parties should wait for Committee of Adjustment approval before registering the Reference Plan related to the proposed easements, in case changes had to be made to it.

[193] Through e-mail correspondence dated September 29, 2014, Mr. Saroli requested certain specified information that he required to complete the application to the Committee of Adjustment. In her reply that day, Home Depot’s counsel indicated that she had made inquiries to obtain the requested information, which she ultimately provided to him on October 8, 2014.

[194] On November 5, 2014, Mr. Saroli advised Home Depot’s counsel that he had completed the application for Planning Act consent. On January 12 and 13, 2015, Mr. Saroli participated in the City’s pre-consultation process with respect to the Committee of Adjustment application.

[195] By correspondence dated March 11, 2015 (approximately five months after Home Depot’s counsel provided Mr. Saroli with the information that he requested), Mr. Saroli provided Home Depot’s counsel with three copies of the application for Committee of Adjustment consent and requested that she: review same with Home Depot; complete a portion of the application; and return all copies to him, executed, which he would then submit to the Committee of Adjustment.

[196] Over the course of April and May 2015, counsel for Home Depot and the plaintiff, respectively negotiated changes to Schedule “A” of the application to the Committee of Adjustment. On June 11, 2015, Home Depot provided Mr. Saroli with copies of the Application for Consent as executed by Home Depot. On June 24, 2015, Mr. Saroli corresponded with Home Depot’s counsel about a change made by Home Depot in the executed copy of the application for consent. Home Depot’s counsel responded the same day.

[197] On July 8, 2015, Mr. Saroli corresponded with counsel for Home Depot and advised her that he had submitted the application to the Committee of Adjustment, but he had not received a hearing date yet. The hearing was eventually held on July 30, 2015, and consent was granted without conditions. Mr. Saroli advised Home Depot’s counsel of the results of the hearing on August 4, 2015, and advised that once the decision became final, he would instruct the surveyor to register the Reference Plan.

[198] On September 9, 2015, Mr. Saroli provided Home Depot’s counsel with a final and binding Committee of Adjustment decision dated August 31, 2015. On September 22, 2015, Mr. Saroli instructed the land surveyor to register the draft Reference Plan and he provided Home Depot’s counsel with a copy, as registered, on October 7, 2015. Home Depot’s counsel responded the same day indicating that he would revise the form of easement agreement to incorporate the Reference Plan particulars. He did so and forwarded the revised documents to Mr. Saroli on October 9, 2015.

[199] In his October 9, 2015 correspondence, Home Depot’s counsel also asked Mr. Saroli to confirm that he could now circulate copies of the easement agreement for signature by the plaintiff and Home Depot, and he requested that Mr. Saroli prepare a form of consent certificate, to be issued by the Committee of Adjustment and appended to the registered easement agreement. Finally, he reminded Mr. Saroli that in addition to an executed copy of the access agreement and easement agreement, the plaintiff was required to pay Home Depot the sum of $34,097.50 plus HST as its contribution towards past site improvements, together with an additional $50,000.00 plus HST as a one-time roadway maintenance contribution. The plaintiff was also required to pay a hold-back amount equal to 125% of the estimated cost to construct roadways, curbs and walkways on Home Depot’s land that were necessary to accommodate the plaintiff’s development, which would be held in trust by Home Depot’s counsel. Mr. Saroli acknowledged receipt of the draft access agreement on October 21, 2015 and raised a minor issue with respect to landscaped areas.

[200] Ultimately, the plaintiff did not execute the reciprocal access agreement and easement agreement until July 2017, after which the easement was registered on title. Mr. Saroli’s evidence on cross-examination, indicates that the timing of the plaintiff’s execution of those agreements was designed to avoid a lapse in the Committee of Adjustment’s consent/approval, which was operative for a two-year period, after it was granted in July 2015. Mr. Saroli agrees that the plaintiff could have executed the access agreement in 2015, had it so desired.

[201] In cross-examination, Mr. Saroli also testifies that: the plaintiff did not ask him to adhere to a specific time-line in his access negotiations with Home Depot; from his perspective, Home Depot was not attempting to delay the progress of the negotiations; he believed that both the plaintiff and Home Depot (through their respective counsel) “were doing their best” to get the access agreement completed; and the plaintiff could have executed the access agreement a year and a half earlier than it did. Mr. Saroli does not know the reason for the plaintiff’s delay in its execution of the access agreement, but he was aware that one of its principals was concerned about the 125% construction hold-back required by its terms. Eventually, counsel for Home Depot arranged for the hold-back payment to be deferred until the property was actually developed, in fact.

[202] In the result, the plaintiff now enjoys a right of access over Home Depot’s property. An easement over a specific portion of Home Depot’s land exists in perpetuity in favour of the subject property, which is consistent with the manner of access contemplated in section S-6.(1) of the SPCA and the plaintiff’s own site plan agreement, as well as the City’s preferred method of access, from a planning perspective. Nonetheless, the plaintiff has not taken further steps to develop the subject property, having abandoned its proposed development years ago. The evidence with respect to when it actually did so is somewhat unclear. I will explain below.

(xiv) The Timing of the Plaintiff’s Abandonment of its Proposed Development of the Subject Property

[203] The plaintiff’s anticipated development of the subject property did not proceed. The project was abandoned and the subject property remains vacant land. Wayne Joseph explains the circumstances that lead to that result in his affidavit sworn May 4, 2017, as follows:

1. as a result of Home Depot’s refusal to provide an access agreement, the entire project “was thrown into doubt and came to a halt” (see para. 15);

2. the plaintiff’s proposed tenants, who had committed to the premises on the basis of an anticipated 2013 Fall opening, were lost when the project stalled and could not proceed throughout 2014 and up until August 2015 (see para. 15);

3. Home Depot’s refusal to provide access to the subject property through its internal roadways, together with its initial refusal to enter into a reciprocal access agreement, made it impossible for the project to proceed any further, without delay (see para. 26);

4. the documents attached to the affidavits of Mr. Florjancic and Mr. Saroli evidence that during negotiations, Home Depot delayed its approval of the documents that were necessary to enter into the RAA (see para. 28) [Mr. Joseph does not offer any further assistance in identifying the specific documents that are said to evidence Home Depot’s “delay” in that regard.]

5. the delay caused by the plaintiff’s unsuccessful attempts to gain access to its property had a severe impact on its development project. The two tenants that it had secured for the property were unwilling to wait any longer and each of them “pulled out” of the project (see para. 29); and

6. Mr. Meats eventually entered into a lease arrangement for an alternative premises in close proximity to the subject property. It advised the plaintiff that it intended to open a market at that location with or without the plaintiff. Mr. Joseph states that the plaintiff had “no real choice”, but to follow Mr. Meats to its new location and rent space in that premises, in order to continue their productive complimentary relationship. Owing to what Mr. Joseph describes as interminable delays in negotiating an access agreement with Home Depot, the plaintiff was forced to “shelve the project at 2025 Division Road for the time being” (see para. 30).

