Court File and Parties

COURT FILE NO.: 49/13 DATE: 20190425 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Ian Angus and Daphne Angus, Plaintiffs – and – The Corporation of the Municipality of Port Hope, Defendant

COUNSEL: M. John Ewart, for the Plaintiffs Kristin Muszynski, for the Defendant

HEARD: December 2, 2018

REASONS FOR DECISION Woodley J.

Overview

[1] This dispute between the Plaintiffs, Daphne and Ian Angus, and the Defendant, the Corporation of the Municipality of Port Hope (“Port Hope”), began as a simple issue: Does Port Hope’s Fill By-Law, enacted for the protection of the environment and the safety of the public, apply to the Plaintiffs’ property?

[2] Simple question. Simple answer: Yes.

[3] The dispute was then expanded to include a determination of whether Port Hope’s Fill By-Law fee provisions were ultra vires?

[4] Simple question. Simple answer: Yes.

[5] The fee provisions of the Fill By-Law were determined to be ultra vires and were struck and severed from the Fill By-Law; however, the remaining portions of the Fill By-Law are valid and remain in full force and effect.

[6] The dispute was then further expanded by the Plaintiffs to include whether the actions of Port Hope constituted misfeasance/abuse of public office and whether prosecuting the Plaintiffs in the Provincial Offences Court constituted malicious prosecution.

Issues

[7] The issues to be determined on this motion are as follows:

(a) Is this an appropriate case for determination by motion for summary judgment?

(b) Is there a genuine issue requiring a trial with respect to the Plaintiffs’ claim of malicious prosecution?

(c) Is there a genuine issue requiring a trial with respect to the Plaintiffs’ claim of misfeasance/abuse of public office?

(d) Is there a genuine issue requiring a trial with respect to the Plaintiffs’ claim for punitive and/or aggravated damages?

(e) Is there a genuine issue requiring a trial with respect to the Plaintiffs’ claim for damages arising from the finding that the fee provisions of the Fill By-Law are invalid?

[8] I have determined that this is an appropriate case for determination by motion for summary judgment. I have also determined that with regards to issues (b) to (e) noted above, there is no genuine issue requiring a trial.

Background

[9] Daphne Angus is the registered owner of property that includes a home, an air strip, and an abandoned gravel pit, located in the Municipality of Port Hope (the “Angus property”). Ian Angus is a lawyer and the spouse of Daphne Angus.

[10] The Corporation of the Municipality of Port Hope is the government entity entrusted with regulating the use of property located in the municipality.

[11] In October 2011, Daphne Angus signed an acknowledgement and release in favour of The Ontario Aggregate Resources Corporation (“TOARC”) to rehabilitate the abandoned gravel pit located on the property in order to grow crops on the area and to utilize it for horseback riding and other activities.

[12] In March or April 2012, Ron Warne, Director of Planning Development Services for Port Hope, drafted a Fill By-Law for the Municipality for the environmental protection and safety of the Port Hope population.

[13] The Fill By-Law was created after months of research and consultation with various stakeholders, including the Ganaraska Region Conservation Authority. It is similar to those in effect in neighbouring municipalities such as the Municipality of Clarington.

[14] In May 2012, before the Fill By-Law was enacted, Port Hope published notices in the local papers inviting public comment. The draft Fill By-Law was also posted on the Port Hope website and notice of the initiative was provided to local residents.

[15] In the meantime, in early May 2012, the Plaintiffs met with a member of the Management of Abandoned Aggregate Properties (MAAP), Paul Harnett. This was contemplated by the TOARC acknowledgement and release, in order to review a plan for the remediation of the abandoned gravel pit. At this meeting, Mr. Harnett advised the Plaintiffs that “there wasn’t enough left over material to do much, but he would do his best”. Mr. Harnett further advised that “unfortunately he did not have the budget to bring in the additional material he would like to have”.

[16] A few days following the Harnett meeting, the Plaintiffs were contacted by Ashgrove Holdings Inc. (“Ashgrove”) who proposed to compensate the Plaintiffs to dump clean fill on their property.

[17] The Plaintiffs advised Mr. Harnett of the Ashgrove opportunity and Mr. Harnett determined that he would reschedule the MAAP remediation plan until after the Ashgrove fill had been delivered.

[18] Ian Angus claims that on May 10, 2012, he spoke to Mr. Warne and was advised that no permit or licence was required to accept fill from Ashgrove.

