Court File and Parties

COURT FILE NO.: CV-23-00693161-0000 DATE: 20241213

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

DOMENIC A. MEFFE Plaintiff – and – CORPORATION OF THE CITY OF TORONTO Defendant

Counsel: In person (for the Plaintiff) Georgia Tanner, for the Defendant

HEARD: December 10, 2024

Papageorgiou J.

Overview

1The plaintiff, Mr. Meffe, is a disappointed land developer.

2He brings this action against the City of Toronto (the “City”) seeking costs and damages as a result of the denial of his application for site plan approval with respect to 1982 Islington Avenue (the “Property”).

3The City brings a motion to strike the plaintiff’s claim pursuant to r. 21.01(1)(a), and 21.01(3)(b) and (d).

Decision

4For the reasons that follow, I dismiss this case as a collateral attack on administrative decisions made in the context of the plaintiff’s application for site plan approval.

Issues:

• Issue 1: Is this proceeding an abuse of process such that it should be dismissed pursuant to r. 21.01(3)(d)?
• Issue 2: Should the claim be struck pursuant to r. 21.01(3)(b) on the basis that the plaintiff lacks capacity to bring the claim?
• Issue 3: Should the claim be struck pursuant to r. 21.01(1)(a) on the basis that it is statute barred?
• Issue 4: Should the plaintiff be given leave to amend to cure any defects?

Analysis

Issue 1: Is this proceeding an abuse of process such that it should be dismissed pursuant to r. 21.01(3)(d)?

5The moving party succeeds in this argument.

6Rule 21.01(3)(d) provides that a defendant may move before a judge to have an action stayed or dismissed on the ground that it is “frivolous, vexatious or an abuse of process.”

The Plaintiff’s Claim

7The basic facts pleaded in the Statement of Claim are as follows:

8In 2017, the corporation Dixil Properties Inc., purchased the Property. Dixil is 60 % owned by Domenic A. Meffe Inc. The plaintiff is the sole and majority shareholder of Domenic. A. Meffe Inc. There is an existing heritage building on the Property.

9In 2014 the plaintiff applied for a site plan approval to redevelop the Property which included a request for minor variances. His application included retention of the existing heritage building with a six-story addition to include an office, institutional and restaurant uses.

10In 2017 the City’s planning department denied this application on the basis that the proposed “office use for the new addition required a zoning and Official Plan Amendment application.”

11The plaintiff then submitted two variance applications in respect of the Property to the Committee of Adjustments (the “COA”), both of which were denied in 2018.

12The plaintiff then submitted his appeal to the Toronto Land Appeal Board (the “TLAB”).

13After a three-day hearing, on January 29, 2021, the TLAB issued a 30-page decision upholding the decision of the COA. The plaintiff then requested a review of the TLAB decision, which decision was then confirmed on April 29, 2021.

14The plaintiff then determined that he would revise his proposal and remove the “office use” in the proposed addition and seek the City’s support for this.

15The plaintiff then engaged in a Pre-Application Consultation process (“PAC”). A PAC is contemplated in both the Planning Act and the City of Toronto Act, 2006 and is for advising on what is required to submit a complete application for redevelopment as prescribed under the Planning Act and the City's Official Plan.

16The plaintiff attended a PAC meeting on September 23, 2021. Ten City department officials attended.

17The plaintiff then brought this proceeding on January 18, 2023, against the City of Toronto.

18The plaintiff’s claims can be grouped in the following categories.

The TLAB and COA

19Throughout the Claim the plaintiff makes various allegations that the TLAB and COA decision makers were “unfair”, “unreasonable”, that they “frivolously and unjustly denied the appeal” and that they failed to consider “merit, reasonableness, probability, or logic.” He also references the witness and documentary evidence that was placed before these bodies. He provides detailed reasons and analysis of why the COA and TLAB decision are wrong.

The PAC Committee

20He asked the PAC Committee whether the planning department supported the parking and height variances he intended to request in a new application, and whether previously submitted reports were acceptable to proceed with a new site plan application process. The PAC breached its duty to him when it did not respond.

The City

21In rejecting his initial application and in its position in the litigation that ensued, the City acted in bad faith and contrary to explicit policies and intent of the Official Plan, the zoning By-Law and the applicable legislation.

22The City provided deliberately misleading evidence and provided contrived arguments at the hearing before the TLAB.

23The City is the sole authority for all planning matters. The City is responsible for City departments and tribunals that are under the City’s control including the planning department, the COA, the TLAB and the PAC committee. The City abused its power. The City’s Planning Department and various tribunals prejudiced the plaintiff’s right to a fair and reasonable process which led to the denial of his application for redevelopment.

Relief Sought

24Paragraph 1 of the Statement of Claim requests costs incurred in his redevelopment applications including $450,000 to provide and submit materials to the City, and the lost opportunity of having been able to develop the Property.