[204] In his affidavit, Mr. Joseph does not depose to the specific timing of the plaintiff’s decision to “shelve the project” at 2025 Division Road and, in that regard, the balance of the evidence is not entirely clear.

[205] During their joint examination for discovery, both Wayne Joseph and Brad Joseph testified that as of the date of that examination (October 15, 2014), the plaintiff was contemplating leasing a commercial premises on Walker Road with a view to sub-leasing space in that premises to Mr. Meats. It is unclear if they were referring to the same “alternative premises” that Wayne Joseph deposes to in his affidavit, as set out above. They testified that the plaintiff was in the process of negotiating the terms of a lease for that premises and that it had first engaged in discussions with the landlord in that respect, approximately two months earlier. Finally, they testified that the plaintiff had started looking for an alternative premises to the subject property approximately three months before the discovery date, (i.e. in July 2014). Notably, in accordance with the evidence previously set out, that date was approximately a month after the plaintiff and Home Depot had reached a consensus on the last of the nine issues with respect to the draft RAA raised by the plaintiffs in March 2014 (i.e. on June 18, 2014).

[206] With respect to the timing of the plaintiff’s abandonment of its development of the subject property, both Wayne Joseph and Brad Joseph testified at their discovery that they did not have any communications with Rosati about putting the development “on hold”, at any time. Brad Joseph added that “ever since we were told that we’re not allowed to enter our property its pretty well been on hold”. Wayne Joseph testified that Rosati stopped working on the project when “he” found out from Home Depot that “he” could not get access to it, so “he stopped right then and there”.

[207] Brad Joseph also testified that the plaintiff never instructed Rosati to stop its work in relation to the development project. He was unable to recall when he discovered that Rosati had “given up on the project”.

[208] Neither Wayne Joseph nor Brad Joseph could specifically recall the last time that they spoke to anyone at Rosati. However, Wayne Joseph testified that once they received the letter from Mr. Katz stating that access would not be afforded to the plaintiff, everything remained at a standstill – “whatever date that was” (Mr. Katz’s correspondence expressing that position was received by Rosati on June 13, 2013). Later in their discovery examination, Brad Joseph testified that as of June 19, 2013, the plaintiff still wanted to proceed with its development of the subject property although it would not have accepted access to the subject property directly from Division Road, in order to do so.

[209] Neither Brad Joseph nor Wayne Joseph could recall receiving advice from Rosati that on July 23, 2013, Home Depot indicated that it was commissioning a traffic study in relation to the plaintiff’s access request. The plaintiff never contacted Home Depot nor did it instruct Rosati to contact Home Depot to determine the status of the traffic study before issuing its Statement of Claim in September 2013. Both Wayne Joseph and Brad Joseph have never seen a copy of the completed traffic study.

[210] Brad Joseph and Wayne Joseph’s evidence at their joint discovery examination also indicates that after July 2013, the plaintiff did not take any additional steps to complete an access agreement with ROCK Developments, reasoning that there was no point in doing so because the access issue with Home Depot could not be resolved. Through counsel, they confirmed that plaintiff first contacted litigation counsel in respect of the access issue on July 16, 2013 and a file was opened by counsel on July 25, 2013.

[211] On July 17, 2013, Ms. Hengl forwarded correspondence to the plaintiff advising, among other things, that Rosati was continuing to pursue the City in order to secure its enforcement of the “reciprocal access agreement” terms in the Home Depot and ROCK Developments Site Plan Control Agreements and she further advised them that Rosati would continue to pursue the completion of the SPCA and reciprocal access requirements, unless it heard otherwise from the plaintiff. Wayne Joseph and Brad Joseph testify that in accordance with the content of Rosati’s July 17, 2013 correspondence, the plaintiff expected that Rosati would continue in its attempts to negotiate a reciprocal access agreement with Home Depot on the plaintiff’s behalf. They also testify that after receiving information that Home Depot was obtaining a traffic study, the plaintiff expected that Rosati would continue to follow-up with Home Depot to negotiate a reciprocal access agreement in the same way that Rosati had been doing, prior to July 17, 2013. The Josephs state that there should have been no change in Rosati’s practice, in that regard. Brad Joseph deposed that the plaintiff still intended to develop the subject property, at that time.

[212] The examination for discovery evidence of the Josephs indicates that the plaintiff never instructed Rosati to stop its attempts to enforce the “reciprocal access requirements” of the Home Depot and ROCK Developments site plan control agreements. Their evidence also indicates that in September 2013, the plaintiff attempted, on its own, to continue to pursue a reciprocal access agreement with Home Depot, without expressively advising Rosati of its intent to do so. The Josephs depose that it was Rosati that stopped communicating with the plaintiff, once it was clear that Home Depot was not going to grant the plaintiff access. Further, they confirm that Rosati was not involved in the negotiation of the reciprocal access agreement that was eventually executed between Home Depot and the plaintiff.

[213] During his subsequent cross-examination, Wayne Joseph testified that he did not instruct Rosati to stop communicating with Home Depot, at any time. However, he says that after the plaintiff retained Mr. Colautti to commence an action in July 2013, the plaintiff did not provide any further instructions to the Rosati Group.

[214] In his cross-examination, Wayne Joseph also testifies that he understood that Rosati was going to stop pursuing negotiations with Home Depot, but it was never instructed to do so by the plaintiff.

[215] In the result, the foregoing evidence suggests that the plaintiff abandoned its development of the subject property by July 2014, at the latest (which was shortly after it reached consensus on the terms of an RAA with Home Depot) but it had no further communication with its design/build consultant at all, after June 2013, except to periodically receive correspondence from it. It did not provide any instructions to its design/build consultant after June 2013, or at the latest July 16, 2013 (when it contacted counsel). Aspects of the evidence suggest that the plaintiff continued to expect that Rosati would continue with its attempts to negotiate access with Home Depot both before and after July 17, 2013. However, other aspects of the evidence indicate that on receipt of the June 13, 2013 Katz correspondence, Rosati stopped its work completely and Wayne Joseph understood that Rosati would also stop pursuing access negotiations with Home Depot. In any event, the plaintiff provided no instructions to, nor did it seek information from, Rosati with respect to the development in either July or August 2013. Then, in the period of December 2013 to January 2014, the plaintiff began to pursue access negotiations on its own, without advising Rosati.

(xv) The Plaintiff’s Asserted Losses

[216] In his affidavit, Wayne Joseph deposes that the delays in gaining access to the subject property resulted in the plaintiff incurring the following types of loss:

1. A loss of sales for the period between October 2013 and July 2015, at which time the plaintiff opened its South Windsor store at a different location.

2. Loss of rental income from the property.

3. Additional rental expenses it has incurred operating from its current South Windsor premises.

4. Carrying costs associated with the subject property, including loss of interest on the money used to acquire it, together with municipal taxes.