[19] On May 10, 2012, Daphne Angus signed a contract with Ashgrove for delivery of certified clean fill. The terms of the contract indicate that Ashgrove was to pay the Plaintiffs between $200,000 and $250,000 for the placing of the fill. The contract required that the property owner obtain any required municipal permits.

[20] The fill operation with Ashgrove commenced on May 16, 2012. On this date, there was no Fill By-Law enacted in the Municipality of Port Hope that would have required the Plaintiffs to have obtained a municipal permit.

[21] Ashgrove placed 20 loads of fill on the Angus property on May 16, 2012. Between May 16, 2012 and May 28, 2012, Ashgrove placed 100 loads of fill on the property. Between May 29, 2012 and June 14, 2012, Ashgrove placed 189 loads of fill on the property.

[22] Port Hope enacted the Fill By-law on May 29, 2012. The Fill By-Law requires that anyone dumping or placing fill or changing the grade in Port Hope must obtain a permit.

[23] The Plaintiffs continued to accept fill from Ashgrove without applying for, or obtaining, a permit as required by the Fill By-Law.

[24] On May 30, 2012, Ashgrove signed a verification of the contract with Daphne Angus for the importing, placing and grading of several thousand cubic metres of fill on the Angus property. The document was signed by Ian Angus on behalf of Daphne Angus.

[25] On June 7, 2012, Ian Angus signed a similar verification of contract with Ashgrove.

[26] On June 13, 2012, Roy Foster, the Roads Foreman for Port Hope, came upon five dump trucks parked on the road near the Angus property. Two of the trucks were loaded with fill. Mr. Foster followed the trucks onto the Angus property and observed them dump fill that was being pushed around the site by a bulldozer.

[27] Mr. Foster made enquiries with Port Hope to determine what was known. Mr. Foster was advised that there was a Fill By-Law in place and an application needed to be completed. Mr. Foster spoke to Ian Angus and advised him that he needed to complete an application. Ian Angus filled out an application under the Fill By-Law that day.

[28] The application dated, June 13, 2012, listed Daphne Angus as the owner and Ian Angus as the applicant. The application stated that “this project pre-exists the By-Law requiring this permit – commenced summer 2011 and ongoing pursuant to current contracts since May 16, 2012”.

[29] On June 14, 2012, Mr. Foster returned to the Angus property with Peter Angelo, former Director of Works and Engineering for Port Hope. They observed numerous trucks on the site. Mr. Angelo took several videos of the activities. Following this, Mr. Angelo called Ian Angus to discuss the application form. Ian Angus advised Mr. Angelo that he believed the Angus property was exempt from the Fill By-Law because the project pre-dated the by-law and because he had a permit from TOARC. Mr. Angelo advised that he had spoken to TOARC and that no such permit existed. Ian Angus confirmed his opinion that he did not need to comply with the Fill By-Law and that the operation would last three to four months. Mr. Angelo made notes on the fill permit application during his conversation with Ian Angus. There is no reference to the fee provisions of the By-Law in these notes.

[30] Port Hope took steps to confirm with the Ministry of Natural Resources that there was no licensed quarry or pit at the Angus property.

[31] The fill operation at the Angus property continued without a complete application being submitted to Port Hope and on June 20, 2012, Mr. Angelo issued an Order to Discontinue Activity requiring the Plaintiffs, Ashgrove and others, to cease fill operations until a permit was obtained under the Fill By-Law. The fill operation at the Angus property stopped at this time.

[32] Mr. Angelo wrote to the Plaintiffs on August 22, 2012, to explain what was required for the Fill By-Law application. He received no response.

[33] On November 13, 2012, Mr. Angelo issued a Stop Work Order under the Fill By-Law to the Plaintiffs. The work order required the Plaintiffs provide certain information to Port Hope regarding the fill operation, including certification that the fill brought onto the Angus property was not contaminated.

[34] Mr. Angelo also laid charges against the Plaintiffs under the Provincial Offences Act, R.S.O. 1990, c. P.33 (the “POA”), for the fill operation activities, contrary to the Fill By-Law, that took place after the Fill By-Law was enacted, for: (a) placing or dumping fill without a permit; (b) failing to remove fill and restore the grade of the land; and (c) causing or permitting the alterations of the grade of the land without a permit.

