Court File and Parties

COURT FILE NO.: 45/17 DATE: 2020-06-29

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Allen Dunford, Plaintiff - and- The Corporation of the Township of Otonabee-South Monaghan, Defendant

BEFORE: The Honourable Justice M. L. Lack

COUNSEL: Allen Dunford in person, for the Plaintiff Michael F. Sirdevan Counsel, for the Defendant

HEARD: November 27, 2019

ENDORSEMENT

[1] The defendant, the Corporation of the Township of Otonabee-South Monaghan, has brought a motion under rule 20.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 for an order dismissing all claims in the statement of claim in this proceeding.

Motion under Rule 20.01(3)

[2] Rule 20.01(3) provides that a defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in a statement of claim.

[3] Rule 20.04(2)(a) provides that the court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial.

[4] Rule 20.04(2.1) provides that in making that determination the court shall consider the evidence submitted by the parties and may weigh the evidence, evaluate credibility of a deponent and draw any reasonable inference from the evidence, unless it is in the interest of justice for such powers to be exercised only at a trial.

[5] In Hryniak v. Mauldlin, 2014 SCC 7, the Supreme Court set out the principles and the approach which a court should take in dealing with a motion for summary judgment under rule 20.04.

Nature of the Plaintiff's Claims

[6] In this action, the plaintiff, Allen Dunford, seeks $2,000,000 in damages from the Township for abuse of public office. He also seeks punitive damages, a declaration and related relief.

The Tort Alleged

[7] Abuse of public office is more properly called the tort of misfeasance in public office. The elements of the tort are set out in Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263:

• the public official must have engaged in deliberate and unlawful conduct in his or her capacity as a public officer; and
• the public officer must have been aware both that his or her conduct was unlawful and that it was likely to harm the plaintiff.

[8] In Odhavji, the Supreme Court stated that both elements of the tort are met where the public official acted for the express purpose of harming the plaintiff since a public officer does not have the authority to exercise his or her powers for an improper purpose. In this respect, knowledge of harm alone is not sufficient to make out the tort because public officials must retain the authority to make decisions, which they know will be adverse to the interests of certain members of the public. Rather, for the conduct to fall within the scope of the tort, the official must have intentionally injured a member of the public through conduct that he or she knows to be inconsistent with the obligations of his or her office. There must be an element of bad faith or dishonesty.

[9] As well, a plaintiff must also prove the requirements common to all torts, specifically, that the tortious conduct was the legal cause of his or her injuries and that the injuries suffered are compensable in tort law.

[10] The onus of establishing whether a municipality has acted in bad faith rests with the plaintiff. There is no obligation on a municipality to prove it acted in good faith: Seguin (Township) v. Hamer, 2014 ONCA 108. The standard to be met in establishing bad faith is high and necessitates evidence to demonstrate a municipality has acted in other than the public interest: Municipal Parking Corporation v Toronto (City)

The Allegations in the Statement of Claim

[11] The plaintiff alleges that from 2005 officials of the defendant Township working in that capacity pursued a pattern of conduct in which they exercised bad faith toward him or from which it can be inferred that they did so.

[12] The statement of claim was issued February 27, 2017. It was amended November 7, 2019 and amended again on November 19, 2019. The statement of claim in its amended, amended form does not refer to any events after February 27, 2017. However, in the material filed in response to this motion, the defendant does refer to events after February 27, 2017. I have not considered those events. They are not material, since a statement of claim sets the parameters of materiality.

[13] I will refer to and analyze, in turn, each of the events between 2005 and February 27, 2017 referred to by the plaintiff in his amended, amended statement of claim.

The 2005 Construction

[14] In paragraphs 3 and 4 of the amended, amended statement of claim, the plaintiff states that in 2005 he constructed a house at 3414 Wallace Point Road in the Township. He alleges that the building passed the Ontario Building Code inspection regime. An occupancy permit was issued. The owners moved in. Then the new building inspector Ms. Waldron re-inspected the house. Deficiencies were found. Subsequently, the house was demolished. The plaintiff says that he does not know why. The plaintiff alleges that the re-inspection of the house was attenuated by bad faith toward him on the part of the new building inspector.

[15] The defendant Township filed an affidavit on the motion. It shows that Mr. Dunford along with the Township were both defendants in two lawsuits brought in connection with the construction of the house.

