BARRIE COURT FILE NO.: CV-14-1104

DATE: 20200129

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

DON JERRY and ALYANGE HOLDINGS INC.

Plaintiffs

– and –

THE CORPORATION OF THE CITY OF BARRIE, ALEX NUTTALL, STEPHEN NAYLOR, RICHARD FORWARD and ROSS COTTON

Defendants

V. Krkachovski and D. Elmaleh, for the Plaintiffs

J.L. Hunter and J.J. Martin, for the Defendants

HEARD: November 20, 22, 24, 26, 2019

REASONS FOR DECISION

MULLIGAN J.:

[1] Don Jerry and his company Alyange Holdings Inc. (Jerry) commenced an action against the Corporation of the City of Barrie (Barrie), Alex Nuttall, Stephen Naylor, Richard Forward and Ross Cotton. The claim against Alex Nuttall was previously dismissed. The remaining three Defendants were, at all relevant times, employees of the City of Barrie. Mr. Jerry claims damages against these Defendants for misfeasance in public office and intentional and unlawful interference with economic relations.

[2] For reasons that follow, the plaintiffs’ claim is dismissed.

[3] This four-day trial began on November 20, 2019. Mr. Jerry gave evidence on his own behalf and called as witnesses a Barrie resident, Peter Heida; a Rogers Communications Inc. employee, Jay Pellerin; and a Rogers Communications Inc. subcontractor, Dwayne Rosenberg.

[4] The three remaining Defendants then employees of the City of Barrie, gave evidence at trial. Richard Forward (Forward), was at the time, General Manager; Stephen Naylor (Naylor) was Director of Planning Services; and Ross Cotton (Cotton) was a policy planner. Michael Lang, of Industry Canada (IC) also gave evidence.

[5] I will review the evidence of the witnesses in these Reasons. The dispute can be briefly described as follows.

[6] Mr. Jerry is a real estate broker and developer. He owned a vacant lot in the City of Barrie and entered into negotiations with Rogers Communications Inc. (Rogers) to construct a 25-metre cell tower on a portion of his land at 213 Minet’s Point Road. Rogers did not proceed with the project. Jerry submits that it was the misfeasance and the unlawful interference of the City of Barrie and these named Defendants that caused Rogers to abandon negotiations with Mr. Jerry.

The Regulatory Framework

[7] Before considering the evidence in detail, it is helpful to review the regulatory framework that cell phone providers and municipalities were operating under at the time, in the Spring of 2014. It is not disputed that Industry Canada has exclusive authority to grant licenses for cell phone towers. However, in certain situations, land use authorities (LUAs), such as municipalities like the City of Barrie, have a role to play and can provide input to Industry Canada, as a commenting authority.

[8] Exhibit 1 was a Joint Book of Documents. The following cell phone tower guides and references were discussed in evidence by some of the witnesses, specifically, Michael Lang from Industry Canada, and Ross Cotton, a City of Barrie planner.

(a) Industry Canada (IC) Guide to Assist Land-use Authorities in Developing Antenna Siting Protocols (2008 Guide);

(b) Industry Canada’s Frequently Asked Questions, 2011;

(c) Industry Canada’s Communications and Broadcasting Antenna Systems CPC, May 2012;

(d) Industry Canada’s Consultation on Amendments to Industry Canada’s Antenna Tower Siting Procedures, February 2014 (Consultation Paper);

(e) Federation of Canadian Municipalities (FCM) Antenna System Siting Protocol Template;

(f) The City of Barrie’s Role;

(g) City of Barrie Protocol for Consideration of Telecommunication Facilities, August 2012 (Barrie Protocol);

(h) City of Barrie Telecommunication Facility Application Form (Barrie Application);

(i) City of Barrie Cellular Towers Frequently Asked Questions.

A. Industry Canada (IC) Guide to Assist Land-use Authorities (LUA) in Developing Antenna and Siting Protocols

[9] This Guide, dated January 2008, provided guidance to local municipalities and stated:

The federal Ministry of Industry has the authority under the Radiocommunication Act to issue radio authorizations, to approve each site on which antenna systems installations may be located…Industry Canada considers that the LUAs and local residents’ questions, comments and concerns are important elements to be considered by a proponent seeking to install, or make major modifications to, an antenna system.

The Guide further states:

LUAs – because of their local knowledge, are very well qualified to explain to proponents the particular amenities, sensitivities, and planning priorities and other relevant characteristics of their area.

[10] With respect to placement of antenna systems, the Guide provided at para. 2.1:

Before a proponent approaches an LUA, it has most likely given careful consideration to various antenna system placement options, including using existing structures such as building rooftops and water towers to minimize the impact on the local community.

The Guide continued at para. 2.2:

The installation of a new antenna structure may at times evoke sensitivity by the local community. As such, Industry Canada requires proponents to use existing towers or infrastructure (such as rooftops, water towers, utility poles, etc.). This is intended to minimize the proliferation of antenna systems.

[11] With respect to the consultation process, para. 2.3 provided:

LUAs may wish to include in their proposals a mechanism for preliminary consultation. This would allow the proponent, before making any site selection decision, to inform the LUA of its plans.

B. Antenna Towers in Your Community [Industry Canada] Frequently Asked Questions

[12] This Industry Canada website publication provided a number of questions and answers, including the following:

Question 3: Can existing towers or other antenna supporting structures be used?

Answer: Industry Canada requires antenna tower proponents to investigate the use of existing structures. In some instances, because of technical or other constraints, sharing a structure is not always feasible. [Emphasis added]

Question 8: Are licensees required to comply with zoning by-laws?

Answer: Radiocommunication is a field exclusively within the legislative competence of the federal government…However, Industry Canada’s policy is to seek meaningful local input with respect to antenna siting…Industry Canada requires proponents to work with local land use authorities and to accommodate reasonable local requirements.

C. Industry Canada’s Communications and Broadcasting Antenna Systems Circular (CPC)

[13] This guide provides in part:

Antenna/Tower Proponents Are Required to:

1. Investigate Sharing Opportunities:

• Proponents are required to consider sharing an existing antenna system, tower, or existing structure (roof-top, water tower, etc.) within search radius.

2. Engage LUAs (if site is not excluded)

• Proponents are required to contact LUAs to discuss antenna sitting and determine local consultation requirements.

The circular also proves a dispute resolution mechanism.

D. Industry Canada’s Consultation Paper

[14] In February 2014, Industry Canada published a Consultation Paper, seeking comments on its updated proposals. The paper provided at para. 3:

Although the siting of antenna systems is a matter of federal jurisdiction, Industry Canada has procedures in place to address reasonable and relevant concerns of the Local Land Use Authority and the community that it represents…anyone planning to install or modify an antenna system is required to notify and consult with a municipality and the local community, as set out in Industry Canada’s antenna siting procedures. Unless the proposal meets exclusion criteria, proponents must consult with the local land use authority, with the aim of obtaining its concurrence in writing.

E. The Federation of Municipalities (FCM) Guide

[15] The FCM provided a guide to municipalities, which stated: “The purpose of this protocol template is to provide municipalities with a tool to develop customized protocols for the siting of antenna systems within their municipality.” Among the stated objectives of the protocol where:

(2) To set out an objective process, criteria and guidelines that are transparent, consistent and predictable for the evaluation of Antenna System siting proposals that:

(a) Minimize the number of new antenna sites by encouraging co-location;

(b) Encourage designs that integrate with the surrounding land use and public realm;

(c) Establish when local public consultation is required; and

(d) Allow Industry Canada and the communications industry to identify and resolve any potential land use, siting or design concerns with the Municipality at an early stage in the process.