[35] The deadline for the work order was February 1, 2013. The information required by the work order was not provided to Port Hope by the deadline or anytime following. On March 18, 2013, Mr. Angelo laid charges against the Plaintiffs for failing to comply with the work order.

Summary of Proceedings: Provincial Offences Court and Superior Court of Justice

[36] The first appearance on the failure to comply with the November 13, 2012, work order charges was February 6, 2013. The matter was adjourned to March 6, 2013, and then, to April 17, 2013.

[37] The first appearance on the March 18, 2013, work order charges was April 17, 2013. At that court appearance, all the POA charges were scheduled for a pre-trial on June 5, 2013.

[38] On May 30, 2013, the Plaintiffs issued the within Statement of Claim in the Superior Court of Justice seeking, amongst other relief, a declaration that the Fill By-Law did not apply to the Angus property.

[39] The June 5, 2013, POA pre-trial was re-scheduled for September 25, 2013, due to the issuance of the Statement of Claim in this Court, the Superior Court of Justice.

[40] Due to inadvertence, Port Hope did not defend the Statement of Claim issued by this Court and was noted in default on August 13, 2013.

[41] On August 30, 2013, an ex parte judgment was signed by Gunsolus J. declaring that the Fill By-Law did not apply to the Angus property.

[42] On September 16, 2013, Port Hope became aware of the default judgment and prepared a motion to set it aside.

[43] On September 25, 2013, the POA pre-trial was held. Following the pre-trial, the Justice of the Peace noted that a November 2012 Information had not been signed by the issuing Justice and was quashed.

[44] As the Plaintiffs had obtained default judgment that the Fill By-Law did not apply to the Angus property, the Justice of the Peace stayed the POA charges against the Plaintiffs. Port Hope initiated an appeal of the stay order.

[45] Port Hope attended at this Court to set aside the default judgment. The motion was granted by O’Connell J. whose decision was released on June 30, 2014.

[46] On July 16, 2014, the Plaintiffs obtained a consent Order from this Court staying the POA charges pending determination of the applicability of the Fill By-Law to the Angus property.

[47] On July 30, 2015, the Plaintiffs brought a summary judgment motion in this Court seeking a declaration that the Fill By-Law did not apply to the property.

[48] At the hearing on July 30, 2015, the Plaintiffs sought and were granted leave to amend their Statement of Claim to seek a declaration that the fee provisions of the Fill By-Law were ultra vires.

[49] On November 12, 2015, I released my decision on the July 30, 2015 motion and held that the Fill By-Law applies to the Angus property: Angus v. Port Hope (Municipality), 2015 ONSC 6974, 47 M.P.L.R. (5th) 283.

[50] On November 16, 2015, the Plaintiffs brought a second motion for partial summary judgment seeking a declaration that the fee provisions of the Fill By-Law were ultra vires. I heard this motion on November 16, 2015.

[51] On December 11, 2015, I ordered Port Hope to file further supplementary materials to address the issue of nexus between the fees charged and the administration costs: Angus v. Port Hope (Municipality), 2015 ONSC 7788, 47 M.P.L.R. (5th) 302.

[52] On June 14, 2016, I released my decision finding that the fee provisions of the Fill By-Law were ultra vires and severed from the remainder of the Fill By-Law. With the exception of the fee provisions, it remained in full force and effect: Angus v. Port Hope (Municipality), 2016 ONSC 3931, 57 M.P.L.R. (5th) 170.

[53] Ultimately, the Fill By-Law applied to the Angus property and with the exception of the fee provisions, was legally valid. Consequently, the stay of proceedings of the POA charges was no longer required.

[54] On September 22, 2016, Jennifer Savini, counsel retained by Port Hope, attended the Provincial Offences Court and prepared new summonses on the original Informations, except for the quashed November 13, 2012 charges. The summonses were issued by Justice of the Peace Le Blanc, returnable November 16, 2016.

[55] On October 4, 2016, Ms. Savini wrote to counsel for the Plaintiffs to provide notice of the November 16, 2016 date for the POA charges and the POA proceedings were adjourned to December 7, 2016.

[56] Following the November 16, 2016 POA proceeding, counsel for Port Hope reached a resolution with Ashgrove that resulted in Ashgrove pleading guilty to placing or dumping fill or topsoil without a permit under the Fill By-Law. The guilty plea was entered on February 8, 2017.

