Court File and Parties

Court File No.: CV-23-82314
Date: 2025-02-19
Ontario Superior Court of Justice

Between:
Tara-Lee Daniel (Applicant)
– and –
Michael Angelo Rizzo, Steve Dumanski, Michael Dibden, Karen Smith, Edward Hood, and Carol Hood (Respondents)

Appearances:

• Samuel Nash, counsel for the Applicant
• Barry Yellin, counsel for the Respondent Michael Rizzo
• Ken Rosenburg and K. Fan, counsel for the Respondents S. Dumanski, M. Dibden, K. Smith, E. Hood, and C. Hood

Heard: January 23, 2025

Amended Judgment on Application

Justice L. Sheard

Overview

[1] This application is brought by Tara-Lee Daniel (“Daniel”) pursuant to ss. 2 and 3 of the Partition Act, R.S.O. 1990, c. P.4, for an order directing the listing and sale of two properties she owns with the respondent, Michael Angelo Rizzo (“Rizzo”), acquired while they were in a relationship between 2018 and 2022.

[2] The properties are:

i) a cottage property located at 24 Fire Route 363A, Trent Lakes, Ontario, K0M 2A0, on which Daniel and Rizzo are 50/50 owners as tenants-in-common (“Trent Lakes”); and

ii) a residential property at 7429 Jonathan Drive, Niagara Falls, Ontario, on which Daniel is a 1% owner and Rizzo a 99% owner (the “Niagara Falls Property”).

[3] While on good terms, Daniel and Rizzo bought Trent Lakes. It was used as a family cottage for Daniel, her children, and Rizzo, and also for short-term vacation rentals. It was purchased using funds from the sale of a cottage owned by Rizzo and a mortgage. Rizzo was unable to obtain a mortgage on his own, so Daniel agreed to co-sign the mortgage, in return for which she would receive a 50% ownership of Trent Lakes.

[4] The relationship between Daniel and Rizzo came to a final end in September 2022. Daniel no longer used Trent Lakes and asked Rizzo to remove her name from title to the properties and from the mortgages. Rizzo failed or refused to do either, which led Daniel to bring this application. Notwithstanding her ownership interests in the properties, Daniel does not seek to share in any net sale proceeds realized on the sale of the properties.

[5] At the outset of this hearing, the court was advised that the parties had reached a settlement with respect to the Niagara Falls Property. The parties were invited to submit an Order for me to sign, which embodied the settlement.

Issue to Be Determined

[6] Rizzo’s position on this application was that Trent Lakes ought not to be sold. However, midway through this hearing, Rizzo withdrew his opposition to its sale. He agreed that an order for the sale (“Sale Order”) could proceed on the terms proposed by Daniel (attached at Schedule “C” to her Factum), save and except for para. 1.e. of the proposed order, which Rizzo did not wish to be included. Para. 1.e. reads as follows:

The Parties shall include a term of the agreement of purchase and sale of Trent Lakes that the subsequent purchaser sign the planning application, attached hereto as Schedule “A”, and cooperate expeditiously and in good faith at all times to take all other steps necessary to grant a deeded and surveyed permanent right-of-way for persons, animals, and vehicles over the areas included in the planning application.

[7] As a result, the only substantive issue to be decided by the court is whether the Sale Order should include para. 1.e.

Factual Background

[8] When Daniel and Rizzo bought Trent Lakes, the Agreement of Purchase and Sale included a Schedule “C”. By signing Schedule “C”, Daniel and Rizzo acknowledged that there “may be a driveway through the northeast corner” of Trent Lakes, which provides access to three neighbouring properties. They also agreed that, “if in fact” there was such a driveway, provided that by November 17, 2024, the other affected property owners (defined herein as “the Neighbours”) paid the costs of a survey and the Planning Act process applicable to grant a permanent right-of-way, Daniel and Rizzo “for themselves and successors in title” would cooperate “expeditiously and bona fide at all times to grant a deeded and surveyed right-of-way” (the “ROW”) to one or all of the Neighbours.