[16] One of the law suits was brought by the couple for whom the house was constructed. They sought damages for construction deficiencies. The second law suit was brought by Tarion Warranty Corporation to recover monies paid or to be paid to the homeowners under the new home warranty. Tarion is the corporation which administers the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. 0.31. The statements of claim in these actions list numerous deficiencies in the construction, including serious structural ones. Tarion estimated that it would cost between $350,000 to $400,000 to correct them. Ultimately, the house was demolished, rather than remediated. Both actions were settled by the Township. A court order was made in each action, the effect of which was that any crossclaims brought by Mr. Dunford against the Township were dismissed.

[17] I find that any cause of action that Mr. Dunford had against the Township in connection with this matter is barred now by the Limitations Act, 2002, S.O. 2002, c. 24 Sched. B, ss. 4 and 5.

[18] Most importantly, what cause(s) of action the plaintiff might have had against the Township in connection with this episode is not set out in either the statement of claim or the plaintiff's affidavit in response to this motion. There are no facts pleaded, which support one. There are also no facts pleaded that would support a finding that Mr. Dunford suffered any loss.

[19] The plaintiff concedes in paragraph 8 of his affidavit dated October 29, 2019 that it is too late for him to bring a claim over events centred on 3414 Wallace. He states the reason he does raise it in the present proceeding:

However, I later came to see these events as the first instances in what developed into a pattern of the Municipality holding me to a different standard than that applied to other municipal residents seeking to develop property.

[20] I fail to see how the fact that a building inspector re-inspected the house in these circumstances could possibly support such an inference.

50 Lots

[21] In paragraphs 3 and 4 of the amended, amended statement of claim, Mr. Dunford alleges that in 2005 and 2006 he proposed a development plan for 50 lots in the Township. He alleges that he was told by a Township official that he would have to secure his own water resource that would ultimately be connected to the municipal system. In his affidavit dated October 29, 2019, at paragraph 10, Mr. Dunford states that provincial policy dictated that he would have to connect his water system to the existing municipally owned system. He alleges in his amended, amended statement of claim that he developed a water resource at a cost of $100,000. Two engineers, employed by him, told him there was "zero chance" of connecting to the Township system as it was then constituted. He sought an assurance from the Township that it would assist him in overcoming the obstacle. The Township did not give him that assurance. His lawyer told him that the Township was under no obligation to make upgrades to its system to accommodate his project. That was the end of the project.

[22] I find that any cause of action that Mr. Dunford had against the Township in connection with this matter is barred now by ss. 4 and 5 of the Limitations Act, 2002.

[23] In any event, what cause of action the plaintiff might have had against the Township in connection with this episode is not set out in either the amended, amended statement of claim or amplified in the plaintiff's affidavit in response to this motion. There are no facts pleaded, which support one. There is nothing to suggest that the Township acted in an illegal manner. I also fail to see how these events could support an inference of targeted malice.

Re-Zoning - Commercial Development

[24] In paragraph 5 and 6 of the amended, amended statement of claim the plaintiff alleges that in the same time frame (2005-2006) he submitted an application to re-zone a portion of his property for commercial development. He alleges that officials of the Township encouraged the application. His application, which was subject to a neighbourhood campaign of resistance, was denied unanimously by the council of the Township. He appealed to the Ontario Municipal Board. The hearing was adjourned. Ultimately, the plaintiff abandoned the appeal.

[25] The affidavit filed on behalf of the Township on the motion established that the application for re-zoning was submitted on June 23, 2008. The Township denied the application on February 11, 2010. Mr. Dunford appealed the decision to the Ontario Municipal Board on March 3, 2010. He transferred the property to a numbered company on October 19, 2010. He withdrew his appeal on August 13, 2013.

[26] I find that there is nothing in the plaintiff's claim or material filed on the motion to support a finding that the decision of the Township was unlawful or even wrong. This matter was before the Ontario Municipal Board which has exclusive jurisdiction to hear and resolve zoning matters in the Province of Ontario. The plaintiff could have pursued it at the time. He did not. I also fail to see, based on the facts alleged, how these events could support an inference of targeted malice.

Property Standards Order

[27] The plaintiff alleges in paragraph 7 of the amended, amended statement of claim that he received a Property Standards Order in 2011 from the Township which indicated that the state of his property violated its Property Standards By-law. The plaintiff took some remedial action. The only point of contention then was wood stored behind the barn. The plaintiff insisted it was firewood and the Township's position was that it was garbage. The plaintiff offered the wood to the public as free firewood. The Township enforced its order and loaded the wood and trucked it away. The plaintiff alleges it was taken to a neighbour to be used as firewood. The plaintiff sued the municipality. Ultimately, the municipality removed the delivery charge from the plaintiff's tax bill.

