Court File and Parties

COURT FILE NO.: CV-20-00000027-0000 DATE: 2024 02 01

SUPERIOR COURT OF JUSTICE – ONTARIO 611 Ninth Avenue East, Owen Sound ON N4K 6Z4

RE: FRITTENBURG v. THE CORPORATION OF THE TOWN OF SAUGEEN SHORES et al

BEFORE: Justice Conlan

COUNSEL: Izaak De Rijcke (Present), for the Applicant, Alan Ross Frittenburg. Tammy Grove (Present), for the Respondent, The Corporation Of The Town Of Saugeen Shores. Michael F. Sirdevan (Not Present), for the Respondents, George Adam Clare Simpson and Mary Ann Simpson. Varoujan Arman (Present), for the Respondent, Elizabeth Dal Bianco. Allen Wilford (Not Present), for the Respondent, Grace Marie Leitch. The Respondent, Margot Wolf (Not Present).

RELEASED: February 1, 2024

Endorsement

[1] This is a proceeding involving a property dispute between neighbours in Southampton, Town of Saugeen Shores, County of Bruce.

[2] The proceeding has languished; I accept that some of the delay has likely been the result of the COVID-19 pandemic, given that the originating process was issued in February 2020.

[3] That originating process is an application. The applicant, Mr. Frittenburg, has brought a motion to convert the application into an action. All of the respondents, but one, do not oppose the motion. The one respondent in opposition to the conversion is Ms. Dal Bianco.

[4] Before turning to the issue of conversion, this Court orders/directs as follows. None of what follows is in dispute.

[5] First, looking at Mr. Frittenburg’s Notice of Motion, and the prayer for relief therein (CaseLines, page Master A-13), all unopposed, items (a), (b), (c), (d), (e), and (f) are granted.

[6] Second, this proceeding would benefit from case management. Unless a party objects, I intend to appoint myself as the case management judge. I am already familiar with the subject matter. Because I am chambered in the Central West Region but not in Grey-Bruce, I will not be the trial judge. Those are advantages to the parties. If I am the case management judge, I intend to impose relatively strict deadlines on the parties. A fairly tight timetable. The proceeding must be moved along with some dispatch, not only for the benefit of Ms. Dal Bianco but for everyone involved. Unless there is an objection, I will have someone reach out to all counsel to schedule the first case management conference, by Zoom, without delay. At that first case management conference, we shall discuss items (h) and (i) in the prayer for relief referred to above.

[7] Third, the issue of costs of the motion heard today shall be dealt with in writing. There shall be no costs ordered in favour of or against any party except, perhaps, Mr. Frittenburg and Ms. Dal Bianco. Mr. Frittenburg’s written submissions on costs shall be served and filed within thirty (30) calendar days after today. Ms. Dal Bianco’s written costs submissions shall be delivered within fifteen (15) calendar days after her counsel’s receipt of the written submissions delivered on behalf of Mr. Frittenburg. No reply is permitted. Each submission shall not exceed two (2) pages in length, excluding attachments. Each submission shall be sent by e-mail to SCJGreyBruce@ontario.ca and to Sara.Stafford@ontario.ca .

[8] Now, on the main issue of conversion, item (g) in the prayer for relief referred to above, the reader will observe from the above orders/directions already made that Mr. Frittenburg’s request is granted. This Court orders that the application shall be converted into an action.

[9] Why has this Court made that order? In my view, on balance, looking at the well-settled test referred to at paragraph 15 of the decision of Kristjanson J. in Fountain Asset Corp. v. First Global Data, 2017 ONSC 4780, citing the decision of Firestone J. (as His Honour then was) at paragraphs 5-8 in Przysuskiv v. City Optical Holdings Inc., 2013 ONSC 5709, it is in the interests of justice to have the proceeding constituted as an action.

[10] Remember, the factors outlined in those two decisions are not exhaustive. In our case, there is another distinct advantage to Ms. Dal Bianco in having the case converted into an action. She will then, if she chooses, be able to move for summary judgment, something that is not currently available to her with regard to a Rule 14 application – Maurice v. Alles, 2016 ONCA 287. If Ms. Dal Bianco is correct that the case against her is tenuous at best (my expression), then she will surely avail herself of the summary judgment remedy.

[11] I will now turn to the factors outlined in the jurisprudence cited above.