[9] The Neighbours assert that in reliance upon Schedule “C”, they obtained and registered a survey, had their lawyer prepare a consent application for the ROW, which was sent to Daniel and Rizzo for approval and signature in January 2022. They assert that Daniel and Rizzo refused to sign the application, seeking to impose conditions that were not included in Schedule “C”.

[10] In March 2023, the Neighbours sued Daniel and Rizzo[^1] for specific performance of Schedule “C” and other relief (the “Toronto Action”)[^2]. The Neighbours claim that Rizzo and Daniel breached their obligations under Schedule “C” by refusing to execute the consent Planning Act application documents, required to obtain and register the ROW. The Toronto action is ongoing.

[11] Daniel and Rizzo delivered separate statements of defence to the Toronto Action. In her Defence, Daniel admits that pursuant to Schedule “C”, she was “obligated to cooperate expeditiously and bona fide” to provide and register the permanent right-of-way in favour of the Plaintiffs.[^3]

[12] Daniel reached a resolution with the Neighbours in the Toronto Action which provides, in part, that she would seek as a term of any court-ordered or voluntary sale that any subsequent purchaser be required to sign the planning application for the ROW, to cooperate expeditiously and in good faith at all times, and to take all other steps necessary to grant the ROW.

[13] Daniel submits that the essence of her resolution with the Neighbours does no more than to give effect to what she believes she agreed to when she executed Schedule “C”.

[14] In his Defence to the Toronto Action, Rizzo denies that Schedule “C” entitled the Neighbours to apply for or obtain an easement[^4], asserting that Schedule “C” refers to a “right of way”, not to an easement. Rizzo also disputes that the Neighbours are entitled to the ROW or to any “prescriptive easement”.

[15] By way of consent order dated April 18, 2024, the Neighbours were added as parties to this application for the limited purpose of allowing them to make submissions that, should an order be made, the court should direct that the sale of Trent Lakes provide for the ROW.

[16] Specifically, the Neighbours ask that any sale order should require any subsequent purchaser to:

(a) sign the consent Planning Act Application and any updated version of the form; and
(b) cooperate expeditiously and in good faith at all times to take all other steps necessary to grant a deeded and surveyed permanent right-of-way for persons, animals, and vehicles over the areas included in the Survey.

[17] On this application, Rizzo submits that to include para. 1.e. in the Sale Order and/or the terms proposed by the Neighbours, would be tantamount to granting the Neighbours the judgment they seek in the Toronto action, without a trial or hearing on the merits.

Analysis

[18] Rizzo acknowledges that there is a prima facie right of a co-owner of property to partition or sale in the absence of sufficient reason for the court to exercise its discretion to refuse the order and that the basis for finding a sufficient reason to deny the application is limited to circumstances where the applicant has acted maliciously, oppressively, or with a vexatious intent toward the respondent.

[19] There is an extensive record before this court. Had Rizzo not conceded that Trent Lakes be sold, I would have ordered its sale. In my view, the reasons he put forth to resist the sale of Trent Lakes were contradicted by the factual record, including admissions he made on cross-examination. I see no evidence that Daniel acted “maliciously, oppressively, or with a vexatious intent toward” Rizzo.

[20] I find that the grounds raised by Rizzo in support of the delay or dismissal of the application or to direct a trial, to be devoid of merit.

[21] In his factum, Rizzo submitted that “it is clear” that Trent Lakes “was subject to a business arrangement” between Daniel and Rizzo; that it was not a “matrimonial property”, and that Daniel disclaims any financial interest in it.

[22] I do not accept those submissions. Not only did Rizzo not provide any evidence of a “business arrangement” with Daniel, but his own evidence contradicts that assertion. For example, in his supporting affidavit, Rizzo stated that the cottage was to be a family cottage for use by him and Daniel and her children (Rizzo transcript, CC, page M-A796).

[23] As to the latter assertion, while, on this application, Daniel does not seek to share in the net sale proceeds of Trent Lakes, she has not waived or disclaimed her 50% ownership interest in it.