[57] On March 23, 2017, a pre-trial conference was held on the POA charges. Trial dates were scheduled for October 16, 2017 and October 24, 2017.

[58] On October 16, 2017, the Plaintiffs brought a successful motion under s. 11(b) of the Canadian Charter of Rights and Freedoms on the basis that their right to a trial within a reasonable time had been breached: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. Justice of the Peace Mariasine granted the motion and stayed the POA charges pursuant to s. 24(1) of the Charter.

[59] Ms. Savini attested that Port Hope commenced the POA proceedings against the Plaintiffs on the basis of undisputed evidence that:

(a) fill was being brought onto the Angus property;

(b) there was no permit issued with respect to the fill brought onto the Angus property; and

(c) the Stop Work Order issued to the Plaintiffs by Port Hope under the Fill By-Law was not complied with.

[60] In the summer of 2018, the Plaintiffs amended their claim to allege further claims against Port Hope, including malicious prosecution and misfeasance/abuse of public office.

[61] Following the second amendment and prior to the hearing of the within motion, the Plaintiffs withdrew their claim for damages associated with Port Hope placing fill on the Plaintiffs’ property in 2007, a claim contained in the original action. The withdrawal is subject to Port Hope’s ability to seek costs for defending that aspect of the claim.

[62] Port Hope brings the within motion for summary judgment alleging that there is no genuine issue requiring a trial with respect to any of the remaining claims in this action. Port Hope submits that this Court has enough information to grant summary judgment in favour of Port Hope because there is no genuine issue requiring a trial with respect to the Plaintiffs’ claim of malicious prosecution, misfeasance/abuse of public office, punitive and/or aggravated damages, and damages arising from the finding that the fee provisions of the Fill By-Law are invalid.

Review of the Law and Analysis

(a) Is Summary Judgment Available in the Present Case?

[63] Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, outlines when a court may grant summary judgment. In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada stated that Rule 20 was amended to improve access to justice. The reforms changed the test for summary judgment from whether a case presents “a genuine issue for trial” to whether there is a “genuine issue requiring a trial”: at para. 43.

[64] The new powers in Rule 20 allow motion judges to weigh evidence, evaluate credibility, draw reasonable inferences, and call oral evidence. These new powers expand the number of cases in which there will be no genuine issue requiring a trial, thereby establishing that a trial is not the default procedure and eliminating the presumption of substantial indemnity costs against a party that brings an unsuccessful motion for summary judgment.

[65] In Hryniak, at para. 66, Karakatsanis J., writing for the court, laid out the test to apply when determining whether a summary judgment motion may be granted:

On a motion for summary judgment under Rule 20.04, 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. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). 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 new powers under Rules 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. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[66] In determining whether there is a genuine issue requiring a trial, the Court of Appeal for Ontario in Hryniak suggested that “summary judgment would most often be appropriate when cases were document driven, with few witnesses and limited contentious factual issues, or when the record could be supplemented by oral evidence on discrete points”: at para. 48.

[67] While the Supreme Court affirmed that the Court of Appeal’s suggestions are helpful observations, the Court directed that it should not be taken as delineating firm categories of cases where summary judgment should and should not apply. Summary judgment may be appropriate in a complex case with a voluminous record if there is no genuine issue requiring a trial. The Supreme Court further held that a case where there is no genuine issue requiring a trial will be a case “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”: Hryniak, at para. 49.

[68] When summary judgment allows the judge to find the necessary facts and resolve the dispute, proceeding to trial is generally not proportionate, timely, or cost effective. Alternatively, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. The focus is not what kind of evidence could be adduced at trial, but rather, whether a trial is required. The evidence simply must be such that I am confident that I can resolve the dispute fairly and justly.

[69] In the present case, I find that there is no practical difference between the parties’ submissions regarding this issue. Both properly rely upon the test as set out by the Supreme Court in Hryniak. There is a great deal of evidence before me and I find that the evidence submitted is sufficient to (1) allow me to make the necessary findings of fact; and (2) allow me to apply the law to the facts. Based on the facts before me, I find that summary judgment is a proportionate, more expeditious and less expensive means to achieve a just result.

[70] I accept the Plaintiffs’ submission that it is open to the court to make a finding adverse to the moving party and grant summary judgment in favour of the Plaintiff. No other logical conclusion can be reached. If I am able to determine the issues in favour of the Defendant on the facts before me, then I am equally able to determine the issues adversely as against the Defendant.

