Court File and Parties

Court File No.: CV-18-219 Date: 2023/10/25 Ontario Superior Court of Justice

Between: GINO CHITARONI AS THE ESTATE TRUSTEE FOR THE ESTATE OF ALBERT CHITARONI, GINO CHITARONI, NINA CHAMAILLARD, MARIO CHITARONI and PORTAGE BAY DEVELOPMENTS INC. Plaintiffs – and – THE CORPORATION OF THE TOWNSHIP OF COLEMAN and PAUL CHITARONI Defendants

Counsel: Mark Vernon, for the Plaintiffs David G. Boghosian and Matt Brown, for the Defendant, The Corporation of the Township of Coleman

Heard: September 7 and 19, 2023

Reasons for Decision

M.G. Ellies R.S.J.

Overview

[1] This is Part 3 of a summary judgment motion brought by the defendant, The Corporation of the Township of Coleman (“the Township”), under r. 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[2] In Part 1, I granted summary judgment in favour of the Township and dismissed the plaintiffs’ claim for a declaration that a particular road was a public road: Chitaroni v. Coleman (Township), 2022 ONSC 137. In Part 2, I dismissed the plaintiffs’ claim that the road in question was a common road. I allowed the plaintiffs’ claim that the road was an access road and their claim for misfeasance in public office to proceed to trial. However, I ruled that certain allegations that were either connected with the dismissed claims or incapable of supporting the remaining claims would not proceed to trial and ordered plaintiffs’ counsel to provide additional submissions in support of the remaining allegations: Chitaroni v. Coleman (Township), 2023 ONSC 2432.

[3] For the following reasons, the remaining claims referred to below shall be permitted to proceed to trial, with the exception of the claim for negligent transfer of real property.

Background

[4] I have already set out the background facts in the previous two parts and will not repeat any of them here. Instead, I will set out the salient facts in the context of my analysis of the specific claims in question.

Issue

[5] Rule 20.05 grants the court wide powers to ensure the expeditious trial of actions which are not disposed of under r. 20. Rule 20.05(1) provides that the court may make an order defining the issues to be tried.

[6] In Part 2, I ruled that certain allegations made in connection with the plaintiffs’ claim for misfeasance in public office were incapable of supporting that allegation and dismissed those allegations. The issue in this part is whether the remaining claims should also be dismissed.

Analysis

Negligently Transferring Parcel 12907 in 1975

[7] The plaintiffs allege that the Township was negligent when it transferred parcel 12907 to Carlo and Elio Chitaroni in February 1975. They acknowledge that the limitation period in connection with such a claim expired a long time ago. However, they seek to rely on this allegation as evidence of the Township’s intent to injure in connection with their claim for misfeasance in public office. They also seek to rely on this allegation in support of an argument that the Township should be estopped from taking a position that they have no obligation to correct the predicament in which the plaintiffs now find themselves. However, neither one of these grounds has been pleaded in connection with the negligent transfer allegation.

[8] The negligent transfer allegation is set out under the heading “Material Background Fact” in the amended statement of claim. The allegation forms no part of the allegations set out under the heading “The Liability of the Defendants”. There is no allegation that any member of council believed that the property had been negligently transferred, which would be an essential fact if this allegation was relied upon to prove intent to injure. Nor is any mention made of the possibility of an estoppel argument anywhere in the Amended Statement of Claim.

[9] Instead, the plaintiffs’ submissions in connection with this allegation appear to be an attempt to pigeonhole the allegation into my discussion of the law of misfeasance in public office set out in Part 2. In Part 2, I expressed the view that the evidence of negligent transfer could only be relevant if it provided evidence of intent to injure. It is clear from the Amended Statement of Claim that the plaintiffs never intended to rely on this allegation in support of their claim for misfeasance in public office. Rather, the word “negligent” was used to colour the background fact that Parcel 12907 is now owned by Paul Chitaroni.

[10] For this reason, the plaintiffs will not be permitted to advance the negligent transfer allegation at trial.

The Failure to Follow Previous Precedents, Coercion, Bad Faith, and Misleading into Further Investments Allegations

[11] Unlike the negligent transfer allegation, the allegations of failure to follow previous precedents; coercion; unreasonableness, bias and bad faith; and misleading into further investment allegations all form part of the plaintiffs’ claims for damages under the heading “The Liability of the Defendants”. As such, I believe the allegations should be permitted to go to trial.

The Failure to Identify the End of the Road Allegation

[12] In Part 2, I wrote that if the plaintiffs had no more evidence than the letters from Mario and Gino Chitaroni in support of this claim, the claim would not be permitted to go to trial. As I indicated, both letters appear to be a thinly disguised attempt to have the Township assume jurisdiction over the disputed portion of the road in question. However, in reviewing the evidence again, I have reconsidered my position. While I am still of the view that the evidence has questionable value as evidence of intent, it will not add much to the length of the trial to permit the introduction of the letters and any response.

Failing to Create and Maintain Accurate Records

[13] I am satisfied that this allegation should also go to trial. Like the allegation relating to the failure to identify where Portage Road ends, the evidence in support of this allegation will not add much to the length of the trial. Because of the historic nature of the claims in question, I accept that a good portion of the evidence in support of the other allegations will be document based. This allegation will consist mainly of a legal argument layered on top of that evidence.

Conclusion

[14] For the foregoing reasons, the plaintiffs will not be permitted to introduce evidence in support of the allegation that Parcel 12907 was negligently transferred in 1975. However, the remaining allegations listed above will be permitted to proceed to trial.

Costs

[15] These reasons finally dispose of the summary judgment motion. It seems to me that success on the motion was mixed. Although the Township succeeded in having two of the plaintiffs’ claims dismissed, two of their claims have survived.

[16] If the parties cannot agree on costs, they may make written submissions, limited to five type-written pages, excluding attachments, as follows:

(1) on behalf of the Township, within 30 days of the release of these reasons;

(2) on behalf of the Plaintiffs, within 30 days of receipt of the Township’s submissions.

[17] As I advised the parties during the hearing, I am assigning another judge to try this case. However, I would like to convene a pre-trial conference for the purpose of exploring settlement in this matter. Arrangements for a one-half day conference may be made through the office of the trial coordinator.

M.G. Ellies R.S.J. Released: October 25, 2023