[24] In his factum, Rizzo submitted that the pending title insurance claim relating to Trent Lakes would create uncertainty for any purchaser, who would not know what they were purchasing while the claim was outstanding. That assertion appears to be misleading: at the hearing, the court was advised that the insurance claim was denied in July 2024.

[25] Rizzo made a similar argument concerning the uncertainty created by the Toronto Action. Specifically, Rizzo submitted that until the Toronto Action is resolved, prospective purchasers will not know precisely what they are purchasing.

[26] That argument is undermined by the very fact that Daniel and Rizzo chose to buy Trent Lakes and to sign Schedule “C” in the face of the same alleged “uncertainty”.

[27] In oral argument, Rizzo submitted including para. 1.e. in the sale order would negatively affect the purchase price.

[28] In response to that argument, Daniel submitted, persuasively, that Rizzo provided no evidence – expert or otherwise – to establish that including para 1.e., which, for all intents and purposes, reflects the provisions of Schedule “C”, would reduce the sale price achievable for Trent Lakes.

[29] A further example of an argument raised by Rizzo, which was unsupported by the factual record, was his assertion that this application could not proceed on a paper record in that there were numerous material facts in dispute.

[30] In his factum at para. 42, Rizzo lists the alleged material facts in dispute that include:

i. Whether Daniel has any interest in the equity of the Properties.

As noted, Daniel is not seeking to receive any part of the net sale proceeds of the Properties and, for that reason alone, whether she has an equitable interest appears to be of no moment. In addition, on his cross-examination, Rizzo acknowledged that he agreed that Daniel would be a 50/50 owner of Trent Lakes. In view of that admission, Daniel’s ownership interest in that property is undisputed.

ii. Whether Rizzo’s medical conditions are sufficient to justify refusing to order the sale of the Niagara Falls Property.

I note that Rizzo’s alleged medical condition related only to the Niagara Falls Property, the sale of which was resolved prior to this hearing. However, that Rizzo put forth no medical evidence to support that allegation supports Daniel’s submission that Rizzo’s arguments were advanced simply with the goal of delaying the sale of the Properties.

iii. Whether there was a verbal business arrangement between these parties concerning Trent Lakes.

As noted above, Rizzo put forth no evidence to support the existence of a “business arrangement” with Daniel and his own evidence shows that Trent Lakes was intended as a family recreational property, not a business endeavour.

iv. Whether Daniel and Rizzo had established a “bare trust” with respect to the Properties.

This assertion was raised for the first time in Rizzo’s factum. There was no factual basis for that legal assertion.

[31] Daniel submitted, persuasively, that not one of the listed “material facts” in dispute were, in fact, disputed.

[32] Daniel submitted, persuasively, that one of Rizzo’s main objectives in opposing this application was to delay the sale of the Properties, which he, alone, uses and enjoys.

[33] As Rizzo has conceded that Trent Lakes can and should now be sold, it is no longer open to him to argue that its sale should be deferred until the Toronto Action has been resolved. While I have not made extensive reference to the evidence supporting the existence of the ROW, there is, in fact, a significant record before this court that would support the position taken by the Neighbours that the ROW has been in place for decades.

[34] Included in that evidence is Schedule “C” which, in itself, is strong evidence of the existence of the ROW. It is fair to assume, which I do, that if there were any diminution in the market value of Trent Lakes by reason of the potential registration of the ROW, that had already been reflected in the price paid by Daniel and Rizzo when they bought.

[35] Para. 1.e. is intended to reflect the terms that Daniel and Rizzo accepted when they bought Trent Lakes. Accordingly, I do not accept Rizzo’s submissions that to impose similar terms on a new buyer will be prejudicial to him or cause an unfair reduction in its market value.

[36] Indeed, I come to an opposite conclusion. Omitting para. 1.e. from the sale order could, and very likely would, create unresolved uncertainty and, possibly, give rise to the registration against the title of Trent Lakes, such as of a Certificate of Pending Litigation, putting potential buyers on notice of the Neighbours' claims to the ROW, which would interfere with or even prevent its sale and/or reduce the sale price achievable.