(b) Is there a genuine issue requiring a trial with respect to the Plaintiffs’ malicious prosecution claim?

[71] The Supreme Court of Canada in Kvello v. Miazga, 2009 SCC 51, [2009] 3 S.C.R. 339, at paras. 53-59, confirmed that in order to succeed in an action for malicious prosecution a plaintiff must prove the following four elements:

i. the proceeding must be initiated by the defendant; ii. the proceeding must be terminated in favour of the plaintiff; iii. the defendant must have had no reasonable and probable cause to initiate the proceeding; and iv. the defendant acted with malice.

[72] The first two elements are answered as follows: (i) the POA proceedings were initiated by the Defendant, Port Hope; and (ii) the POA proceedings terminated in favour of the Plaintiffs. This second element, however, is subject to the proviso that the POA proceedings were stayed as a result of delay pursuant to s. 11(b) of the Charter. Thus, there was no adjudication of the proceedings on the merits. Although the result favours the Plaintiffs, the result does not reflect any determination of the merits of the case: Kvello, at para. 54. This is not necessarily determinative of the second element, but given my findings with respect to elements three and four, there is no need to delve further into this element.

[73] The third element requires the Plaintiff prove the absence of reasonable and probable cause.

[74] The POA proceedings were commenced against the Plaintiffs after they failed to obtain a permit for a fill operation that pre-dated the enactment of the Fill By-Law.

[75] The Plaintiffs submit that: (i) the fill operation commenced on May 10, 2012, prior to enactment of the Fill By-Law and the Fill By-Law does not have a retroactive application; and (ii) the Fill By-Law does not apply to the Angus property due to the presence of the aerodrome and the gravel pit. It is their position that because the fill operation pre-dated the enactment of the Fill By-Law, and because they claimed to have a valid permit for restitution of the property from TOARC when the POA proceedings were commenced, Port Hope could not have had reasonable or probable cause to initiate.

[76] It is well established that an inquiry into reasonable and probable cause comprises both a subjective and an objective component such that for grounds to exist “there must be both actual belief on the part of the prosecutor and that belief must be reasonable in the circumstances”: Kvello, at para. 58, citing Nelles v. Ontario, [1989] 2 S.C.R. 170 (S.C.C.) at p. 193.

[77] The standard of belief that forms a prosecutor’s decision to initiate or continue a prosecution has been defined as an honest belief in the guilt of the accused that the person charged was probably guilty. This standard of belief is commonly referred to as the “probable guilt” standard. Reasonable and probable cause concerns a prosecutor’s professional opinion.

[78] The rationale of a tort action for damages for malicious prosecution is that the court’s process has been abused by wrongfully invoking the law on a criminal charge. The tort is restricted, however, to ensure that parties can be brought to justice without making prosecutors fear an action for damages if a prosecution fails.

[79] A plaintiff will succeed on the third element by showing either an absence of subjective belief or an absence of objective reasonable grounds: Kvello, para. 70. The third part of the test turns on the objective assessment of reasonable and probable cause. Unlike the question of subjective belief, which is a question of fact, the objective existence or absence of grounds is a question of law to be decided by the judge: Nelles, at p. 193.

[80] If the court concludes on the basis of circumstances known to the prosecutor at the relevant time that reasonable and probable cause existed to commence or continue a criminal prosecution from an objective standpoint, the criminal process was properly employed and the inquiry need go no further: Kvello, para. 75.

[81] In carrying out the objective assessment, care must be taken to retroactively review the facts known to the prosecutor at the relevant time, when the decision to initiate or continue the proceeding was made. If a court determines that no objective grounds for the prosecution existed at the relevant time, the court must next inquire into the fourth element.