A further objective provided:

(4) To establish a local land use consultation framework that ensures the Municipality and members of the public contribute local knowledge that facilitates and influences the siting – location, development and design (including aesthetics) – of Antenna Systems within municipal boundaries.

F. The City of Barrie’s Role

[16] The City of Barrie began discussing and developing a protocol in 2010. In 2011, Ross Cotton was hired by the City of Barrie as a Land Use Planner and was tasked with developing this protocol. He had some experience with cell tower applications in other municipalities he had worked with. He had regard to the FCM template and consulted with other municipalities about their protocols. A Staff Report by Mr. Cotton dated May 28, 2012, recommended replacing the existing protocol with a new one, together with a by-law amendment, which would serve to restrict the location of towers. Para. 16 of that report stated:

The proposed protocol indicates free-standing transmission towers should not be located on lands designated in the Official Plan as residential, city centre, environmental protection area, or open space.

I pause to note that this policy would not have affected Mr. Jerry’s land, which was zoned C4.

[17] The policy continued:

For commercial designated lands, free-standing transmission towers should not be located within 120 metres of residential designated lands. The restriction on free-standing transmission towers not being located within 120 metres of the shoreline of Lake Simcoe is intended to preserve the visual aspect of the shoreline.

It should be noted that Mr. Jerry’s property was not within 120 metres of a residential area, nor was it within 120 metres of the shoreline. In due course, the motion was passed by Council, adopting the new protocol. In addition, a by-law was passed, restricting the location of towers within certain zones. The by-law restrictions did not affect Mr. Jerry’s C4-zoned land.

G. City of Barrie Protocol

[18] The protocol adopted by Council on August 27, 2012, was the culmination of work done by staff and Council after reviewing the Guidelines from Industry Canada and FCM, together with consultation with proponents such as Rogers. It authorized the Director of Planning, or his or her designate to review applications from proponents. It provided proponents with the City’s location policies and restrictions. It provided for a pre-consultation meeting with the expectation that the proponent provide information, including the location of the tower, proposed setbacks, a description, site changes, if any, and a summary of how the facility meets the exclusion criteria of Industry Canada. If an application was filed by a proponent, a public meeting would be scheduled.

[19] After the preceding steps have been taken, para. 7.3 of the protocol provides:

Where the preceding steps have appropriately addressed alternatives and issues, and the public consultation process has been completed, the Director shall either issue the Municipal Letter of Concurrence to the proponent and Industry Canada, or advise Industry Canada that the City is not in concurrence with the application based upon this protocol. The Director will provide a copy of this decision to the consulted departments.

H. Barrie Application Form

[20] As a result of the protocol, the City of Barrie crafted an application form for proponents to complete. The form also provided: “A pre-consultation meeting shall be conducted prior to the submission of an application.” Stating further, “The pre-consultation shall not mark the commencement of the 120-day consultation process.” The application form listed the items that were required to be submitted for a pre-consultation meeting. I pause to note that Industry Canada gave municipalities only 120 days to respond once the municipality had received a formal application.

I. City of Barrie Frequently Asked Questions

[21] The City of Barrie published its Guidelines on its website, together with the following Question & Answer:

Question: What is the City of Barrie’s Role?

Answer: Cellular towers and other telecommunication facilities are regulated by the federal government through Industry Canada. Municipalities such as the City of Barrie are provided an opportunity to comment on the location of new telecommunication facilities as input into the decision-making process, but the final decision rests in the hands of Industry Canada…However, Industry Canada permits municipalities to develop their own protocol within specific parameters, to address how new cell towers are reviewed at the local level. The City of Barrie has developed such a protocol, which includes requiring cell tower proponents to conduct a public review process for all towers…While the City cannot enforce the protocol, it is hoped that cell tower proponents will agree to undertake this local requirement in the spirit of cooperation and good corporate citizenship. The City does not have the authority to stop the construction of a tower and can only provide its comments to Industry Canada for consideration…

[22] In the spring of 2014, according to the IC Regulations, proponents of cell phone towers such as Rogers, were only required to consult with municipalities if a tower was to be 15 metres in height, or taller. Under their general license across Canada with Industry Canada, proponents were entitled to use their own judgment as to where to place their cell phone towers, if under 15 metres, to service their system-wide needs. Later in 2014, Industry Canada changed its policy to require proponents to consult with land use authorities about all proposed towers regardless of height. This policy change had no effect on Mr. Jerry’s site because the proposed tower was 25 metres, therefore a consultation with the municipality was a requirement and no tower could be licensed by Industry Canada without the municipality’s Letter of Concurrence.

The Rogers Tower Proposals

[23] It is clear from the evidence that Rogers was considering the possibility of erecting a 25-metre tower within a geographic area in the City of Barrie that encompassed Mr. Jerry’s property at 213 Minet’s Point Road. In fact, prior to dealing with Mr. Jerry, Rogers explored a possible cell phone site about a kilometre away in the Hurst Drive/Tollendale Village area. In order to find locations, it was Rogers’ policy to hire an independent contractor as a Site Acquisition Specialist. That individual was given a map with the targeted area, with a view to finding a suitable site and a willing landlord. For this area within Barrie, Rogers hired as a subcontractor Dwayne Rosenberg, who testified at this trial. Around March of 2014, Mr. Rosenberg first explored an earlier site at the Hurst Drive/Tollendale area. Mr. Rosenberg was to be paid for his work in two phases. The first payment would flow if Mr. Rosenberg had a site meeting with a willing landlord. These site meetings typically also involved a surveyor and other Rogers technicians. The next payment would flow to Mr. Rosenberg if and when the landlord signed Rogers’ standard lease. I will have more to say about the lease later in these Reasons.

[24] Dwayne Rosenberg, the Rogers’ subcontractor, testified about these two locations within Rogers’ target area in Barrie. It is clear that work was done at 274 Hurst Drive known as the Hurst Drive/Tollendale site, involving a different landlord. A neighbour, Peter Heida, who testified at trial, observed survey stakes at this site and made inquiries of the City of Barrie in March 2014. However, in March of 2014, that landlord notified Rogers that it was not interested in proceeding with a tower at its property. The City was not then aware of this site workup. Rogers had not given any advance notice to the City.

[25] Peter Heida, an elderly resident, noticed the survey stakes on this 274 Hurst Drive property and phoned the City of Barrie. He testified that in March, he spoke to someone named Vince, to indicate he was opposed to a cell tower at that residential location. It appears that the individual with the City of Barrie was Vincent Noome, who works in the IT Department. Mr. Cotton’s evidence was that the complaint did not come to his attention until June 3, 2014, although it should have come to his attention much earlier as he was the point-person for cell tower inquiries within the City of Barrie. By June 3, Rogers had already discontinued dealing with the earlier site at 274 Hurst Drive and was in the process of dealing with Mr. Jerry’s site. Rogers had not given advance notice to the City of either site it considered. Under Industry Canada policies, a proponent is required to notify and consult the municipality with a view to obtaining a Letter of Concurrence.