[37] Rizzo has also submitted that to grant the relief sought by Daniel would, in effect, be to grant judgment to the Neighbours on the claims raised in the Toronto Action.

[38] I do not accept those submissions. The claims made in the Toronto Action against Rizzo include declaratory relief and damages, neither of which is requested on this application.

[39] The Neighbours submit that Rizzo’s own planning expert has provided an opinion that the ROW lands meet the definition of an “access road” under the Ontario Road Access Act, and as such, any subsequent purchaser would already be subject to restrictions concerning the use of the lands that the Neighbours assert are subject to the ROW: Neighbours' Factum, at para. 50.

[40] Rizzo has put forth no evidence to support his assertion that the inclusion of para. 1.e. in the Sale Order would negatively affect the ability to sell Trent Lakes or the potential sale price achievable. By contrast, based on the record before me, there is evidence on which to conclude that not including para. 1.e. in the sale order could negatively affect the ability to sell and/or the sale price achieved.

[41] In my view, including para. 1.e. in the Sale Order will achieve a proper and fair outcome to Daniel and Rizzo: 1) it will alleviate any uncertainty to any potential purchaser(s) that might interfere with the sale of Trent Lakes and/or with achieving the highest possible sale price; 2) it recognizes Daniel’s inherent right to seek the sale on terms that are fair to her, as a 50% owner; and, 3) it will not prejudice Rizzo’s future use or enjoyment of Trent Lakes, which he has agreed will be sold.

Disposition

[42] For the reasons set out, I grant an order for the sale of Trent Lakes in the form attached as Schedule “C” to Daniel’s Factum dated September 30, 2024 (Case Center pages M-A409 - A420), subject to the following amendments:

a. On consent, para. 1.a. shall define the Parties as “Daniel and Rizzo”; and
b. Para 1.e. after the words: Schedule “A”, the following words shall be inserted: “as amended from time to time”.

Costs

[43] Daniel and Rizzo are encouraged to reach an agreement on the costs of this application.

[44] If the Neighbours are seeking their costs, they, too, are encouraged to reach an agreement.

[45] Should Daniel, Rizzo and/or the Neighbours be unable to agree on costs, they are to make written costs submissions as follows:

1. The parties’ written costs submissions are not to exceed three pages, double-spaced, together with draft bills of costs, evidence of docketed time, and copies of any relevant offers to settle.
2. Within 21 days of the date of the release of this decision, Daniel, and the Neighbours (if they seek their costs) shall deliver their written costs submissions.
3. Within 14 days of service of these costs submissions, Rizzo is to deliver his responding submissions,
4. Within 7 days of service of Rizzo’s responding submissions, Daniel and, if applicable, the Neighbours, may deliver their reply submissions, if any, not exceeding one page in length.
5. If no submissions are received within 35 days of the date of the release of these reasons, the parties shall be deemed to have resolved the issue of the costs and no decision shall be made by this court.

Justice L. Sheard
Date: February 19, 2025

Corrigendum

1. The Hearing Date was added to the first page.
2. Paragraph 45 4. was deleted and replaced with the following:

   Within 7 days of service of Rizzo’s responding submissions, Daniel and, if applicable, the Neighbours, may deliver their reply submissions, if any, not exceeding one page in length.

3. Page numbering added.

COURT FILE NO.: CV-23-82314
DATE: 2025-02-19
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: TARA-LEE DANIEL Applicant - and – MICHAEL ANGELO RIZZO, STEVE DUMANSKI, MICHAEL DIBDEN, KAREN SMITH, EDWARD HOOD, AND CAROL HOOD Respondents
JUDGMENT ON application
Justice L. Sheard
Released: February 19, 2025

[^1]: The Ontario Ministry of Land Services was also named.
[^2]: Ontario Superior Court of Justice, CV-23-95818, commenced at Toronto.
[^3]: Daniel Defence, at para 9.
[^4]: At para. 6(a), the claim in the Toronto Action asserts that Schedule “C” entitles them to a right-of-way or easement.