25It states that “For clarity, this claim does not seek zoning or planning approvals but only the costs, and damages as a result of the denial of process resulting in the denials of the approvals sought.”

Abuse of Process

26There are many reasons why all claims that culminated in the TLAB review decision dated April 21, 2021 are an abuse of process:

• To the extent he claims liability against the City of Toronto in respect of the actions or the decisions of the COA or TLAB, their actions and decisions are protected by the principle of absolute privilege. This applies irrespective of whether or not a judicial decision is proper and whether or not there has been bad faith: [Tsai v. Klug, 2006); Ettinger v. Peters, 2010 ONSC 169 at para 5, 156621 Canada Limited v. Ottawa City, 2004). If these bodies have absolute privilege, the City could not be vicariously liable for anything they have done.
• Although there are various claims against the City of Toronto that relate to the way in which it conducted the litigation before the COA and TLAB, (in particular its alleged failure to bring certain documents to the attention of the COA and the TLAB as well as alleged misrepresentations of the evidence) the doctrine of absolute privilege applies to words spoken in the ordinary course of any proceedings before any court or tribunal. This extends to documents and statements made in that proceeding: Salasel v. Cuthbertson, 2015 ONCA 115 at para 35.
• The proceedings were adversarial. The plaintiff provided no authority to support the proposition that the City was not entitled to litigate the matter in its own interests. “Ordinarily, to state the obvious, the interests of the opposing party are in conflict”: [Geo. Cluthe Manufacturing Co. Limited et al. v. ZTW Properties Inc. et al, 1995).”
• The plaintiff could have, and indeed did, bring his concerns about inaccurate evidence about missing reports to the TLAB’s attention through cross examination. It still made its decision in favour of the City.
• To suggest that the plaintiff can sue the City on the basis that he disagreed with the City’s evidence and submissions before the TLAB and the COA, that the TLAB and the COA accepted, is essentially the same thing as seeking to relitigate the matters that were before the TLAB and the COA. Indeed, that is exactly what the plaintiff did before me. He reviewed all the reasons he feels that the COA and the TLAB were wrong.
• It is also unclear what successful cause of action the plaintiff could possibly have against the City of Toronto in respect of its initial rejection of his request for approval of his site plan in 2017. This decision was confirmed by the decisions of the COA and TLAB who would not grant a variance either. Even though the plaintiff sought to argue that everything he wanted to do was already something approved within the Official Plan, in March 2018, the COA provided the following reasons for dismissal of his application, which was then upheld by the TLAB:
  • The general intent and purpose of the Official Plan is not maintained.
  • The general intent and purpose of the Zoning By-law is not maintained.
  • The variance(s) is not considered desirable for the appropriate development of the land.
  • In the opinion of the Committee, the variance(s) is not minor.
• In other words, the City of Toronto’s denial in 2017 was upheld on legal and factual grounds which have never been overturned.
• The plaintiff could have but failed to appeal the decision of the TLAB to the Divisional Court pursuant to s. 115(9) of the City of Toronto Act. The matter is now res judicata.
• As such, all claims relating to the plaintiff’s planning applications that culminated in the dismissal by the TLAB are an abuse of process because they are a collateral attack on decisions made by various administrative bodies within the City of Toronto: Khan v. Law Society of Ontario, 2021 ONSC 6019, at para 34; 1806700 Ontario Inc. v. Khan, 2018 ONSC 6364 at para 61 and 68; Salasel v. Cuthbertson, 2015 ONCA 115 at para 22.

27With respect to events that took place after the TLAB dismissed the plaintiff’s request for reconsideration, the plaintiff has not articulated a viable cause of action.

28As noted, the particulars of this claim are that the PAC failed to indicate whether the planning department supported the parking and height variances he intended to request in a new application, and whether previously submitted reports were acceptable to proceed with a new site plan application process.

29At the hearing before me, the plaintiff argued that the City had a duty to provide him with this information. Therefore, it seems to me that the cause of action alleged is negligence. It is trite that to establish negligence a party must prove the existence of a duty of care, that the standard of care was breached and that the breach of the duty caused him harm.

30However, the plaintiff provided no caselaw to support the existence of a duty of care to him of this nature. In my view, it would be difficult to establish the City owes a duty of care to a developer. The City is responsible for approving or not approving applications as part of its municipal mandate pursuant to legislation, where it acts in the public interest. A duty of care to an applicant developer could place the City in a conflict of interest.

31As well, allegations of negligence must be pleaded with particularity and there are insufficient particulars: Cerquiera v. Ontario, 2010 ONSC 3954 at para 111.

32Even if the PAC or City owed the plaintiff a duty of care to obtain this information for him, the plaintiff’s own pleading says that he decided not to exercise his right to continue with another land-use planning application.