[26] After the first site was ruled out by Rogers, Mr. Rosenberg continued to look for a willing landlord within the Rogers search criteria area. He found Mr. Jerry as a willing landlord with respect to his property at 213 Minet’s Point Road. On May 27, 2014 he sent Mr. Jerry a blank standard form Rogers’ lease, and there was a discussion about compensation. Mr. Jerry testified that the compensation would be in the $17,000 to $18,000 range, and he also raised the issue of recouping his property taxes of $6,000. He said they shook hands on this. Mr. Rosenberg testified that the financial discussion took place at the site visit on May 29, 2014, and that they discussed compensation in the $17,000 to $18,000 range for a 20-year lease, with ten percent incremental increases every five years. He gave no evidence as to any discussion about Mr. Jerry’s property taxes.

[27] After Mr. Rosenberg’s initial telephone conversation with Mr. Jerry, Mr. Rosenberg forwarded to him the standard draft Rogers lease in blank. Significantly the standard lease contained an escape clause for Rogers at paragraph 10. Even if the lease was full executed and all terms were agreed upon, Rogers could terminate the lease at its sole option. Clearly a signed lease was just one step in the regulatory process that Rogers would have been required to follow including a pre-consultation meeting followed by a formal application to the City of Barrie and a public consultation process before an Industry Canada license could be sought. There was no evidence that Mr. Rosenberg discussed any of these issues with Mr. Jerry, nor did Mr. Jerry give any evidence of having any independent knowledge of the subsequent steps that would need to be taken after the lease was signed.

Causes of Action

[28] As Plaintiff, Mr. Jerry has the burden to prove on a balance of probabilities the elements of the causes of action he relied upon. I will review these elements in more detail later in the context of the evidence. The elements of these torts were comprehensively set out in the Defendant’s opening statement as follows:

Misfeasance in Public Office

[29] To succeed in an action for misfeasance in public office, the Plaintiff must prove the following:

1. Unlawful conduct on the part of the public official;

2. Intent to cause harm to the Plaintiff;

3. Causation both in fact and in law; and

4. Compensable damages.

Intentional Inference with Economic Relations

[30] The elements of this cause of action are:

1. The Defendant intended to harm the Plaintiff’s economic interest;

2. The interference was by means of an actionable civil wrong against a third party; and

3. The Plaintiff suffered economic loss or harm as a result.

Mr. Jerry’ Property

[31] A site visit took place at Mr. Jerry’s property on May 29, 2014, with Dwayne Rosenberg, together with a surveyor and other engineers or technical people from Rogers. Later a Site Plan Survey of the proposed tower location was prepared by an Ontario land surveyor, and a professional engineer qualified the site from a construction point of view.

[32] As part of the Joint Book of Documents, a survey of Mr. Jerry’s property was filed, as well as a site plan of the proposed tower location, prepared by surveyors for Rogers. The Jerry property is a triangular piece of vacant land with frontage on Minet’s Point Road and Tollendale Mill Road. The City of Barrie witnesses identified this area as an important gateway to the City of Barrie’s waterfront. Two attractive commercial buildings have been constructed on other corners of this intersection. Prior to dealing with Rogers, Mr. Jerry had been attempting to develop a two-storey commercial building at this site. His evidence that he had previously substantially developed this proposal when he sold the land to a buyer. Mr. Jerry reacquired the property when this buyer defaulted on the mortgage. Earlier in 2014, Mr. Jerry was in the process of attempting to develop a three-storey commercial building on this site and was in negotiations with the City of Barrie to acquire a lease of adjacent municipal lands for commercial parking purposes. Those negotiations led to an Offer to Lease on June 25, 2014, which Mr. Jerry rejected out of hand as commercially not feasible.

[33] Mr. Jerry testified that after the lease negotiations with Rogers broke down, he abandoned the concept of developing this three-storey commercial building as not viable and listed the property for sale. He testified that he sold the property to Metrolynx a few years later for $425,000. He testified that he originally acquired this parcel in 2003 for $190,000. He testified that Metrolynx first used the property for storage of rail ties and related equipment, and it now uses the property as a parking facility.

[34] The proposed Rogers’ cell phone tower was to be located on a triangular sliver of land near the south limit of Mr. Jerry’s property. The footprint of this tower was to be approximately 25-feet by 25-feet. No evidence was called by way of appraisal or otherwise, as to whether or not the tower lease would have acted as added value to a purchaser such as Metrolynx, or detracted from its use of the property as a parking lot.

[35] After the Rogers site visit on May 29, 2014, Mr. Jerry called the City of Barrie and spoke to Richard Forward, the City’s General Manager, indicating he was enthusiastic about the tower possibility and that it would enhance his ability to develop a three-storey commercial building on the property. He made this call on June 3, 2014 well before the City of Barrie made a formal lease proposal to Mr. Jerry about the abutting property for his parking needs.

[36] Mr. Jerry’s phone call to the City of Barrie stirred up a virtual hornet’s nest of emails and meetings involving the City of Barrie Defendants; Industry Canada, and Rogers. Peter Heida’s March complaint to “Vince” about the earlier site was forwarded to Ross Cotton on June 3, 2014.

[37] I pause to note that Rogers had not communicated with the City of Barrie with respect to either proposed towers within this geographic area. Although it might have been prudent to notify the City of the sites they were considering before arranging a pre-consultation meeting, they were not required to do so until they were ready to arrange a pre-consultation meeting as a step toward filing a formal application with the City of Barrie.

Rogers Telecommunications Inc. (Rogers)

[38] Rogers was not a party to this action which centred around the possibility of the location of a 25-metre cell tower on Mr. Jerry’s property. Two witnesses gave evidence about Rogers’ practice and procedures surrounding cell tower locations in municipalities. Dwayne Rosenberg, a sub-contractor was the site acquisition specialist. He reported to Jay Pellerin, Rogers’ project manager at the time. Mr. Pellerin no longer works for Rogers.

[39] Several other Rogers employees were involved in emails and discussions with Industry Canada and Ross Cotton, the City of Barrie planner. Although none of the following Rogers employees were called to testify, their names and roles can be described as follows:

a) Tatyana Moro was a municipal relations specialist that Ross Cotton first reached out to when learning of Rogers involvement;

b) Michelle Vivar was also a municipal relations specialist. The Cotton email to Industry Canada was referred to her by Ms. Moro. In addition to dealing with Ross Cotton by email she attended a meeting at the City of Barrie with Mr. Cotton together with her colleague Adele Biggs on June 27. Mr. Cotton testified that he thought this would be a pre-consultation meeting, but it turned out to be a general meeting discussing Rogers future plans within the City of Barrie;

c) Jan Yang was a project coordinator who was copied on much of the email correspondence; and

d) “Julia” was a Rogers co-locate specialist. Her name was referenced in an email dated June 9, 2014 from Michelle Vivar which indicated: “action item one: proceed with co-locate with Allstream, and after we confirm with Allstream, we can reply to IC/municipal, responsibility: Julia.” As noted, Industry Canada’s communications and broadcasting systems circular provided: “antenna/tower proponents are required to: Number 1 investigate sharing opportunities”.

[40] It was clear that Rogers was seeking to locate a cell phone tower within a certain sector of the City of Barrie. In order to obtain a licence for a tower it was bound by the policies and procedures established by Industry Canada. Before obtaining a license, it required a Letter of Concurrence from the City of Barrie. That Letter of Concurrence could only be obtained after a pre-consultation meeting with the City of Barrie, followed by an application process including a public consultation. Industry Canada’s standards also required proponents such as Rogers to explore other options such as co-location of its antenna on an existing tower or location on a rooftop or other structure. That procedure did not require a Letter of Concurrence from the municipality. Its purpose was to avoid a proliferation of towers within municipal limits.