5. Payments and other contract expenses paid to Rosati.

6. Legal fees incurred to negotiate and secure the reciprocal access agreement with Home Depot.

[217] As of the date of his affidavit, Mr. Joseph estimated the plaintiff’s losses to be between 2.5 and 3 million dollars. The plaintiff has since delivered a Supplemental Motion Record including a report authored by James Tracey dated, July 24, 2017, in which he calculates the plaintiff’s alleged loss of income and other expenses to be in the range of $2,960,000 to $3,363,000, and the plaintiff’s alleged combined loss in value of the subject property and the premises that the plaintiff intended to construct on the property to be $1,613,250.

[218] It is in the context of the foregoing evidence that I must determine whether the defendants have met their respective burdens to establish that there is no genuine issue in respect of the plaintiff’s claims that requires a trial in order to fairly and justly adjudicate the parties’ disputes.

V) THE PLAINTIFF’S FAILURE TO ADEQUATELY PLEAD CERTAIN BASES OF LIABILITY IT ASSERTS IN THE CONTEXT OF THE SUMMARY JUDGMENT MOTIONS

[219] Before I set out the reasons for judgment on the defendants’ motions, I return to an issue to which I referred earlier. The defendants have legitimately held concerns that through its factum and submissions, the plaintiff has advanced several bases of liability that are not pleaded in the statement of claim. They posit that it would be unfair and inappropriate to decide these motions on theories of liability or causes of action that are not supported by pleaded material facts. This is particularly so, since the newly asserted bases of liability were not disclosed by the plaintiff until it delivered its responding party’s factum shortly before these motions were scheduled to be heard. The defendants submit that the timing of the plaintiff’s late disclosure in that regard is extremely prejudicial. They would be deprived of an opportunity to address those unpleaded claims, through evidence, if the plaintiff was permitted to rely on them in the context of these motions.

[220] The defendants correctly observe that this action was commenced in September 2013 and it has progressed through: documentary discovery; examinations for discovery; examination for discovery of a non-party; and in the context of these motions, the exchange of affidavits and the conduct of cross-examinations. Yet, the plaintiff has never sought to amend its statement of claim to allege the material facts in support of the bases of liability it now asserts, even after the defendants raised the “lack of proper pleading” issue in the context of these motions.

[221] I accept the defendant’s submission that it would be inappropriate to dismiss their motions for summary judgment premised on a finding that the record discloses a genuine issue requiring a trial in respect of bases of liability that have not been properly pleaded. Conversely, I do not accept the plaintiff’s submission that the material facts it has pleaded in the statement of claim broadly support all of the bases of liability that it raises in the context of the summary judgment motions, which in turn, require a trial to determine.

[222] A liberal and generous reading of the allegations of material fact set out in the statement of claim, fails to disclose all of the bases of liability against the City that the plaintiff has unpacked in the context of these motions. I will explain.

[223] Through its factum and submissions, the plaintiff advances bases of liability against the City founded in negligence, nuisance and the plaintiff’s asserted legal and/or equitable entitlement to proprietary relief in the form of an easement over municipal property. In the context of these motions, the plaintiff asserts that the City’s operative negligence is legion and spans three distinct periods of time:

1. Its negotiation and execution of the Home Depot SPCA in 2007;

2. Its failure to reasonably enforce the SPCA in 2008/2009, at a time when it appreciated both the need for the owner of the subject property to access that property over Home Depot’s land and Home Depot’s (alleged) breach of the SPCA (by failing to enter into an RAA with the owner of the subject property); and

3. Its failure to reasonably enforce the SPCA and/or to take reasonable steps to ensure that Home Depot discharged its contractual obligations to negotiate an RAA with the plaintiff (or otherwise provide timely access to it), in 2013.

[224] The plaintiff also submits that the conduct of the City unreasonably and substantially interfered with its use and enjoyment of the subject property and as a result, the City is liable in nuisance. Finally, the plaintiff claims that the circumstances in this instance entitle it to a legal or equitable easement as against the City.

[225] However, material facts that support the foregoing bases of liability have not been alleged by the plaintiff in the statement of claim. Instead, the bases of liability pleaded in the statement of claim against the City are founded in:

1. Allegations that prior to the closing of its purchase of the subject property in December 2009, the plaintiff received representations from the City that the reciprocal access agreement contemplated in the SPCA was in place and “of full force and effect” at that time and the plaintiff relied on those representations to its detriment (see paras. 5, 9 and 12 of the statement of claim).

2. Allegations that the City carelessly issued a letter purporting to relieve Home Depot of its obligation to enter into an RAA, in breach of the SPCA and without regard to the plaintiff’s interest in “the easement” [contemplated by the RAA]. Ultimately, the letter was of no force and effect. The City breached its duty of care to notify the plaintiff, as an adjacent land owner and beneficiary of the anticipated RAA prior to any purported waiver of the “easement”, in circumstances where the City knew that by releasing the plaintiff’s right to secure an easement over Home Depot land, the value of the plaintiff‘s land would be sterilized (paras. 14, 15 and 17 of the statement of claim).

3. The City breached its duty of care to the plaintiff by releasing Home Depot from its obligation to provide an easement to the plaintiff (paras. 14, 15, 17 and 20 of the statement of claim).

4. The City breached the site plan control agreement that it made with the plaintiff in June 2013 by purporting to release Home Depot from its obligation to enter into an RAA in 2009 (paras. 12 and 21 of the statement of claim).

[226] At paragraph 22 of the statement of claim, the plaintiff pleads that the City and/or Home Depot are legally or equitably liable to compensate the plaintiff for all damages reasonably flowing from the “aforesaid breach of covenant, negligence or negligence misrepresentations as set out above” [emphasis added], referring to the content of the preceding 21 paragraphs.

[227] The disconnect between the content of the plaintiff’s pleadings and the bases of liability it now asserts against the City is problematic. There is a similar disconnect between the plaintiff’s pleadings of liability against Home Depot and a basis of liability asserted against it in the plaintiff’s factum and submissions, which I will specifically detail when I determine Home Depot’s summary judgment motion later in these reasons.

[228] For reasons that I will explain below, I accept the defendants’ position that when determining whether they have established that there is no genuine issue with respect to the plaintiff’s claims that requires a trial, this court ought not to have regard to any basis of liability that has not been adequately pleaded in the statement of claim.

[229] Mindful of the foregoing, I will now address the merits of the respective motions for summary judgment, starting with the motion brought by the City. In so doing, I will: identify each of the plaintiff’s asserted bases of liability; its position on that issue; and explain why, in the context of the totality of the evidence, a trial is not required to fairly and justly determine the issue, with reference to and application of the relevant legal principles. I will then undertake the same process in the context of Home Depot’s motion.