[28] The affidavit filed on behalf of the Township on the motion established that the Property Standards Order was issued in 2010. Mr. Dunford appealed that order to the Property Standards Committee which rejected his appeal. Mr. Dunford did not appeal the decision of the Committee to the Superior Court of Justice as he could have. The result was that the order became final and binding on him. When Mr. Dunford failed to comply with the order, the Township enforced the order. Mr. Dunford then commenced an action in Small Claims Court (Action 609/10) for damages, but Mr. Dunford abandoned his claim on December 15, 2011.

[29] I find that there is nothing in the amended, amended statement of claim to support a finding that the Property Standards Order was illegal. After the Property Standards Committee upheld the order, the plaintiff could have appealed the decision to the Superior Court of Justice, but he did not do so. In the absence of a further appeal, the order was final.

[30] When the plaintiff failed to comply with the order, the Township enforced it by bringing the property into compliance under s. 15.4(1) of the Building Code Act, 1992, S.O. 1992, c. 23. The plaintiff complains about how it was enforced. He sued the Township in the Small Claims Court over the removal. The plaintiff abandoned that claim and it was dismissed on December 15, 2011.

[31] I fail to see how these events, in the circumstances, could support an inference of targeted malice.

Application for Severance

[32] In paragraph 9 and 10 of the amended, amended statement of claim the plaintiff alleges that he was the victim of prejudicial and vindictive behaviour on the part of the Township in connection with a severance application.

[33] The plaintiff states that he was acting as agent for a property owner on an application to sever property to create three lots. The Township requirements were an application fee of $500, a feasibility study of the water system, a $15,000 retainer and a pre-development agreement. The plaintiff alleges that officials of the municipality would not answer his inquiries about the water system until the requirements had been met.

[34] Mr. Dunford's affidavit sworn October 29, 2019 indicates the feasibility study was obtained first, then the fees and retainer were paid and then a meeting at the Township office took place with nine parties in attendance. He goes on to state:

The upshot of all of this is that I never got the chance to explore the possibility of individual wells with the Municipality, and the lots have since been created after an expense involving water connections that surpass the value of one lot. I contend that the attitude displayed by the Municipality throughout this application could only be properly understood in the context of bad faith and prejudicial treatment of the sort that I am alleging in this claim.

[35] I find that Mr. Dunford's own affidavit shows that he was not the subject of prejudicial treatment. Exhibit B, page 18 to the affidavit shows that a representative of the Township clearly pointed out in an email dated November 9, 2016 to Mr. Dunford that the Township's requirements for severance applications relating to this property and others in the area were set out in a submission previously made to the County. Exhibit B, page 19 shows that the representative also clearly pointed out the reasons for those requirements.

[36] I find that there is no basis for a finding on these facts that the Township acted in bad faith toward Mr. Dunford or the owner. It simply insisted that he follow the proper procedure.

[37] In any event, even if any cause of action existed, it would lie with the property owner and not with Mr. Dunford, who has no standing to make a claim for damages.

Demolition Permit

[38] In paragraphs 11 and 12 of the amended, amended statement of claim, the plaintiff alleges that approximately one week after he began the demolition of a barn (presumably in 2017), the property owner received a notice from a Township By-law Official that a demolition permit was required. One had not been obtained.

[39] I find that the plaintiff has no claim for damages against the Township arising from this event. Any cause of action would rest with the registered owner of the property, not Mr. Dunford who was simply a contractor.

[40] In any event, even if the owner felt that the Building Official was in error in insisting on a demolition permit, she could have appealed the decision to the Superior Court of Justice under the provisions of the Building Code Act, 1992. No such appeal was ever undertaken and therefore no cause of action exists in connection with this event.

[41] There is nothing to suggest on these facts that the Township acted illegally.

Conclusion

[42] For these reasons, I find that the plaintiff has no cause of action arising from any of the circumstances outlined in his amended, amended statement of claim. I also find that no cause of action against the Township for misfeasance in public office (bad faith) arises from any or all the circumstances outlined in the amended, amended statement of claim.

[43] The motion for summary judgment is therefore granted and the plaintiff's claims in this proceeding are dismissed.

Costs

[44] The parties may make written submissions on costs. First, counsel for the defendant shall deliver submissions within 20 days from receipt of this endorsement. Then, within 20 days of receipt of those submissions, the plaintiff shall deliver submissions. Within 5 days of receipt of those submissions, counsel for the defendant may deliver a brief reply. All submissions, with proof of service, are to be filed with the trial coordinator at Peterborough, electronically. The trial coordinator may accept a party's submissions, although out-of-time, with the consent of the other party. When the filing of submissions is complete, the trial coordinator shall forward all of them to me for consideration, as one package.

Released: June 29, 2020