[82] In the present case, Mr. Angelo was the Director of Works and Engineering for the Municipality of Port Hope and the party who signed the Stop Work Order to discontinue activity, issued on June 20, 2012. Mr. Angelo also swore the Informations that he had reasonable and probable grounds to believe and did believe that:

(a) Information Sworn November 13, 2012:

i. Count 1: that Ian Angus between the 30th day of May, 2012 and the 25th day of June, 2012, at the Angus property did place or dump fill or topsoil without a permit issued by the Director of Works & Engineering Services pursuant to section 5 of the Fill By-Law and did commit an offence contrary to sections 2.1 and 10.5 of the By-Law;

ii. Count 2: that Ian Angus between the 30th day of May, 2012 and the 16th day of October, 2012, at the Angus property placed or dumped fill or caused or permitted fill to be placed or dumped without a permit issued by the Director of Works & Engineering Services pursuant to section 5 of the Fill By-Law and did fail to forthwith remove such fill and restore the existing grade of the land and thereby did commit an offence contrary to sections 10.1 and 10.5 of the By-Law; and

iii. Count 3: that Ian Angus between the 30th day of May, 2012 and the 16th day of October, 2012, at the Angus property altered the grade of land or cause or permitted the alteration of the grade of land without a permit issued by the Director of Works & Engineering Services pursuant to section 5 of the Fill By-Law and did fail to forthwith restore the land to its original condition and thereby did commit an offence contrary to sections 10.3 and 10.5 of the By-Law.

(b) Information Sworn March 18, 2013:

i. that Daphne Angus between the 2nd day of February, 2013 and the 6th day of March, 2013, at the Angus property did fail to comply with a Work Order issued on November 13, 2012, pursuant to section 445 of the Municipal Act, 2001, S.O. 2001, c. 25, as amended and sections 9.1 and 10.2 of the Fill By-Law and did thereby commit an offence contrary to section 10.5 of the By-Law; and

ii. that Ian Angus between the 2nd day of February, 2013 and the 6th day of March, 2013, at the Angus property did fail to comply with a Work Order issued on November 13, 2012, pursuant to section 445 of the Municipal Act, 2001, S.O. 2001, c. 25, as amended and sections 9.1 and 10.2 of the Fill By-Law and did thereby commit an offence contrary to section 10.5 of the By-Law.

[83] In this case, Mr. Angelo appears to be the “prosecutor” relative to the initial POA proceedings. To support their position that reasonable and probable cause existed to commence the POA proceedings, Port Hope filed the November 20, 2012 Order and the Informations sworn by Mr. Angelo that initiated the POA proceedings against the Plaintiffs.

[84] Port Hope also filed further supporting material including:

(a) an affidavit sworn by Peter Angelo on November 26, 2013 and the exhibits attached thereto;

(b) the transcript from Mr. Angelo’s cross-examination on that affidavit on December 18, 2013; and

(c) the Defendant’s Disclosure Brief relating to the POA charges against the Plaintiffs.

[85] The evidence filed on the motion overwhelmingly supports a finding that Mr. Angelo held both a subjective and an objective “honest belief” that the Plaintiffs were “probably guilty”. In other words, the evidence established that Mr. Angelo honestly believed that the Plaintiffs were placing fill and/or altering the grade of the land without a permit as required by the Fill By-Law.

[86] The information provided on the motion confirms that Mr. Angelo enquired whether the Plaintiffs had a “permit” from TOARC and may be exempt. In fact, Mr. Angelo found that the Plaintiffs had no such permit and were not exempt. The evidence establishes that Mr. Angelo was assisted in the drafting of the Order and Informations by Port Hope’s legal counsel. Moreover, an inference can be drawn that Mr. Angelo obtained legal advice before signing the documents that instituted the POA proceedings.

[87] It is clear on the face of the record that both subjective and objective grounds existed to initiate the proceedings.

[88] As for the grounds that existed to continue the proceedings, the affidavit of Ms. Savini detailed that the stay of the POA charges was no longer necessary once this Court ruled that the Fill By-Law applied to the Angus property and that the Fill By-Law was valid except for the fee provisions.

[89] On September 22, 2016, Ms. Savini attended the Provincial Offences Court and prepared new summonses on the original Informations, except for the quashed November 13, 2012 charges and had the summonses issued by Justice of the Peace Le Blanc.

[90] The release of the stay of the POA proceedings was appropriate at this time. The fact that Port Hope did not seek to issue summonses relating to the charges that had been quashed was also appropriate.

[91] In the circumstances, I find that the actions of the Defendant Port Hope, both through their employee Mr. Angelo and their counsel Ms. Savini, were appropriate and based on subjective and objective evidence that establishes reasonable and probable cause.

[92] The Plaintiffs claim of malicious prosecution fails on this ground – the third element.

[93] Had the Plaintiffs been able to prove the absence of reasonable and probable cause, the claim would still fail because there is no evidence that Port Hope acted with malice. Malice requires the Plaintiffs prove that the prosecutor wilfully perverted or abused the process: Kvello, para. 80.