VI) DISPOSITION OF THE CITY’S MOTION FOR SUMMARY JUDGMENT

[230] I will determine the City’s motion by first addressing the bases of liability that the plaintiff asserts against it in the context of the City’s motion that have not been adequately pleaded in the statement of claim. I will also explain the problematic nature of those asserted bases of liability, apart from their unpleaded status. I will then explain why, in my view, there is no genuine issue with respect to any of the pleaded claims against the City that requires a trial in order to arrive at a fair and just adjudication of the action against the City, on its merits.

(a) The Newly Asserted Basis of Liability Against the City Alleging It Negligently Negotiated the Terms of the SPCA and Negligently Failed to Preserve An Unconditional Right of Access to the Subject Property

(i) The Parties’ Positions

[231] In its factum, the plaintiff asserts that as a successor in title to real property (2025 Division Road) that was affected by the terms of the SPCA between the City and Home Depot, the City owed it a duty of care when negotiating the terms of the SPCA, to take reasonable steps to preserve its unqualified right of access to the subject property. It alleges that by failing to do so, the City engaged in actionable negligence that has resulted in the losses alleged in the statement of claim.

[232] Relying on the decided results in J.F. Brown & Co. v. Toronto (City) (1916), 29 D.L.R. 618 (Ont. C.A.) at p. 620, aff’d (1917), 55 S.C.R. 153; and Whaley v. Kelsey, [1928] 2 O.L.R. 268 (Ont. C.A.), cited in Windsor (City) v. Larson (1980), 114 D.L.R. (3d) 477 (Ont. Div. Ct.), at p. 480, at para. 8, the plaintiff submits that as a municipality, the City: has complete jurisdiction over public highways (municipal streets); is tasked with a duty to keep all highways in a state of good repair; and is answerable in damages for neglect of that duty. The plaintiff posits that a municipality’s duty of care in that regard prohibits it from curtailing the right-of-way over public highways or permitting others from doing the same. In turn, the plaintiff contends that a municipality’s duty as set out above, combined with common sense, supports a finding that the City owed a private law duty of care to it, as a successor in title to the subject property, to preserve an unqualified right of access to that property for the benefit of its owner, when negotiating the terms of the SPCA.

[233] The plaintiff does not rely directly or by analogy, on a previously recognized duty of care to establish that when a municipality negotiates a site plan control agreement, it owes a private law duty of care to an eventual successor in title to a property that abuts the property that is the subject of the agreement, to ensure that access is preserved to that abutting property. Instead, the plaintiff submits that there is sufficient proximity and foreseeability to support the existence of a private law duty of care owed by a municipality to any eventual successor in title of private property, to ensure that an unqualified right of access to all such private property is preserved, at all times. It further posits that there is no residual policy reason for negating that duty. In particularizing that position, the plaintiff submits that:

1. As a combined result of a municipality’s obligation to prohibit interference with the public’s right-of-way over public highways and “plain common sense”, it is reasonably foreseeable that if a municipality impairs the right of a successor in title to property that is located within the municipality, to unqualified access to a public highway that abuts the subject property, harm will result to that property owner. Foreseeability is therefore made out;

2. The requisite degree of proximity to support the existence of the asserted duty also exists in this case because when the City negotiated the SPCA with Home Depot, it knew that its actions would affect the access interests of the owners of the properties abutting Home Depot’s land (which included the plaintiff’s predecessors in title). The City took some steps (albeit unreasonable ones) to preserve access to the subject property when it negotiated the terms of the SPCA. The foregoing circumstances establish “sufficient proximity” between the City’s conduct and the affected rights of the contemporaneous and successive abutting property owners, to warrant the imposition of a private law duty of care.

3. There is no policy reason to negate or otherwise restrict the duty of care that the City owed, particularly because there is no statutory provision which operates to “cut down” that duty (see para. 143 of the plaintiff’s factum).

[234] The plaintiff contends that to discharge its duty, the City was obligated to retain, on behalf of the owners of properties abutting Home Depot’s land, an unqualified right of access or a specific reciprocal easement permitting timely access to those properties. The City acted unreasonably by “giving away a property right which did not belong to [it], at the expense of the abutting property owners, without procuring a clear and unrestricted easement” (see para. 146 of the plaintiff’s factum). The plaintiff’s right to timely access to its own property was impaired because of the unilateral actions of the City “in negotiating away existing access points, and thereby creating a situation where Joseph’s property became land-locked with no guaranteed access, without the knowledge and consent of Joseph’s predecessor in title” (see para. 147 of the plaintiff’s factum).

[235] The plaintiff now asserts that the City specifically breached its duty of care by agreeing to the conditional wording set out in section S-6.(1) of the SPCA, which for the purpose of its claim against the City, the plaintiff submits infers a “right to negotiate access” as opposed to an unqualified right of access to the subject property over Home Depot land. (However, for the purpose of its assertions of liability against Home Depot, the plaintiff posits that the same section of the SPCA unequivocally obliged Home Depot to provide access to the plaintiff when the plaintiff required it, or sooner.)

[236] In response, the City submits that there is no genuine issue requiring a trial that arises from the plaintiff’s “negligent negotiation/negligent failure to preserve access” theory for the following reasons:

1. The allegations and material facts pleaded by the plaintiff in its statement of claim do not disclose a basis (or bases) of liability founded in the City’s alleged negligent negotiation of the SPCA and/or its negligent failure to preserve an unqualified right of access for the benefit of all successors in title to properties abutting the Home Depot property. Until the plaintiff delivered its factum, the City was not aware that the plaintiff intended to allege that at the time it negotiated the Home Depot SPCA in 2007, the City owed a duty of care to the plaintiff as an eventual successor in title to the subject property, that the City then breached. As a result, the City has not had an opportunity to adduce the necessary evidentiary record to address this late breaking asserted basis of liability;

2. Even if the private law duty of care that the plaintiff now asserts was found to exist, the plaintiff has failed to establish the parameters of the requisite standard of care (and/or the City’s breach of that standard) because it has not adduced any expert evidence on the point. The City reasons that when a municipality engages in the process of site plan control, it exercises discretionary powers afforded to it pursuant to the provisions of the Planning Act. This aspect of the plaintiff’s theory of liability necessarily invokes a claim that the City wielded its statutory power in an unreasonable manner. The determination of the applicable standard of care, therefore, requires an analysis of the appropriate balance between the exercise of a municipality’s discretion under the Planning Act (in furtherance of the legislative purposes set out therein) and the impact of the exercise of that discretion on individual private law actors, when determining the bounds of “reasonable municipal conduct”, in all of the circumstances. It submits that the parameters of reasonableness, in the context of that balance is a matter that is beyond the general expected knowledge base of a trier of fact and as such, it ought to be determined with the assistance of expert evidence, of which there is none.

3. The plaintiff has not sustained any losses as a result of the City’s alleged misconduct that are recoverable at law. In other words, the damages claimed by the plaintiff are too remote.