[41] In the Spring of 2014, Rogers explored two sites, one after the other. The first was at 274 Hurst Drive. The second was at 213 Minet’s Point Road, land owned by Mr. Jerry. Rogers did not communicate its preliminary interest to the City of Barrie at this early stage of exploration. However, as I will explain in this decision, had they done so at an early stage, it may have avoided some of the confusion and misunderstanding that followed.

[42] The earlier site at 274 Hurst Drive was the subject of exploration by Dwayne Rosenberg, the site acquisition specialist. Survey work was done on the site. It was the observation of those survey stakes that gave concern to Peter Heida on his walk in the neighbourhood. He called the City to express his concern in March 2014. Vincent Noome received the complaint but did not forward onto Ross Cotton, the City of Barrie planner, delegated to review cell tower applications, until June 3, 2014. Mr. Noome’s email indicated that Peter Heida had concerns about proximity to a school and a residence for seniors. On March 26, 2014 the landowner of 274 Hurst Drive, Tollendale Village, a retirement home, decided not to proceed with the tower. Dwayne Rosenberg then proceeded to deal with Mr. Jerry about a tower at 213 Minet’s Point Road in May 2014.

[43] It is plain and obvious that by the time Mr. Cotton learned of Peter Heida’s complaint in June of 2014, about 274 Hurst Drive, that site was no longer under consideration by Rogers.

[44] Both Peter Heida and Ross Cotton testified about the telephone conversation they had on June 4, 2014. Mr. Cotton’s phone call was a follow-up to Mr. Heida’s complaint, which he submitted in March of 2014, when he observed survey work in the area of 274 Hurst Drive, a seniors’ facility. Mr. Cotton testified that he felt a tower would not work at that location because it was in close proximity to a residential area. He then contacted Mike Lang of Industry Canada to find out who the proponent was. On the same day, he became aware of Rogers’ investigation of a site at Mr. Jerry’s property, about one kilometre away.

Mr. Jerry’s Site

[45] When 274 Hurst Drive became unavailable, Dwayne Rosenberg began looking for another landlord within the same vicinity of the 274 Hurst Drive site. In the middle of May 2014, he spoke to Don Jerry and determined that Mr. Jerry was a willing landlord with a site that had potential. A site visit was arranged, and Mr. Rosenberg attended at the site together with Rogers’ engineers and a surveyor. As previously noted, Mr. Jerry was provided a draft Rogers lease. At this point Rogers still had not communicated to the City its interest in this location, which was about one kilometer from the earlier site at 274 Hurst Drive.

[46] Mr. Jerry was very positive about the meeting with Rogers’ site acquisition specialist. The site details and compensation were discussed. As a result, he called Richard Forward, the City of Barrie’s General Manager of Infrastructure on June 3, 2014 to share the news. For several months, he had been dealing with the City about his development proposal and the possibility of leasing abutting city land.

[47] The emails, meetings and discussions that followed bear close scrutiny but before reviewing the issue in some detail, I will outline the role of Industry Canada.

Industry Canada

[48] The Defendants called Michael Lang, Industry Canada’s Field Manager for the area which included Barrie. Although he was called by the Defendants, I accept him as an independent witness providing assistance to the court about the practices and procedures of Industry Canada and his specific involvement with the issues at trial. He explained his role to the court as Field Manager. He deals with inquiries and enforcement of antenna issues and other inquiries about cell towers. He fields calls from municipalities, citizens and cell phone providers. He underscored the fact that proponents were required to engage with a municipality through a consultation process. No tower could be constructed without the approval of Industry Canada. Without a Letter of Concurrence from a municipality Industry Canada would not approve a tower if it exceeded 15 meters in height. He was taken to the Industry Canada FAQs which stated:

Industry Canada requires antenna tower proponents to investigate the use of existing structures. In some instances, because of technical or other constraints, sharing a structure is not always feasible.

[49] On June 4, 2014 he received an email from Ross Cotton of the City of Barrie. He indicated that this type of inquiry was not unusual. He would regularly receive inquiries from municipalities and members of the public.

[50] As the City of Barrie’s Director of Planning, Stephen Naylor thought nothing unusual about Mr. Cotton contacting Industry Canada when a complaint comes in. As he stated in his examination for discovery, read in by the Plaintiff as evidence at trial:

So, it is certainly within his (Mr. Cotton’s) purview to contact Industry Canada to find out who is surveying in the area and to make sure that they in fact have the latest City of Barrie telecommunication protocol.

[51] Mr. Lang spoke about the inquiries he was receiving. As he stated in evidence,

So, when towers went up there would be public outcry saying ‘what is this, what is this?’ and we would get a call from a LUA (municipality) saying who’s putting up a tower on this corner, and who’s putting up a tower over here? So, I just had to go pull the – my contact and say, are you putting one up?

[52] Mr. Cotton’s email to Mike Lang stated:

Mike, can you advise if there has been any discussion with any service provider to erect a telecommunications facility in the Hurst Drive/Tollendale Mill Road area of Barrie? We had recently received an inquiry from a nearby resident on the matter…we have not yet been contacted. On a preliminary review however it would appear that a tower in this location would not meet the City’s location protocol. [Emphasis added.]

Clearly this email did not specifically mention Mr. Jerry’s property at 213 Minet’s Point Road. I pause to note that Mr. Jerry called the City of Barrie the day before and spoke to Mr. Forward about the possibility of a cell phone tower on his vacant land. Prior to that call the City had no knowledge of Rogers’ interest in a tower at either of these two sites. Of course, the City also did not know that Rogers’ had discontinued its interest in the first site at 274 Hurst Drive in March 2014.

[53] If Mr. Cotton’s preliminary review was meant to focus on 274 Hurst Drive, those comments may have been appropriate due to nearby residential accommodation as underscored by Mr. Heida’s complaint. I pause to note that Mr. Cotton’s preliminary comment was sent to Industry Canada. He did not send it to Rogers. He did not then know that Rogers had been investigating these sites.

[54] Mr. Lang made inquires of Rogers by forwarding this email to Rogers on June 4 asking, “Another one. Is this yours?” The same day Rogers responded:

Hi Mike, yes this is one of ours. Thanks for the information. This is not a final site yet. I will pass the comments below to our team and if you want me to contact the municipality directly please let me know.

[55] On June 4, Mike Lang from Industry Canada advised Mr. Cotton, “It is a Rogers site. Rogers is aware and should be contacting you.” Mr. Cotton did not wait for Rogers to contact the City of Barrie. Instead he emailed Tatyana Moro of Rogers and provided a copy of the City’s protocol. On June 9, Mr. Cotton had a telephone conversation with Rogers’ representatives and emailed Rogers saying “Thank you for your recent call. It would be appreciated if we could schedule a meeting as soon as possible to discuss Rogers’ potential site locations in the Hurst Road-Lakeshore Drive area in the city.” Clearly Mr. Cotton thought he was arranging a pre-consultation meeting as contemplated by the City of Barrie’s cell phone tower protocol. On June 10, he emailed his colleagues within the planning department, “Did either of you want to attend the pre-consultation meeting?” Mr. Lang of Industry Canada also responded the same day to Rogers, stating, “Yes, please contact them to let them know it is Rogers and you plan to work with them.”