[12] Are there material facts in dispute? I agree with Mr. Arman’s able submissions that the evidence of Ms. Dal Bianco (her affidavits and her answers to the questions posed of her by counsel for Mr. Frittenburg during the out-of-court examination) appears to be quite strong and internally consistent. I disagree, however, that it is entirely uncontradicted. For example, if one looks at the markings on the photograph at CaseLines, page B-1-25, the property line indicated by Ms. Dal Bianco looks different than that indicated in the provisional Plan of Survey and the anticipated expert evidence of Mr. R.J. Stewart, Ontario Land Surveyor, who presumably would testify at trial on behalf of Mr. Frittenburg.

[13] Is this a case where the issues to be determined do not go beyond the interpretation of a document? No, it is not. Using the example above, Ms. Dal Bianco would say that the Plan of Survey is wrong, as such a document can be, and that her own evidence about the historical use/non-use of the footpath to the waterfront, and where each property’s boundaries really are, should be preferred.

[14] Is this a case where the hearing judge could likely, or likely not, be able to determine the issues on a paper record? I think that it is very unlikely that a judge could do so. If I was the judge, I would want to hear testimony from Mr. Stewart. I would want to have his proposed expert opinions tested in cross-examination. I would want to give Ms. Dal Bianco an opportunity to commission her own expert evidence, if she chooses, and then receive that expert evidence at trial. I would want to hear from the other neighbours as to what extent they agree or disagree with Ms. Dal Bianco.

[15] Are there issues of credibility involved? Yes, there are. Why is the Plan of Survey different than the provisional Plan of Survey? Ms. Dal Bianco may be interested to have her counsel pose that question to Mr. Stewart. Mr. Frittenburg may want to have his counsel challenge Ms. Dal Bianco’s evidence about where the boundaries are given, for instance, the one photograph in Ms. Dal Bianco’s motion materials which appears to show the hedge encroaching over the clearly visible property stake.

[16] Are there complex issues involved here, ones that may require expert evidence and the weighing of evidence? Definitely. One proposed expert, Mr. Stewart, is involved already. Others likely will be. Easements, rights-of-way, real property title documents and the legal descriptions of the properties contained therein, plans of survey, and so on – these are not simple concepts or straightforward documents that judges deal with on a regular basis.

[17] Is there a need for pleadings and discoveries? Yes, as Mr. Arman will surely want to examine Mr. Frittenburg about what evidence he has to contradict that of Ms. Dal Bianco. Mr. Arman may even want to try to examine a non-party, Mr. Stewart, ahead of trial. Mr. de Rijcke will surely want to question Ms. Dal Bianco about matters that he did not touch on during her previous examination which, this Court can safely conclude after reading the transcript thereof, was a relatively brief examination that was confined to the motion. Further, as it stands currently, the record, on all sides, is replete with multiple affidavits sworn/affirmed by the same deponent. That is not helpful in terms of getting a good grasp on what the material facts are that each party relies on. Just the facts please, as we sometimes say. Pleadings, a statement of claim and a statement of defence included, will hopefully set out those material facts in a more comprehensible and in a more succinct way.

[18] Finally, nobody would reasonably dispute that this proceeding is very important to everyone concerned, including Mr. Frittenburg and Ms. Dal Bianco. In fact, that is clearly evident in Ms. Dal Bianco’s affidavits and in the transcript of her out-of-court examination. She is clearly concerned, for good reason, about the wide-sweeping relief being sought by Mr. Frittenburg. She is, for good reason, wanting to fight hard to protect her property for herself, for her family, and for her heirs. This Court has adjudicated many of these neighbour property disputes, and without exception they have been passionate affairs. This one will be, too.

[19] I know that Ms. Dal Bianco is concerned about her age and her health. This Court assures her, and all parties, that the proceeding will not be permitted to spin its wheels and proceed at the unacceptably slow pace that it has to date.

[20] Converting an application to an action is not a licence to engage in some interminable march to some amorphous end. The end will be clearly defined, whether a trial or a step short of a trial. The route to the end will be closely managed on a reasonable but focussed and relatively strict timetable.

[21] These are the reasons why the Court granted the motion to convert the application into an action, despite the able arguments advanced by Mr. Arman.

Conlan J. Released: February 1, 2024