(ii) These Bases of Liability Are Not Adequately Pleaded

[237] In determining this aspect of the motion, I will first address the City’s position that the plaintiff has failed to adequately plead the City’s alleged negligent conduct in the negotiation of the SPCA and/or its failure to preserve the unqualified access rights of potential successors in title to the abutting properties identified in the SPCA, at the time it executed that agreement, in 2007.

[238] There are several bases of liability that the plaintiff advances against the City, through its factum and submissions that, in my view, are not discernable from even an exceptionally generous reading of the statement of claim. Accordingly, the reasons that follow will have further application, as other aspects of the plaintiff’s submissions on this motion are determined.

[239] The City correctly submits that the allegations set out in the statement of claim fail to disclose or support that the plaintiff is asserting the City’s alleged negligence in the negotiation of the SPCA and/or its failure to preserve unqualified rights of access as bases of its liability in this proceeding.

[240] In the statement of claim, the existence of, and parties to, the SPCA and the content of section S-6.(1) are pleaded at paragraphs 6 and 7. At paragraph 13 of the statement of claim, the plaintiff makes allegations with respect to its efforts to secure a reciprocal access agreement in accordance with the terms of the SPCA, together with Home Depot’s alleged breach of those terms. The statement of claim does not contain any allegations that the City engaged in any wrongful conduct, tortious or otherwise, in its negotiation of the terms of the SPCA in general and in failing to preserve an unqualified right of access to the subject property, in particular. Further, there are no allegations of material fact set out in the statement of claim that could be viewed as supporting an assertion of liability against the City founded in the proposition that it owed a private law duty of care to the plaintiff (as a potential successor in title to the subject property), when it negotiated the terms of the SPCA or that it breached the applicable standard of care in that regard.

[241] Instead, in the statement of claim, the City’s negligent misconduct is said to arise from: its misrepresentation, as a matter of fact, that the RAA contemplated by the SPCA existed and was in full force and effect as of December 2009 and subsequently when the plaintiff entered its own site plan control agreement in 2013; and its asserted negligence in its purported or actual release/waiver of Home Depot’s obligation pursuant to the SPCA. That is the extent of the City’s alleged tortious conduct as it relates to the SPCA. Even after applying the greatest of latitude to the content of the statement of claim, it is impossible to ferret out any hint that the plaintiff seeks remedial relief from the City based on unreasonable conduct in its negotiation of the SPCA in 2007, the terms of which the plaintiff pleads it was aware of and relied on, in purchasing the subject property in 2009.

[242] The City correctly submits that sufficient material facts supporting an asserted basis of liability must be pleaded in the statement of claim in order for the plaintiff to assert that basis of liability in the context of the trial of, or interlocutory steps within, the proceeding. Indeed, r. 25.06 (1) of the Rules of Civil Procedure, R.R.O. 1990, Reg.194, mandates that every pleading shall contain a concise statement of the material facts on which the party relies for its claim or defence. There is good reason for that requirement.

[243] Pleadings define the nature and scope of the disputed issues between the parties that require the court’s adjudication. Pleadings also provide notice to the opposite party of the specific case it must meet and/or answer in the litigation, together with the nature and extent of the remedies sought against it (if any). In this case, the statement of claim fails to meet either objective as it relates to the plaintiff’s presently asserted bases of liability arising from the City’s negligent negotiation of the SPCA and its “failure to preserve access”.

[244] An action must be decided within the bounds of the pleadings and the parties to an action are entitled to have their litigated dispute determined on the basis of the issues joined in the pleadings. A defendant is entitled to know, in advance, the case it has to meet and to be afforded a fair opportunity to meet that case. At trial, a finding of liability against a defendant on a basis of liability that was not pleaded against it cannot stand. To find otherwise would deprive the defendant of the opportunity to address the issue through evidence: see Rodaro v. Royal Bank of Canada (2002), 59 O.R. (3d) 74 (C.A.), at paras. 60-63; Place Concorde East Limited Partnership v. Shelter Corporation of Canada (2006), 270 D.L.R. (4th) 181 (Ont. C.A.), at para. 60; Kalkinis (Litigation Guardian of) v. Allstate Insurance Co. of Canada (1998), 41 O.R. (3d) 528 (C.A.), at pp. 533-34; and Vanek v. Great Atlantic and Pacific Co. of Canada (1999), 48 O.R. (3d) 228 (C.A.), at paras. 70-71.

[245] The evidence adduced in the context of the defendants’ summary judgment motions was extensively developed through affidavits, examinations and cross-examinations, in an overall process that was patently time consuming. Yet, certain allegations of liability against the City appear to have made their debut in the plaintiff’s factum, which was delivered shortly before the return of its motion and, of critical import, after all of the evidence for use on the motion was developed and filed. Predictably, and quite understandably, the City asserts that these bases of newly asserted liability were not canvassed during examinations for discovery (which were conducted in 2014) nor was any documentary or affidavit evidence adduced by the City on its summary judgment motion to address these issues (including evidence of the manner in which the SPCA negotiations were conducted and the considerations and deliberations that lead to the SPCA’s final form) because they were not pleaded.

[246] By advancing unpleaded assertions of municipal negligence related to the negotiations of the SPCA, the plaintiff has deprived the City of the opportunity to know the case it had to meet, and the opportunity to fairly respond to that case through evidence, in the context of this motion. I accept that the plaintiff’s approach has resulted in an incomplete evidentiary record on the unpleaded bases of liability it now raises on the motions.

[247] I accept (and find) that the City would be significantly prejudiced if the assertion of an unpleaded basis of liability against it (including the material facts in support thereof), could anchor a finding that a genuine issue requiring a trial exists relating to that basis of liability because a subsequent finding of liability against the defendant on that basis at trial, could not stand.

[248] In the result, the statement of claim, as pleaded does not support causes of action founded in the City’s presently asserted “negligent negotiation of the SPCA” or its presently asserted negligence in failing to preserve an unqualified right to access the subject property through the specific terms of the SPCA. The plaintiff has never sought leave to amend its statement of claim to plead sufficient material facts in support of those bases of liability. Therefore, in my view, no question of fact, law or mixed fact and law related exclusively to those purported bases of liability can inform the determination of whether the City has met its onus on its summary judgment motion. A plaintiff cannot assert an unpleaded basis of liability in the context of a summary judgment motion, where the evidentiary record related to that allegation is incomplete, in order to justify the need for a trial. Had the plaintiff wished to pursue the foregoing bases of liability it ought to have sought leave, at some point, to amend its statement of claim to do so. It did not.

[249] As result of the foregoing, it is unnecessary to determine whether any issue related exclusively to the foregoing bases of liability requires a trial in order to fairly and justly determine the action. Even so, on the available record there are several difficulties associated with the plaintiff’s “negligent negotiation”/“negligent failure to preserve unqualified access” theories, which I will briefly summarize below.