[56] As to his role, Mr. Lang testified:

My expectations, I was bringing the parties together so that they could talk so one of the other would be contacting each other to discuss the site. One party, Michelle (Rogers) or Ross (City of Barrie) would be contacting. One of them would be initiating contact to discuss the site.

[57] Ross Cotton then contacted Rogers on June 4, 2014 providing Rogers with a copy of the City’s protocol. His email stated:

We had recently received communication from a resident and follow up by staff with Industry Canada indicating that Rogers is reviewed potential site locations in the Tollendale Mills Road and Hurst areas as well as Lakeshore Drive and Minet’s Point Road area. [Emphasis added.]

[58] This email makes reference to the two possible Rogers sites. But Rogers did not respond to indicate that the first site at 274 Hurst Drive had been abandoned by it in March based on the unwillingness of the landlord. By this time Rogers had received, through Industry Canada, Mr. Cotton’s preliminary comments about the Hurst Drive/Tollendale Mill Road area.

[59] Mr. Cotton then emailed Rogers on June 9, 2014 to attempt to schedule a pre-consultation meeting. A pre-consultation meeting is a necessary step according to the City’s protocol, before receiving a formal application.

[60] It is clear that Rogers took Mr. Cotton’s email, which had been forwarded to them by Industry Canada, as a negative comment on the only site it was looking at, Mr. Jerry’s site. Rogers internal reaction was captured in Mr. Rosenberg’s email of June 10 where he stated in an email to Jan Yang, “Hi Jan, This site is now on hold as per Jay (Pellerin). There are issues with municipal.”

[61] On June 9, Jan Yang, Rogers Project Co-ordinator, emailed to Jay Pellerin and Michelle Vivar about Mr. Jerry’s site stating in chart form:

Item No.

5 New

Date Opened

Jun 3

Presenter

Michelle, Julia

Site Code – Name

C4343 Minets Point & Lakeshore

SAS

Dwayne

Description

According to the municipality’s comments on our standalone tower proposal “On a preliminary review however it would appear that a tower in this location would not meet the City’s location protocol”, it will not be an easy approval. We are also working on a collocate option. Our proposed tower is in Barrie area.

Discuss the two options

Action Item 1

Proceed with collocate with Allstream, and after we confirm with Allstream, we can reply to IC/Municipal

Due Date

Jun 10

Responsibility

Julia

Co-Locate Options

[62] Under action item number one Ms. Yang stated in her email:

Proceed with co-locate with Allstream, and after we confirm with Allstream, we can reply to IC/Municipal. [Emphasis added.]

[63] I pause to note that co-location is an option set out in Industry Canada policies. As noted, Industry Canada’s frequently asked questions provides:

Question 3: Can existing towers or other antennas supporting structures be used?

Answer: Industry Canada requires antenna tower proponents to investigate the use of existing structures. [Emphasis added.]

It is an option that provides a simple solution for a proponent by locating its antenna on another company’s tower. If a co-locate option is arranged, then no municipal consultation is required. It is clear that on June 9, 2014, Rogers had internal discussions about co-location. No evidence was called by the Plaintiff or Defendants as to whether or not Rogers proceeded with any form of co-location after Mr. Jerry commenced this action.

[64] Jay Pellerin no longer works for Rogers. Dwayne Rosenberg, a sub-contractor and site acquisitions specialist, does not deal with co-location options.

[65] Jay Pellerin emailed Dwayne Rosenberg, Rogers’ subcontractor on June 9 stating:

The municipality called Industry Canada to say they won’t support a site here. We are trying to be good corporate citizens and not ruffle feathers so can you please stop work on this site.

[66] Jay Pellerin’s email of June 12 mentioned co-locating. He stated, “The other site is the co-locate option which they or they’re working on that should stay the same.” In cross-examination Mr. Pellerin stated that co-locating was the preferred option and that Julia, a Rogers employee, was looking after co-locate options. Mr. Rosenberg also testified about co-locating. He explained that co-location specialists were employed by Rogers and that this wasn’t part of his role. In his testimony he disagreed that co-location was the preferred option for Rogers but acknowledged that approval was easier. He also testified that he had no knowledge of Industry Canada policies.

[67] It appears that Mr. Rosenberg was confused about the two sites. He responded:

What location are you referring to? Is it 274 Hurst Drive or 213 Minet’s Point Road? How would they know we are going to put a tower here? I’m in lease negotiations and close to signing an agreement.

However, Rogers did not notify Mr. Jerry that his site was on hold or had been cancelled by Rogers until Mr. Rosenberg sent an email to Mr. Jerry on June 27, 2014 stating:

Rogers has had to cancel this project as municipal approval could not be obtained. We have recently been contacted by the City and they have advised Rogers that no permits would be issued in this area.

[68] Ross Cotton, the City’s Policy Planner responsible for developing the cell tower guideline gave evidence about the steps he took when learning of Mr. Heida’s complaint and after meeting with Richard Forward. His diary entry of June 4 indicated:

meeting Richard Forward re: 213 Minet’s Point

• proposal for tower reviewed policy suggested if tower is to be considered suggest flag pole monopole design due to the esthetic concerns regarding City gateway to Lakeshore.

[69] A further diary note dated July 2, 2014 noted that he reviewed the protocol and made a number of points including the following:

• 3.1 – OP designation commercial okay

• 3.2 – N/A

• 3.3 – 120 m of Lake Simcoe – locate 250 m ok from Lakeshore

He noted at 3.5 “shall respect and not detract from tourism attractions (Lakeshore Drive Allendale Station park) if to be permitted wants stealth tower (flag pole design)”. He also noted that day:

• meeting June 27/14 with Rogers. They are looking at co-location with another existing tower.

[70] By June 9, Rogers had discontinued exploring Mr. Jerry’s site because of perceived municipal concerns. However, this was not communicated to Mr. Jerry until June 27. Mr. Jerry then took action. On the same day he phoned his City councillor to complain that the City was preventing the tower. This complaint was elevated to Richard Forward, the City’s General Manager of Infrastructure. On Saturday, June 28, 2014 he phoned Mr. Jerry to discuss the matter. Mr. Forward then emailed Stephen Naylor, the City’s planner, and Ross Cotton to inform them about the call and to arrange a meeting. Internal communications with these City of Barrie officials followed. Based on the feedback Mr. Jerry had received he emailed Dwayne Rosenberg on July 2, 2014 stating:

There seems to be some miscommunication at City Hall. I have spoken to one of the general managers at the City as well as to the local councillor. Both state that they have no issue with a tower at 213 Minet’s as long as we proceed with a building as well. If you could get the contact name of the Barrie City Hall person who contacted Rogers I think we could clear this up.

[71] There is no evidence that Mr. Rosenberg responded to Mr. Jerry’s inquiry or that he elevated the inquiry to Rogers’ staff.

[72] On June 27, 2014, Mr. Cotton met with Rogers employees Michelle Vivar and Adele Biggs. Although Mr. Cotton thought that this was a pre-consultation meeting, clearly it was not. Rogers had not supplied the necessary documentation required for a pre-consultation meeting. Mr. Cotton testified that instead the meeting was of a general nature to discuss Rogers’ plans within the City of Barrie.

