Court File and Parties

CITATION: Chitaroni v. Coleman (Township), 2024 ONSC 2239 COURT FILE NO.: CV-18-219 DATE: 2024/04/17

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: In writing

REASONS FOR DECISION ON COSTS

M.G. Ellies J.

Overview

[1] This is the fourth, and final, part of a summary judgment motion that was originally represented by the moving party, The Corporation of the Township of Coleman, (“the Township”), as having the potential to dispose of the entire action against it, but which it later conceded could not. Instead, the original summary judgment hearing spawned two further hearings, neither of which completely disposed of the plaintiffs’ claims.

[2] Both sides now claim victory and seek costs in this stark reminder of the wisdom of the Court of Appeal’s decision in Butera v. Chowns, Cairns LLP 2017 ONCA 783, at para. 29, that partial summary judgment motions can be the anathema to the objective of proportionate, timely, and affordable justice that r. 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, seeks to achieve.

[3] The Township seeks partial indemnity costs in the amount of $69,638.46, inclusive of HST and disbursements. The plaintiffs seek partial indemnity costs in the all-inclusive amount of $28,392.61.

[4] For the following reasons, the plaintiffs shall pay a substantial portion of the Township’s partial indemnity costs for Part 1 of the motion and the parties shall bear their own costs relating to Parts 2 and 3.

Background

[5] The facts in this matter have been set out in detail in my reasons for decision in Parts 1, 2, and 3: Chitaroni v. Coleman (Township), 2020 ONSC 137; Chitaroni v. Coleman (Township), 2023 ONSC 2432; Chitaroni v. Coleman (Township), 2023 ONSC 5978. Briefly put, the plaintiffs are the natural and corporate progeny of Albert Chitaroni, who sought to develop a subdivision on Portage Bay, near Cobalt, Ontario. The lots in the plan of the subdivision lie to the north and to the south of a lodge Albert built with his brothers called Portage Bay Lodge. Although Albert managed to sell or lease all of the lots on the plan of subdivision, the road leading to the lots in the south, “Road A”, was never assumed by the Township as originally planned because part of the road turned out to be situated on land owned by Albert's nephew, Paul Chitaroni.

[6] In an action commenced in 2018, the plaintiffs sought a declaration that Road A was a public road, a common road, or an access road. They also sought damages against the Township for “misfeasance and/or malfeasance” in public office.

[7] In Part 1 of the motion, I dismissed the plaintiffs’ claim for a declaration that Road A was a public road. In Part 2 of the motion, I dismissed the plaintiffs’ claim that Road A was a common road. In Part 3 of the motion, I winnowed down the plaintiffs’ claim for misfeasance in public office and ordered that the misfeasance claim and the access road claim could proceed to trial.

Issues

[8] The Township submits that it was the more successful party because I dismissed two of the four claims against it and only kept the Township involved as a party to the access road claim because it is already a party to the misfeasance claim.

[9] The plaintiffs contend that the misfeasance claim is really the heart of their claim. They submit that, because of the Township’s misrepresentation as to the dispositive nature of the motion for summary judgment and because the misfeasance claim survived, the Township should be deprived of its costs throughout and that they should be awarded their partial indemnity costs for Parts 2 and 3.

Analysis

[10] In my view, the Township’s submission that it was the more successful party focuses too much on the “judgment” part of the summary judgment motion, and not enough on the “summary” part. The Township misrepresented the nature of the plaintiffs’ claim in the initial motion by suggesting that a decision on the public road issue would be entirely dispositive of the plaintiffs’ claim. Regardless of whether this misrepresentation was advertent or inadvertent, because of it, what should have been a summary matter turned into anything but. Had the misrepresentation not been made, I would have dismissed the summary judgment motion on the basis of the Court of Appeal’s decision in Butera. For this reason, I do not believe that it is appropriate to view the Township’s success on the public road issue as a complete victory.

[11] With respect to the plaintiffs’ submissions, I do not accept the submission that the misfeasance claim was their main claim. I agree with the Township that the public road claim was the focal point of the plaintiffs’ Statement of Claim and the evidence adduced on the motion supports an inference that it was the focus of their efforts long before the statement of claim was ever issued. For that reason, the Township should be awarded some costs with respect to the decision in its favour in Part 1 on that issue.

[12] With respect to Parts 2 and 3, it is my view that neither side should be awarded costs. The focus of Part 2 was on the Township’s submission that the balance of the plaintiffs’ claims should be dismissed notwithstanding that they are not derivative of the public road claim. While I did dismiss the common road claim, I allowed the misfeasance claim to proceed.

[13] The focus in Part 3 was on which part of the plaintiffs’ claims should be allowed to proceed to trial. As I made clear in my reasons for decision in Parts 2 and 3, the plaintiffs’ pleading was far from ideal. The statement of claim failed to clearly identify the material facts upon which the plaintiffs relied (for example, the Township’s power of expropriation) and contained allegations that could neither constitute their own cause of action nor support any other (for example, the allegation about the improper transfer of parcels 12918 and 12907 in 1975).

[14] It is trite to say that the issue of costs is a highly discretionary one under s. 131 of the Courts of Justice Act, R.S.O. 1990, Chap. C.43. While r. 57.01 lists a number of factors the court may consider, in the final analysis, the court must fix costs in a way that is fair and reasonable in the circumstances: Boucher v. Public Accountants Counsel for the Province of Ontario (2004), 71 O.R. 3d 291 (C.A.); Davies v. Clarrington (Municipality) (2009), 2009 ONCA 722, 100 O.R. 3d 66 (C.A.).

Conclusion

[15] In the circumstances of this case, for the reasons I have outlined above, I believe that it is fair and reasonable that the Township be awarded only some of its partial indemnity costs regarding Part 1 and that the parties bear their own costs regarding Parts 2 and 3.

[16] With respect to the amount of the Township’s partial indemnity costs for Part 1, I agree with the plaintiffs that roughly 30 percent of the total time for which the Township seeks its costs relates to Parts 2 and 3, and not 20 percent, as suggested on behalf of the Township. By my calculation, this amounts to $41,140.02 for fees. Of this amount, I would award $30,000.00 for fees, inclusive of HST.

[17] I am unable to tell from the list of disbursements provided by the Township exactly which ones pertain to Part 1 versus Parts 2 and 3. However, I am reasonably confident that roughly $3,000.00 of the disbursements claimed, inclusive of HST, relate to Part 1. Therefore, I order that the plaintiffs pay the Township the sum of $33,000.00, all-inclusive, as costs for the summary judgment motion.

Released: April 17, 2024 M.G. Ellies J.