(iii) Other Difficulties With This Aspect of the City’s Asserted Liability

[250] As result of the plaintiff’s failure to properly plead negligent negotiation as a basis of liability against the City, the record with respect to the issue of the existence of the duty of care that the plaintiff presently asserts in that regard, is underdeveloped. The City has not adduced evidence or presented fully informed submissions on the point. Even so, the private law duty of care the plaintiff proposes appears problematic. I will explain.

[251] The parties agree that the existence of a private law duty of care is determined by applying the analytical framework set out in Anns v. Merton London Borough Council, [1978] A.C. 728, (H.L.), as adopted in Kamloops (City) v. Nielsen, [1984] 2 S.C.R. 2, and refined in Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537 (and its companion case) Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562. Generally, the requisite analysis contemplates a two-stage inquiry, the essential elements of which are succinctly expressed at paras. 8-10 of Edwards as follows:

[8] The companion case of Cooper outlines the approach in assessing whether a duty of care will be recognized in a given case. Specifically, Cooper revisits the Anns test and clarifies the express policy components to be considered at each stage.

[9] At the first stage of the Anns test, the question is whether the circumstances disclose reasonably foreseeable harm and proximity sufficient to establish a prima facie duty of care. The focus at this stage is on factors arising from the relationship between the plaintiff and the defendant, including broad considerations of policy. The starting point for this analysis is to determine whether there are analogous categories of cases in which proximity has previously been recognized. If no such cases exist, the question then becomes whether a new duty of care should be recognized in the circumstances. Mere foreseeability is not enough to establish a prima facie duty of care. The plaintiff must also show proximity – that the defendant was in a close and direct relationship to him or her such that it is just to impose a duty of care in the circumstances. Factors giving rise to proximity must be grounded in the governing statute when there is one, as in the present case.

[10] If the plaintiff is successful at the first stage of Anns such that a prima facie duty of care has been established (despite the fact that the proposed duty does not fall within an already recognized category of recovery), the second stage of the Anns test must be addressed. That question is whether there exists residual policy considerations which justify denying liability. Residual policy considerations include, among other things, the effect of recognizing that duty of care on other legal obligations, its impact on the legal system and, in a less precise but important consideration, the effect of imposing liability on society in general.

[Emphasis added.]

[252] Proximity and foreseeability are two aspects of the same inquiry, that is whether the facts disclose a relationship that gives rise to a prima facie duty of care. Not every foreseeable outcome attracts a duty of care. Foreseeability must be grounded in a relationship of sufficient closeness or proximity to make it just and reasonable to impose an obligation on a party to take reasonable care not to injure the other.

[253] A full “Anns/Cooper” analysis is not required in every case. The requisite “close and direct relationship” between the parties can be established if the subject of the analysis falls within a previously established and recognized category of a duty of care or is shown to be analogous to one. In such circumstances a duty of care will exist: see Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63, [2017] 2 S.C.R. 855, at para. 26.

[254] A site plan agreement has been judicially recognized as a planning instrument through which a municipality assures proper planning of the community under the Planning Act: see Simcoe Muskoka Catholic District School Board v. Collingwood (Town) (2007), 39 M.P.L.R. (4th) 21 (Ont. S.C.), at para. 27, quoting Carthy J.A. in Hi-Rise Structures Inc. v. Scarborough (City) (1992), 10 O.R. (3d) 299 (C.A.), at paras. 15-17. There is judicial support for the proposition that public authorities charged with making decisions in the general public interest ought to be free to make those decisions without being subjected to a private law duty of care to specific members of the general public: see Wellington, at para. 44. The plaintiff’s submissions on the existence of a private law duty of care owed to it (as a successor in title) by a municipality engaged in the process of site plan control do not expressly address these considerations.

[255] In its submissions, the plaintiff has also failed to ground its position with respect to proximity in the provisions of the Planning Act, which is the governing statue from which the City derives the site plan control power and discretion, pursuant to which it negotiated the impugned SPCA. The plaintiff’s analysis under the first stage of the Anns test lacks any reference or consideration of the provisions of that Act, including its purposes (as set out in s. 1.1 of that Act), and its provisions related to site plan control (as set out in s. 41 of that Act). Similarly, the plaintiff’s position does not refer to, or consider, the provisions of the City’s site plan control bylaw. These omissions are troubling because the City’s alleged malfeasance is said to have been committed in the exercise of powers under the Planning Act. As a result, the proximity inquiry in this instance requires an analysis of the statutory framework pursuant to which the City exercised any powers while engaged in the alleged tortious conduct, including any duties imposed by the governing statute: see Wellington v. Ontario, 2011 ONCA 274, 333 D.L.R. (4th) 236, at para. 39; and Edwards, at para. 9.

[256] If it was necessary to determine the existence of the duty of care, the plaintiff asserts I would also have some difficulty accepting its submission that it was reasonably foreseeable that harm would be suffered by it (or any successor in title to the subject property) as a result of the negotiated content of the SPCA. I will explain.

[257] The plaintiff held no legal or beneficial interest in the subject property at the time the SPCA was negotiated. The SPCA was registered on title before the plaintiff acquired an interest in the subject property. The SPCA’s registration provided constructive notice of its content to the general public of which the plaintiff was a member. Further, the evidence conclusively establishes that the plaintiff had actual knowledge of the SPCA’s content before it purchased the subject property. Therefore, to the extent that the SPCA limited, impaired, or failed to preserve “unqualified access” to the subject property and/or rendered access to the subject property a matter that was subject to the “whim of the Home Depot”, as presently asserted by the plaintiff, those circumstances were all known to the plaintiff before it acquired title to the subject property.

[258] In the context of the foregoing, I would have difficulty concluding that when it negotiated and executed the SPCA, the City ought reasonably to have foreseen that a subsequent voluntary purchaser of the subject property, with pre-purchase notice and knowledge of the SPCA terms, would suffer harm in the form of consequential financial losses arising from the fact that the post-purchase conditions and circumstances of access that were actually associated with the subject property remained identical to the conditions and circumstances of access that were disclosed by the terms of the SPCA.

[259] Apart from the issue of the existence of the presently asserted duty of care, if it was necessary to determine whether the City breached a duty of care owed to the plaintiff in relation to its negotiation of the SPCA, I would not have found that terms of the SPCA, alone, conclusively evidenced that the City failed to engage in a reasonable course of conduct when it negotiated that agreement, particularly in the absence of an evidentiary record with respect to the specifics of the negotiations that resulted in the term of the SPCA of which the plaintiff now complains.

[260] Instead, I would have accepted the City’s position that the prevailing standard of care applicable to a municipal actor exercising site plan control powers and discretion under the Planning Act, (including negotiating a site plan control agreement), in circumstances similar to those that confronted the City in this instance, is an issue that ought to be addressed through expert evidence (assuming a private law of duty of care was found to exist). The issue of the requisite standard of care in such circumstances, is not a non-technical matter or a matter that an ordinary person may be expected to have knowledge. Further, on the available evidence, I would not have found that the City’s conduct in negotiating the SPCA was so egregious that it evidenced a breach of the applicable standard of care, even without knowing the specific parameters of that standard.