[73] Mr. Jerry’s phone call to Mr. Forward on Saturday, June 28, 2014 obviously raised Mr. Forward’s concern. His evidence was that the meeting concluded with Mr. Jerry saying “you will hear from my lawyer.” Mr. Forward denied an allegation that he had phoned Rogers to interfere with his proposal. He also denied stating to Mr. Jerry at the time that Rogers was the City of Barrie’s service provider. In fact, the City was receiving service from Bell.

[74] Mr. Forward testified that he spoke to Mr. Jerry’s then lawyer on July 3 and explained the approval process with Industry Canada. There was a discussion about a letter that the City offered to send to Rogers. A letter was then prepared and sent to Rogers Communications Inc. to the attention of Dwayne Rosenberg on July 8, 2014. That letter, marked as Exhibit 1, Tab 88, briefly reviewed the complaint from Peter Heida, commented on the protocol for cell towers that the City of Barrie had in place, and concluded:

Regarding any proposed sites in the Lakeshore Drive and Hurst Drive area of the city, and specifically the southeast corner of Hurst Drive and Minet’s Point Road, the City has not received any application for a telecommunication tower. Therefore, no planning opinions have been rendered regarding the placement of a tower on these lands. [Emphasis added.]

A copy of that letter was sent to Mr. Jerry’s then lawyer.

[75] On July 9, 2014 Don Jerry wrote to Dwayne Rosenberg about his efforts stating:

Both the councillor and engineering manager had been helpful and I was trying to keep the spirit of cooperation of strong. If Rogers and or other providers want a tower at that location I am willing to build it and lease it if it makes financial sense.

[76] In reference to the letter Mr. Jerry wrote to Dwayne Rosenberg on July 11 stating, “Is this letter any help to our cause?”

[77] Dwayne Rosenberg then emailed his contact at Rogers on July 15, 2014, Jay Pellerin stating:

Hi Jay,

I just wanted to forward you this email below and attachment. I know we have been looking for a site in Barrie and we have one with a willing LL. He has contacted the City for municipal approval and has provided me their feedback – which seems positive. Please review and let me know if you think we can move forward.

[78] It does not appear that Mr. Jerry heard anything further from Rogers. On July 23, 2014, his lawyer put the City of Barrie on notice about a possible legal action stating:

Our understanding is that the City of Barrie for improper and inadequate reasons, unlawfully interfered with the development of Mr. Jerry’s property by improperly and preemptively banning the development of Rogers’ tower C4343 on Mr. Jerry’s property.

[79] On September 22, 2014, Mr. Jerry commenced an action against the City of Barrie and named Defendants for damages.

Mr. Jerry’s Examination for Discovery

[80] As part of its case the Defendants read in certain portions of Mr. Jerry’s answers to questions at an examination for discovery November 30, 2015. The following questions and answers were relied upon by the Defendants:

Q: What did the City do that caused Rogers to pull the plug on this?

A: I do not know and that’s why I’m going after the City because I think something was promised or threatened, which I do not know, which is not above board and not a proper way for a municipality to do business.

Q: So, you specifically think that something was promised or threatened to Rogers or against Rogers if they pursued this tower?

A: Yes.

Q: And what evidence are you relying on for that allegation?

A: I’m relying on the evidence that they [Rogers] contacted me. They spent money on a survey. They sent technicians to meet me. The named the tower… I think I got the email Friday [June 27] saying that the City approached Rogers and asked them not to put a tower there. The deals dead. I don’t know what they did, but they did something.

Q: Do you today have any information knowledge or belief as to why you say the City doesn’t want a tower on your property?

A: The gateway and the fact I’m going to make a profit.

Analysis

[81] The Plaintiff and the Defendants filed case books of authorities with respect to the torts of misfeasance in public office and intentional interference with economic relations.

Misfeasance in Public Office

[82] Both the Plaintiff and the Defendants made reference to the Supreme Court of Canada decision in Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263. In Capital Solar Power Corporation v. The Ontario Power Authority, 2019 ONSC 1137 Justice Roccamo provided a useful summary of the legal framework of misfeasance in public office at paras. 17 – 24, as follows:

[17] The leading authority in Canada is Odhavji Estate v. Woodhouse. The tort is based on the rationale that the rule of law requires that executive or administrative powers “be exercised only for the public good and not for ulterior and improper purposes”.

[18] There are two constituent elements to the tort. First, there must be deliberate, unlawful conduct in the exercise of a public function. Second, there must be awareness on the part of the public agent or official that his or her conduct is unlawful and is likely to injure the plaintiff.

[19] Common to each element of the tort is the requirement that the public official must have engaged in deliberate and unlawful conduct in his or her capacity as a public officer. An act may be unlawful because an official acted in breach of a statutory provision, or in excess of the powers granted, or for an improper purpose.

[20] In Odhavji at para. 22, the Supreme Court held that the tort of misfeasance in public office can arise in one of two ways. It may arise by conduct that is “specifically intended to injure a person or class of persons”, referred to as “Category A.” Alternatively, it may arise where a public officer acts “with knowledge both that she or he has no power to do the act complained of and that the act is likely to injure the plaintiff”, referred to as “Category B.” In either case, the essential elements that must be established include: (1) deliberate and unlawful conduct in the exercise of public functions, and (2) awareness that the conduct is unlawful and likely to injure the plaintiff.[19] The distinguishing feature between the two categories of the tort was described by Iacobucci J. in Odhavji, at para. 23, in this way:

What distinguishes one form of misfeasance in a public office from the other is the manner in which the plaintiff proves each ingredient of the tort. In Category B, the plaintiff must prove the two ingredients of the tort independently of one another. In Category A, the fact that the public officer has acted for the express purpose of harming the plaintiff is sufficient to satisfy each ingredient of the tort, owing to the fact that a public officer does not have the authority to exercise his or her powers for an improper purpose, such as deliberately harming a member of the public. In each instance, the tort involves deliberate disregard of official duty coupled with knowledge that the misconduct is likely to injure the plaintiff.

[21] The state of mind required to establish liability depends on which category the tort falls into. Category A involves “targeted malice”, whereas the requirement of intentional misconduct for Category B may be satisfied by “reckless indifference as to the legality of the act or its probable consequences.” As established in Odhavji, “[a]t the very least...the defendant must have been subjectively reckless or wilfully blind as to the possibility that harm was a likely consequence of the alleged misconduct.”

[22] Misfeasance in a public office requires an element of bad faith or dishonesty. There must also be awareness that the unlawful conduct would harm the plaintiff. As the Supreme Court of Canada in Odhavji noted, “liability does not attach to each officer who blatantly disregards his or her official duty, but only to a public officer who, in addition, demonstrates a conscious disregard for the interests of those who will be affected by the misconduct in question.”

[23] A “public office holder” has been defined in a “relatively wide sense”, and a collective public body can be liable for the tort.

[24] Alongside deliberate unlawful conduct and the requisite knowledge, a plaintiff must also prove the other requirements common to all torts. More specifically, the plaintiff must prove that the tortious conduct was the legal cause of his or her injuries, and that the injuries suffered are compensable in law.

[83] In Pikangikum First Nation v. Nault, 2012 ONCA 705, [2013] 1 C.N.L.R. 258, the Ontario Court of Appeal sounded this note of caution at para. 120:

The tort of misfeasance in public office is difficult to establish. The plaintiff must prove more than mere negligence, mismanagement or poor judgment. To succeed, the plaintiff must demonstrate that the defendant knowingly acted illegally and in bad faith chose a course of action specifically to injure the plaintiff.