33The City cannot be responsible in law for lost opportunities from a possible land-use planning application that the plaintiff could have, but did not bring. Launching a claim of this nature is an abuse of process because it seeks to hold the City liable for an alleged harm that the plaintiff suffered due to his own decision, in circumstances where it cannot be known what the outcome would have been if he had simply proceeded with his revised application.

34Additionally, the Claim is filled with bald allegations of bad faith which also supports the conclusion that this claim is an abuse of process: Kahn v. LSO at para 35.

Issue 2: Should the claim be dismissed pursuant to r. 21.01(3)(b) on the basis that the plaintiff lacks capacity to bring the claim?

35Rule 21.01(3)(c) provides that a defendant may move before a judge to have an action dismissed on the grounds that the plaintiff is without legal capacity to commence or continue the action.

36As noted above, the plaintiff does not own the Property. It is owned by a corporation Dixil who is not a plaintiff.

37Even if he is a shareholder, shareholders of a corporation do not have a cause of action for alleged wrongs to the corporation: Hercules Management Ltd. v. Ernst & Young at para 59; Grant v. Town of Collingwood, 2013 ONSC 1720 at para 60 aff’d CA.

38I reject the plaintiff’s argument that because he is the alter ego behind Dixil, he is in the best position to access and put forwards the facts and evidence in this matter and that it would be in the interests of justice to permit him to pursue this claim.

39I note that if this was the only problem with the Claim, the City of Toronto agreed that Dixil could be substituted for the plaintiff.

Issue 3: Should the claim be struck pursuant to r. 21.01(1)(a) on the basis that it is statute barred?

40Under r. 21.01(1)(a) a party can seek a determination before trial of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action. No evidence is admissible without leave of the court.

41The Court of Appeal has confirmed that where there are no material facts in dispute, limitation period issues can be determined pursuant to this rule: Davidoff v. Sobeys Ontario, 2019 ONCA 684 at para 14.

42However, given that this matter is already being struck as an abuse of process, there is no need to consider this argument.

Issue 4: Should the plaintiff be given leave to amend to cure any defects?

43Leave to amend will only be denied in the clearest of cases when it is plain and obvious that no tenable cause of action is possible on the facts as alleged and there is no reason to suppose that the party could improve his or her case by any amendment: Mitchell v. Lewis, 2016 ONCA 903, 134 O.R. (3d) 524, at para. 21; Conway v. Law Society of Upper Canada, 2016 ONCA 72, 395 D.L.R. (4th) 100, at para. 16; South Holly Holdings Ltd. v. The Toronto-Dominion Bank, 2007 ONCA 456, at para. 6.

44There are a number of reasons why I would not grant leave to amend.

45In Kahn v. LSO at para 36, the court held that where a claim is a collateral attack on prior administrative tribunal decisions, there is no prospect that the pleading could be amended to cure the defect.

46The plaintiff says that in October 2023 he requested and obtained the defendant’s consent to serve an amended claim. However, as of the date of this motion, the plaintiff has not. Had there been amendments that could cure the defects, the plaintiff had already received consent to amend and did not do so.

47Although the plaintiff would like to plead fraud, what he described as the alleged fraudulent conduct was all of the same things related to the various proceedings, already pleaded. Recasting this case as fraud is just another attempt to get around the decisions of the COA and the TLAB by calling the alleged conduct something different. Additionally, fraud must be pleaded with particularity pursuant to r. 25.06(8) and the plaintiff could not provide sufficient particulars of this alleged fraud.

48Although he would also like to recast his claim as one of principle in order to hold City officials and personnel accountable, there is a specific process established in the legislation relating to land use approval. The City has a planning department that makes decisions to approve or not approve at first instance. Those decisions can be appealed to the COA, whose decisions can be appealed to the TLAB. Then, if a party is still unsatisfied, they can proceed to the Divisional Court.

49All the things that the plaintiff wishes to argue regarding the failure of the COA and the TLAB to provide a due fair process could have and should have been raised before the Divisional Court. This is the way accountability is achieved.

50The plaintiff had the opportunity and failed to persuade these expert administrative bodies that the City was wrong in its assessment, or that it had done anything wrong, notwithstanding all of the same submissions and arguments made before me. In the circumstances, to the extent he is seeking to recast his claim as involving alleged misfeasance in public office, that claim is also bound to fail.

51This matter is res judicata no matter how the plaintiff tries to recast it: Salasel v. Cuthbertson at para 22.

52Therefore, I do not grant leave to amend.

Conclusion

53The motion is granted and the action is dismissed.

54If the parties cannot resolve costs, they may make submissions as follows: the City within 5 days and the plaintiff within 5 days thereafter no longer than 5 pages each.

Papageorgiou J.