[261] The only “evidence” of a breach of the applicable standard of care relied on by the plaintiff with respect to the City’s negligent negotiation of the SPCA, is the provisions of the SPCA itself. The SPCA provides for a method by which abutting property owners could potentially obtain access over Home Depot’s property. Ms. Vendrasco’s evidence confirms that direct access to the subject property from Division Road was not completely foreclosed to the plaintiff and it was something the City would have considered if the plaintiff insisted on it. In those circumstances, the agreement alone would not, in my view, conclusively evidence negligence, in the absence of expert evidence on the applicable standard.

[262] Through the foregoing, I do not intend to conclusively find that the duty of care that the plaintiff presently asserts in respect of these unpleaded bases of liability does not exist, but rather to express the difficulties I would have in finding that such a duty does exist on the record before me. It remains that the existence of such a duty is not an issue that is properly joined in this proceeding and it ought to be left for determination on a fully developed record, in the appropriate case.

(b) The Newly Asserted Basis of Liability Against the City Alleging It Negligently Failed to Secure Unconditional Access Over Home Depot Land Prior to the Plaintiff Acquiring Title to the Subject Property

(i) The Plaintiff’s Position

[263] Following the plaintiff’s asserted temporal continuum of the City’s alleged negligence, I will now address its position on the motion that the City is liable as a result of its asserted failure to take reasonable action in 2008 and 2009 to compel Home Depot to enter the reciprocal access agreement described in the SPCA, or alternatively, to restore curb cuts to facilitate access to the subject property directly from Division Road.

[264] On the plaintiff’s submission, the evidence indicates that the City knew that a reciprocal access agreement ought to have been completed as early as October of 2008, when its engineer, Jane He, advised representatives of Home Depot, through e-mail correspondence that since the subject property (2025 Division Road) remained “inactive”, its existing granular driveways connecting to Division Road should be restored and Home Depot should affect curb cuts on Division Road to accommodate the presence of those driveways. Alternatively, Ms. He proposed that Home Depot take a “proactive approach” to negotiating the RAA described in the SPCA with the owner of the subject property at that time (Joseph’s predecessor in title). Ms. He advised Home Depot that if an RAA was successfully negotiated, curb cuts would be unnecessary and if not, they would be required.

[265] Ms. He’s correspondence was followed by correspondence from Wade Bondy, the City’s Manager of Rights-of-Way, dated October 20, 2008, in which he characterized the failure of Home Depot to enter into an RAA with Joseph’s predecessor in title (together with its failure to return pre-development access to 2025 Division Road directly from Division via curb cuts adjacent to its existing granular driveways) as a deficiency in the performance of its obligations related to the site. The asserted deficiency remained outstanding at the end of the one-year maintenance period mandated by the terms of the servicing agreement between the City and Home Depot.

[266] As a result, by correspondence dated November 20, 2009, Mr. Bondy advised Home Depot’s representative that in lieu of its performance of its requirement to enter into a reciprocal access agreement under the SPCA with the owner of the subject property, the City intended to retain $20,000 of the letter of credit Home Depot pledged as security for its obligations under the servicing agreement. In exchange, Mr. Bondy purported to release Home Depot from the SPCA’s provisions related to the RAA and advised it that any other future maintenance requirements under the “Development Agreement” would be assumed by the City. Eventually, the City returned the $20,000 letter of credit for cancellation, without an access agreement having been negotiated.

[267] The plaintiff submits that the foregoing narrative illustrates that after the execution of the SPCA in 2007, the City knew that it was required to take active steps to ensure that some form of access to the subject property was established and maintained. It alleges that the City was negligent in failing to ensure that the necessary steps to do so, were undertaken before the plaintiff acquired title to the subject property. It submits that acting reasonably, the City ought to have ensured that one of the two options identified by Ms. He was undertaken before the plaintiff acquired title to the subject property.

(ii) This Basis of Liability is Not Properly Pleaded

[268] In my view, the City correctly submits that this basis of liability has not been adequately pleaded in the statement of claim and accordingly, any issues arising exclusively from this basis of liability ought not to inform the determination of whether a genuine issue requiring a trial exists in this instance. The bases for the City’s asserted liability as disclosed in the statement of claim, do not include any allegations of material fact in support of a cause of action premised on the City’s alleged unreasonable failure to ensure an RAA between Home Depot and the plaintiff’s predecessor in title was successfully negotiated or that curb cuts on Division Road were made to accommodate direct access to the subject property from Division Road.

(iii) Other Difficulties with this Aspect of the City’s Asserted Liability

[269] Further, the totality of the circumstances disclosed by the evidence on the motions militates against the viability of these asserted causes of action. I have already expressed the difficulties I hold with respect to the plaintiff’s contention that the City owed it a private law duty of care, as an eventual titled owner of the subject property, to preserve an unqualified right of access to the subject property while negotiating the terms of the SPCA. My concerns in that regard apply equally to the plaintiff’s claim that the City was under a private law duty of care to ensure that Home Depot and the plaintiff’s predecessor in title negotiated an RAA or curb cuts were made, before the plaintiff acquired title, in order to preserve/restore unqualified vehicular access to the subject property. I will explain.

[270] The plaintiff purchased the subject property with knowledge of the terms of the SPCA. To the extent that the SPCA created an impediment to timely unqualified access to the subject property, it was an impediment of which the plaintiff had knowledge before it voluntarily purchased the property. Similarly, the fact that there were no driveways directly connecting the subject property to Division Road was patently observable prior to the plaintiff’s purchase, as Wayne Joseph confirmed in his evidence. In his evidence, Wayne Joseph also confirmed that prior to purchasing the property no representations were made to the plaintiff by anyone, that access to the subject property would be available directly from Division Road.

[271] Instead, at the time the plaintiff acquired title, the circumstances surrounding access to the subject property were, in fact, the circumstances that were specified in the SPCA that was registered on title to Home Depot’s property. Wayne Joseph’s evidence confirms that the plaintiff was aware of the content of the SPCA and the need to negotiate access to the property through a reciprocal access agreement with Home Depot, when it purchased it.

[272] In the above circumstances and on the available evidence, it would be difficult to accept that it was reasonably foreseeable that a purchaser of the subject property with notice and knowledge of the terms of the SPCA prior to the purchase would suffer harm as a result of the City’s alleged unreasonable conduct that is said to found this basis of liability against it. Without reasonable foreseeability, the imposition of a private law duty of care is not viable.