Intentional Inference with Economic Relations

[84] In A.I. Enterprises Ltd. v. Bram Enterprises Ltd., 2014 SCC 12, [2014] 1 S.C.R. 177, the Supreme Court of Canada provided this comment with respect to the tort of unlawful interference with economic relations. At para. 2 Cromwell J. stated:

While this tort is far from new, its scope is unsettled and needs clarification.

Cromwell J. further, at para. 5:

In light of the history and rationale of the tort and taking into account where it fits in the broader scheme of modern tort liability, the tort should be kept within narrow bounds. It will be available in three-party situations in which the defendant commits an unlawful act against a third party and that act intentionally causes economic harm to the plaintiff.

[85] Cromwell J. adopted with authority the words of Goudge J.A. in Alleslev-Krofchak v. Valcom Ltd., 2010 ONCA 557, 322 D.L.R. (4th) 193, at para. 50:

Intentional interference with economic relations requires that the defendant intend to cause loss to the plaintiff, either as an end in itself or as a means of, by example, enriching himself. If the loss suffered by the plaintiff is merely a foreseeable consequence of the defendant’s actions that is not enough.

[86] In O'Dwyer v. Ontario Racing Commission, 2008 ONCA 446, 293 D.L.R. (4th) 559, the Ontario Court of Appeal dealt with a trial decision which involved both misfeasance in public office and intentional interference with economic relations. By way of background, Rouleau J.A. stated, at para. 1:

The liability arose from a telephone call made by one of its officials [Ontario Racing Commission] to the Rideau-Carlton Raceway where the respondent had been employed. The official advised that the respondent would not be approved as a starter for the 2003 season. As a result of the telephone call, the respondent was not rehired by the raceway and suffered damages. The trial judge found that the telephone call constituted an “intentional illegal act” sufficient to make out the torts.

The Court of Appeal found that the telephone call by itself did not constitute an intentional illegal act but considered other aspects of the Commission’s conduct which frustrated all efforts by the respondent to have the decision to refuse his approval reviewed, as was his statutory right.

[87] With respect to the telephone call itself, the Court noted, at para. 29:

Although Mr. Fines’ [the Commissions supervisor of standard bread racing] authority to make the call is not specifically provided for in the governing legislation or the rules, it did not, in my view, constitute an “intentional illegal act” within the particular circumstances as described. Nothing in the records suggests that Mr. Fines was intentionally committing an act he knew to be illegal. The call was in his view, pre-empting a problem, and came within the broad scope of his duties provided within the governing statutory scheme.

[88] In considering the Commission’s ongoing conduct after the telephone call, the Court noted, at para. 51:

The trial judge found that the Commission was “playing games” with the respondent; engaging in “duplicitous conduct”; engaging in “unhelpful and misleading correspondence”; and leaving the respondent to essentially “hang out to dry”. …Such findings establish that the Commission officials involved in the respondent’s case acted deliberately and, at a minimum, were subjectively reckless or wilfully blind as to the legality of their actions and to the harm which resulted from their misconduct.

[89] The Court in O’Dwyer also considered intentional interference with economic relations in declining to uphold the trial judge’s decision finding intentional interference with economic relations. The Court noted at para. 60:

[…] The phone call and the decision not to approve the respondent as a starter were, for the reasons already described, entirely legitimate in the circumstances. I have instead concluded that the Commission acted with reckless indifference as to the legality of its authority to make a decision while depriving the respondent of his statutory right to challenge the decision and that the Commission was subjectively reckless or wilfully blind to the harm it would cause to the respondent. Thus, the circumstances necessary to make out the tort of intentional interference with economic relations are not present in this case.

Facts not in Dispute

[90] After considering the evidence of the Plaintiff’s and Defendants’ witnesses, together with the exhibits, I find that the following facts are not in dispute:

• Industry Canada is the sole regulatory authority to issue licenses for cell phone towers.

• Industry Canada’s policies mandate that proponents consider co-locate options and consult with local municipalities if free-standing towers are to be considered.

• Municipalities, like the City of Barrie, have no approval authority but can issue a Letter of Concurrence or a Letter of Non-Concurrence to Industry Canada based on a formal application filed by a proponent.

• The City of Barrie had a protocol in place which provided a guide to the application process, as well as a requirement for a proponent to request a pre-consultation meeting with City staff.

• Mr. Jerry’s site was zoned C4 and therefore, his site would not have offended the City’s By-law discouraging towers in certain zones within the municipality. In addition, Mr. Jerry’s site was not in close proximity to Lake Simcoe, nor were there any residences nearby.

• Ross Cotton, a planner with the City of Barrie, was the point-person for cell towers in the municipality. He had developed the City’s Guide to Cell Phone Tower Applications, after a consultation with proponents like Rogers.

• In March of 2014, Rogers took preliminary steps to construct a 25-metre tower at 274 Hurst Drive and arrange survey work. That site was abandoned because in March of 2014, they no longer had a willing landlord.

• In March of 2014, Peter Heida, a nearby resident, filed a complaint about the survey work he observed at 274 Hurst Drive.

• In May of 2014, Rogers took preliminary steps to construct a 25-metre tower on a portion of Mr. Jerry’s land by arranging a site visit, providing a lease in blank, and retaining a surveyor and engineer.

• Rogers never filed a formal application for a cell phone tower, nor did it file the required documents for a pre-consultation meeting with the City of Barrie.

Discussion

Misfeasance in Public Office

[91] As established by the Supreme Court of Canada in Odhavji, the first two elements of the tort of misfeasance in public office require consideration of whether or not there has been deliberate unlawful conduct by a public official, followed by an awareness of that official that the conduct is unlawful and likely to injure the Plaintiff. Before considering the events that occurred surrounding Mr. Cotton’s email to Industry Canada and Rogers, there are two important background events that require consideration.

[92] First, Rogers did not communicate its interest in a cell phone tower at either 274 Hurst Drive or 213 Minet’s Point Road to the City of Barrie while these sites were under investigation. Industry Canada’s policies required proponents to consult with a municipality about their proposal in compliance with any municipal guidelines. However, the policy does not indicate when a proponent should contact a municipality. Clearly, at the latest, they are required to contact the municipality to arrange a pre-consultation meeting prior to filing a formal application. Cell tower proponents know that without a Letter of Concurrence from a municipality, no license can be obtained from Industry Canada. In my view, best practices would have suggested that proponents notify the municipality early in the site selection process, or at the very least, when they had found a willing landlord and commenced survey work on the property.

[93] Second, Mr. Heida’s complaint to the City of Barrie in March of 2014, was not elevated to Ross Cotton, the planner charged with cell phone applications, until June 3, 2014. This mismanagement by the City of Barrie led to Mr. Cotton’s email to Industry Canada concerning a site that was no longer under consideration by Rogers.

[94] If Rogers had communicated with the City of Barrie that it had discontinued dealing with 274 Hurst Drive in March 2014, then Mr. Cotton could clearly have communicated to Mr. Heida that the concern he had about 274 Hurst Drive was a site no longer under consideration by Rogers.