[94] There is simply no evidence that Port Hope, or any of its employees, including Mr. Angelo and Ms. Savini, ever wilfully perverted or abused the process. I find that there is no evidence that Port Hope, or any employee responsible for prosecution of the POA proceedings acted with “improper purpose” evidencing malice. Indeed, the evidence supports a finding that Port Hope cooperated with the Plaintiffs on adjournments and the stay to allow the Plaintiffs to pursue their various defences to the POA charges in this Court. Had Port Hope sought a waiver of any s. 11(b) delay prior to consenting to the stay of the POA proceeding, the result of those proceedings may have been quite different.

[95] The Plaintiffs claim of malicious prosecution also fails on the fourth element. As I find that the Plaintiffs’ claim of malicious prosecution fails, so does the Plaintiffs’ claim for payment of their costs associated with defending the POA proceedings.

(c) Is there no genuine issue requiring a trial with respect to the Plaintiffs’ claim of misfeasance/abuse of public office

[96] As noted by the Supreme Court of Canada in Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, at para. 32, the tort of misfeasance/abuse of public office is an intentional tort with two distinguishing elements as follows:

i. deliberate unlawful conduct in the exercise of public functions; and ii. awareness that the conduct is unlawful and likely to injure the plaintiff.

[97] In the case of Thirsty’s Bar and Grill v. Waterloo (Regional Municipality), 14 M.P.L.R. (3d) 207 (ON SC), the Defendant brought a motion seeking summary judgment against the Plaintiff asserting that there was no genuine issue for trial. The Plaintiffs alleged bad faith and were claiming damages against the municipality for enforcing a non-smoking by-law. The court considered whether liability would be visited upon a legislature where legislation is found to be constitutionally invalid. Reilly J., at para. 17, held that a tort claim in damages cannot succeed with respect to the enforcement of a by-law unless the Plaintiff is able to show bad faith on the part of the Defendant.

[98] The court must pay considerable deference to a municipal council with respect to its right to enact a by-law, particularly where the by-law is passed pursuant to specific enabling legislation. The court must respect the responsibility of elected municipal bodies to serve the people who elected them and exercise caution to avoid substituting their views of what is best for the citizens of those municipal councils: Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231, at para. 244.

[99] In dealing with an allegation of bad faith, Laskin, J.A. (as he then was), in Equity Waste Management of Canada v. Halton Hills (Town) (1997), 35 O.R. (3D) 321 (C.A.), at para. 68, directed as follows:

[I]n passing the by-law, the Town was exercising a legislative function, not a judicial function. The councillors acted entirely properly in taking the views of their residents into account before deciding to suspend development in the Corridor. As McLachlin, J. said in Shell Canada Products Ltd. v. Vancouver (City), supra, at p. 28:

The elected members of Council are discharging a statutory duty. The rights to exercise that duty freely and in accordance with the perceived wishes of the people they represent is vital to local democracy.

I acknowledge that appeasing a group of residents out of self-interest may support a finding of bad faith. But such cases must be rare. A court should not be quick to find bad faith because members of a municipal council, influenced by their constituents, express strong views against a project…The respondents bear the onus of proving bad faith, and on this record I am not satisfied that they have done so. They have not shown that most, if not all, of the councillors acted other than in the public interest in voting for the By-law.

[100] There is no evidence on the record that would support a finding that Port Hope enacted the Fill By-Law in bad faith. The goal of the Fill By-Law was the protection of the environment and the safety of its residents. The Fill By-Law is not controversial and most municipalities already had a Fill By-Law in place. Frankly, given the history of contamination in the Port Hope area I am surprised that a Fill By-Law had not been enacted decades prior to May 29, 2012.

[101] As for the “fee issue”, again there is no evidence that would support a finding that Port Hope acted in bad faith. The provisions of the Fill By-Law apply equally to all residents of Port Hope. The fact that the fee provisions were found to be ultra vires does not support the notion that Port Hope enacted the Fill By-Law in bad faith.

[102] There is no evidence that Port Hope enacted the Fill By-Law in response to the Plaintiffs’ fill operation. The evidence demonstrates that Port Hope had been considering the Fill By-Law in advance of any knowledge of the Plaintiffs’ operation and took steps to inform residents.