[273] Further, if it was necessary to determine this basis of liability on its merits to dispose of the motion, the available evidence would lead me to conclude that the steps taken by Ms. He and Mr. Bondy in 2008 and 2009, with respect to their apparent efforts to enforce section S-6.(1) of the SPCA resulted from their misunderstanding of Home Depot’s obligations under the SPCA as distinct from its obligations under the servicing agreement. In that regard, I accept the evidence of Ms. Vendrasco with respect to:

1. The apparent confusion held by Ms. He and Mr. Bondy concerning Home Depot’s obligations pursuant to the SPCA and Home Depot’s obligations under the terms of the servicing agreement.

2. The letter of credit, a portion of which Mr. Bondy purported to withhold, was provided as security for Home Depot’s performance under the servicing agreement and not the SPCA. Further, Home Depot’s performance of section S-6.(1) of the SPCA was not a subject of the performance security required by the terms of the SPCA: see sections S-1 and S-2. There was no basis to enforce section S-6.(1) of the SPCA through any contractual performance security obligation at all.

3. It was contemplated that the access agreement referenced in section S-6.(1) of the SPCA would be negotiated only when the owner of 2025 Division Road was prepared to develop the subject property. That aspect of Ms. Vendrasco’s evidence is consistent with the other available evidence concerning the shared servicing, maintenance and other costs that the owner of 2025 Division Road would ultimately be required to pay to Home Depot in accordance with section S-6.(1). The nature of an abutting property owner’s actual development would impact, at a minimum, the scope of the reconfiguration required to the existing internal roadways on Home Depot land, which in turn, would influence the amount payable to Home Depot as a construction holdback to be held in trust. The evidence of the plaintiff’s own RAA negotiations with Home Depot illustrates that point. Ms. Vendrasco’s evidence about the anticipated timing of the inception of RAA negotiations is also consistent with the content of Rosati’s November 13, 2012 correspondence to the plaintiff that indicates at page 2 that an RAA had not been registered on title to the subject property because “it has not yet been developed”.

4. From a planning perspective, restoring access to the subject property directly from Division Road made little sense, particularly because of the presence of a signalled access intersection in very close proximity to the former access points connecting the subject property directly to Division Road. Ms. Vendrasco’s evidence in that regard is consistent with: the content of the purchaser’s acknowledgment on closing, in which the plaintiff confirmed its knowledge that the City would probably not allow a separate access off Division Road; and Ms. Hengl’s correspondence to the City in June 2013, in which she explained the reasons why the plaintiff did not want access directly from Division Road to the subject property. The latter position was subsequently confirmed by Brad Joseph in his discovery evidence.

[274] Finally, the successful completion of a reciprocal access agreement between Home Depot and the plaintiff’s predecessor in title would necessarily have required the plaintiff’s predecessor in title to make a positive payment to Home Depot on account of, at a minimum, future maintenance and past servicing expense sharing. There is no evidence in the context of these motions that the plaintiff’s predecessor in title was prepared to incur those expenses, in the absence of its active development of the subject property, or that it was prepared to enter into a reciprocal access agreement with Home Depot, at all. It is difficult to envision what steps the City ought reasonably to have taken to compel Joseph’s predecessor in title to enter into an RAA, in the event that it was not otherwise willing to do so.

[275] In any event of the foregoing, the plaintiff was aware that an RAA had not yet been negotiated, before it purchased the property, and it proceeded to purchase the subject property, nonetheless.

[276] Similar to the plaintiff’s negligent SPCA negotiation theory, I decline to make a final determination with respect to whether, in circumstances similar to those in this instance, a municipality owes a private law duty of care to a subsequent purchaser of real property with actual knowledge of the terms of a site plan control agreement that affects access to that property, to preserve/restore an unqualified right of access to property being purchased, before the purchaser acquires any interest in it (or more fundamentally whether a genuine issue requiring a trial on that issue exists). That basis of liability has not been properly pleaded, and correspondingly, the record in that regard is incomplete. The issue of the existence of a private law duty of care in such circumstances ought to be determined in a proceeding in which it is properly pleaded and the record is complete.

(c) The Plaintiff’s Claims that It is Entitled to a Legal and/or Equitable Easement Over Municipal Land

(i) The Plaintiff’s Position

[277] In paragraphs 149 to 152 of its factum, the plaintiff asserts that it is (and was) entitled to an enforceable legal easement over municipal land sufficient to accommodate direct access to the subject property from Division Road.

[278] To support its contention in that regard, the plaintiff asserts, in its factum, that:

1. The City is the owner of the public roadway (Division Road) to which the plaintiff and its predecessor in title had a recognized right of access.

2. The City, without notice, “traded away” the plaintiff’s right of access for a “qualified and conditional right, fraught with uncertainty and delay, for access to an internal roadway belonging to someone else.”

3. The City then purported to “cancel” the existing direct easement or right of access to Division Road.

4. As a result of the foregoing, the City “breached the easement which Joseph’s (or its predecessor in title) enjoyed for direct access to Division Road” and, therefore, the City is liable to provide legal and equitable relief, on the basis of, among other things, proprietary estoppel.

(ii) These Bases of Liability Are Not Pleaded

[279] The plaintiff’s theory of proprietary legal and equitable remedial entitlement as against the City, was not developed in the plaintiff’s submissions. The fundamental factual assertions that are set out in the plaintiff’s factum in support of this claim and enumerated above, do not appear in the statement of claim. The plaintiff did not plead these bases of liability against the City in its statement of claim and as a result, any issue exclusively related to these newly asserted grounds of remedial entitlement cannot result in a finding that a genuine issue that requires a trial exists.

[280] Further, contrary to r. 25.06(9) of the Rules, the plaintiff does not claim any proprietary relief (in the form of “a declaration of an easement over municipal land” or otherwise) against the City in its statement of claim. That form of relief is only claimed against Home Depot and it is restricted to an easement for access as said to be anticipated by section S-6.(1) of the SPCA. Conversely, the remedial claim against the City is limited to “damages from negligence and negligent misrepresentation” and “special damages” (see paragraphs 1(e) and (f) of the statement of claim). The bases of the City’s liability for damages is restricted to pleadings of negligent misrepresentation; negligently and/or unlawfully releasing Home Depot from any obligation it had under section S-6.(1) of the SPCA; negligently failing to notify the plaintiff, in advance, of the waiver of the easement anticipated by section S-6.(1) of the SPCA; and, breach of the site plan agreement made between the plaintiff and the City.

[281] There are no material facts pleaded in the statement of claim to support: a claim in propriety estoppel in relation to direct access to the subject property from Division Road; a claim for an easement over municipal land; or, a claim that the plaintiff was entitled, as a matter of right, to direct access to Division Road, in the context of the City’s previous exercise of its site plan control powers, in accordance with the Planning Act.

(iii) Other Difficulties with this Aspect of the City’s Asserted Liability

[282] Apart from the foregoing, the available evidence on these motions is inconsistent with the bases of liability/entitlement asserted in paragraphs 149 to 152 of the plaintiff’s factum. Contrary to the plaintiff’s position that the City “traded away its rights to access” (seemingly before the plaintiff actually acquired