Deliberate Unlawful Conduct

[95] The essence of the Plaintiff’s submissions is that the City of Barrie, or its employees, deliberately and unlawfully contacted Industry Canada and then Rogers, by providing a preliminary review indicating that a tower would not meet the City’s location protocol. I am not satisfied that there was anything unlawful about Mr. Cotton’s reaching out to Rogers prior to any official application. I say so for the following reasons. First of all, Mr. Cotton had a complaint from a member of the public. But due to internal mismanagement and the city’s lack of information from Rogers, there was no longer any foundation for a complaint about 274 Hurst Drive. Rogers had abandoned that site in March of 2014. Second, in the context of this citizen’s complaint, Mr. Cotton was encouraged by his superiors to reach out to Rogers. Mike Lang of Industry Canada found nothing unusual about a municipality reaching out. He often received calls of this nature and encouraged the municipality and the proponent to contact one another directly. Third, I find nothing unusual about the City providing a preliminary review. Proponents are well aware that municipalities are not the approval authority. Industry Canada is. But municipalities do have the ability to comment on an application. Fourth, proponents know that before they file a formal application, they are required by Industry Canada to consider co-locate options within the target area.

[96] In O’Dwyer, the representative of the Ontario Racing Commission made a telephone call, which clearly hindered the applicant’s approval for rehiring. The Court found that that telephone call by itself did not constitute an illegal act. But in O’Dwyer there was much more deliberate action involved, finding that the Commission, at para. 51 “…acted deliberately and, at a minimum, were subjectively reckless or wilfully blind as to the legality of their actions and to the harm which resulted from their misconduct.”

[97] In this case, the City of Barrie took some steps to assist Mr. Jerry when he contacted Mr. Forward on June 28, 2014. Mr. Forward, the City’s Chief Planner, spoke to Mr. Jerry’s then lawyer, to explain the protocols and procedures. The City then sent a letter to Rogers, concluding “Therefore, no planning opinions have been rendered regarding a placement of the tower on these lands [Mr. Jerry’s site].” Mr. Jerry clearly thought this was a positive step. On July 9, 2014, he wrote to Rogers’ subcontractors stating “Both the councillor and engineering manager have been helpful and I was trying to keep the spirit of cooperation strong.”

[98] Mr. Cotton’s own diary notes of June 4, after his meeting with Richard Forward, indicate “Reviewed policy. Suggested if tower is to be considered, suggest flagpole – monopole design due to the esthetic concerns regarding City gateway to lakeshore.”

[99] His notes made July 2, 2014, do not suggest any attempt to oppose a tower at this site. He noted that the location was commercial and it was some distance from the lakeshore and residential areas. He noted “If to be permitted, want stealth tower (flagpole design).” He also noted as a follow-up to his meeting with Rogers’ representatives on July 27, stating “They are looking at co-location with another existing tower.”

[100] I repeat the note of caution sounded by the Court of Appeal in Pikangikum, at para. 120:

The tort of misfeasance in public office is difficult to establish. The plaintiff must prove more than mere negligence, mismanagement or poor judgment. To succeed, the plaintiff must demonstrate that the defendant knowingly acted illegally and in bad faith chose a course of action specifically to injure the plaintiff.

[101] At the same time that Rogers was exploring Mr. Jerry’s site, it was obligated to consider co-locate options under the policies of Industry Canada. I accept the evidence of Jay Pellerin, a former Rogers employee, who stated in cross-examination that co-locating was the preferred option for Rogers. Not only was co-locating the preferred option, it was an option that could provide a solution to a proponent without the necessity of an application to the municipality and a consequent public meeting.

[102] The second element of misfeasance in public office is an intent to cause harm to the Plaintiff. For the foregoing reasons, I am not satisfied that the Plaintiff has proven that the Defendants intended to cause harm to Mr. Jerry. In my view, the combination of the lack of communication from Rogers to the City of Barrie about sites under consideration, followed by the City’s mismanagement of Mr. Heida’s complaint, do not rise to the level of unlawful conduct with intent to cause harm to Mr. Jerry.

Causation

[103] Rogers did not pursue Mr. Jerry’s site. As Mr. Pellerin noted in his email, they did not want to “ruffle municipal feathers”. But Rogers had another option – co-location. The record indicates they were exploring this option, as they were required to do under Industry Canada policies. That option was available even if a lease was signed with Mr. Jerry. The lease, even if signed, provided Rogers with an escape clause. If Rogers successfully pursued the co-locate option, it would have no need to obtain a Letter of Concurrence from the City of Barrie. Even if the Plaintiff was able to prove that the City of Barrie and its employees engaged in unlawful conduct with intent to cause Mr. Jerry harm, I am not satisfied that he has proven causation of his loss beyond the balance of probabilities.

Damages

[104] Mr. Jerry claims damages for breach of his stream of income that would have resulted if he entered into a lease with Rogers. I am satisfied that if Rogers signed a lease with Mr. Jerry, received a Letter of Concurrence from the City of Barrie and a license from Industry Canada, Mr. Jerry would have received yearly rent of $17,500. This rent was contingent on Rogers completing its due diligence. As noted, even if the lease was signed by Rogers, they had an escape clause. They could escape for any number of reasons, including that the Municipality provide a Letter of Non-Concurrence or that Rogers found a suitable co-locate option.

[105] Mr. Jerry subsequently sold the property. He told the Court that his plan to develop a three-storey commercial building was not feasible because of the terms of the lease offered by the City of Barrie for its abutting property. This was a lease that Mr. Jerry needed to provide adequate parking for his concept.

[106] Mr. Jerry sold the property to Metrolynx for $425,000. His evidence was that he sold it several years later. He did not specify the year. No expert evidence was called as to whether or not this sale price was in any way affected by the absence of a lease for the tower site. It is unknown as to whether or not Metrolynx may have paid more if there was an income stream for the tower site, or less because the tower site interfered with their reasonable commercial use of the property as a parking lot.

[107] Clearly, Mr. Jerry’s stream of income for a lease with Rogers would have terminated upon his sale of the land. Even if Mr. Jerry was successful in proving his claim against the Defendants, I am not satisfied that he has proven damages in this case.

Intentional Interference with Economic Relations

[108] The Ontario Court of Appeal dealt with this tort in O'Dwyer. Further, the Supreme Court of Canada considered it again in A.I. Enterprises Ltd. As Cromwell J. stated, at para. 5, “It will be available in three-party situations in which the defendant commits an unlawful act against a third party and that act intentionally causes economic harm to the plaintiff.”

[109] In O’Dwyer, the Court upheld the Plaintiff’s claim for misfeasance in public office but declined to find that the tort of intentional interference with economic relations was made out, stating, at para. 60, “…the circumstances necessary to make out the tort of intentional interference with economic relations are not present in this case.”

[110] I draw a similar conclusion in this case. Mr. Jerry has not proven that Rogers was a victim of an actionable civil wrong perpetrated by the City of Barrie. I therefore dismiss the Plaintiff’s claim with respect to the tort of intentional interference with economic relations.

Costs

[111] The Defendants have been entirely successful in this trial. If the parties are unable to resolve the issue of costs, I will receive written submissions from the Defendants with 20 days from the release of this judgment. Such submissions not to exceed five pages, together with a Bill of Costs. The Plaintiff will then have a further 15 days to respond, with submissions not exceeding five pages, together with a Bill of Costs. Thereafter, the Defendants will have five days to file a brief reply, not exceeding three pages. All correspondence may be sent to my judicial assistant in Barrie.

MULLIGAN J.

Released: January 29, 2020