[103] There is no evidence that Port Hope displayed a deliberate intention to cause the Plaintiffs harm. The Fill By-Law applies equally to all residents – without exception. Based on the evidentiary record, I find that there is no genuine issue requiring a trial with respect to the Plaintiffs’ claim of misfeasance/abuse of public office.

(d) Is there a genuine issue requiring a trial with respect to the Plaintiffs’ claims for punitive/aggravated damages?

[104] Punitive damages are punitive in nature and may only be imposed in circumstances where the conduct giving rise to the cause for complaint is of such nature that it merits punishment: Vorvis v. Insurance Corp. of British Columbia, [1989] 1 S.C.R. 1085, at para. 50.

[105] Aggravated damages are awarded to compensate for aggravated damage. Aggravated damages take into account intangible injuries and generally augment damages assessed under the general rules relating to the assessment of damages: Vorvis, at paras. 14-16.

[106] In the present case, there is neither a cause of action plead that could establish a claim for aggravated or punitive damages, nor is there any evidence that Port Hope’s conduct in enacting the Fill By-Law and/or in prosecuting the Plaintiffs under the Fill By-Law that would merit any damages, let alone punitive or aggravated damages.

(e) Is there a genuine issue requiring a trial with respect to the Plaintiffs’ claim for damages arising from the finding that the fee provisions of the Fill By-Law are invalid.

[107] As previously noted, the case of Thirsty’s Bar and Grill, involved Plaintiffs alleging bad faith and damages against a municipality for enforcing a non-smoking by-law. In that case, the court considered whether liability would be visited upon a legislature where legislation is found to be constitutionally invalid. Reilly J. held that a tort claim in damages cannot succeed with respect to the enforcement of a by-law unless the Plaintiff is able to show bad faith on the part of the Defendant. The principles outlined by Laskin J.A. in Equity Waste Management, and summarized above at para. 99 of this decision are applicable to this analysis.

[108] There is no evidence on the record that would support a finding that Port Hope enacted the Fill By-Law, including the fee provisions of the Fill By-Law, in bad faith. The Fill By-Law was enacted for the protection of the environment and the safety of its residents and in my opinion, long overdue.

[109] The Plaintiffs seek general damages from Port Hope due to the fact that the fee provisions of the Fill By-Law were ultimately determined to be ultra vires. The Plaintiffs also seek damages due to their alleged inability to pursue a contract to accept fill for which they seek compensation.

[110] With respect to the issue of general damages, in order to consider such an argument, the Plaintiffs would have to prove that they properly completed an application to obtain a permit and submitted all required accompanying material to Port Hope for consideration. The Plaintiffs did not provide such evidence nor is such evidence available.

[111] The Plaintiffs are required, as are all other residents of Port Hope, to fully complete the Fill By-Law application and submit the appropriate and required supporting documentation. It is clear from the evidentiary record that the Plaintiffs only partially completed a Fill By-Law application permit. They did not provide an updated application nor did the Plaintiffs file the required documents in support of the application for a permit. Since there is no evidence that the Plaintiffs ever completed the documentary portion of the application process, the Plaintiffs have no claim to damages against Port Hope for failure to issue a permit.

[112] In the circumstances, and based on the evidentiary record, I find that there is no genuine issue requiring a trial with respect to the Plaintiffs’ claim for damages arising from the finding that the fee provisions of the Fill By-Law are invalid.

Conclusion

[113] In accordance with the Reasons for Decision herein, I hereby Order as follows:

(a) The Defendant’s motion for summary judgment is granted.

(b) All remaining claims of the Plaintiffs as against the Defendant Port Hope be and are hereby dismissed.

(c) If the parties are unable to agree upon costs, the Defendant shall have 45 days from the date herein to file costs submissions. The Plaintiffs shall have 65 days from the date herein to respond. The Defendant’s reply, if any, shall have 90 days from the date herein to serve and file any reply. The cost submissions, response, and reply shall not exceed three pages in length – and shall attach bills of costs. The parties shall be entitled to vary the time periods relating to the filing of costs submissions on consent and shall inform the court in writing of any amendments to the timing of the submissions.

Woodley, J. Released: April 25, 2019

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Ian Angus and Daphne Angus, Plaintiffs – and – The Corporation of the Municipality of Port Hope, Defendant REASONS FOR JUDGMENT Woodley, J. Released: April 25, 2019