



COURT OF APPEAL FOR ONTARIO

CITATION:
Miragliotta
    v. Zanette, 2021 ONCA 764

DATE: 20211028

DOCKET: C67414

Strathy C.J.O., Zarnett J.A. and Wilton-Siegel J.
    (
ad hoc
)

BETWEEN

Amelia Miragliotta and Francesco Di Nardo

Plaintiffs (Appellants)

and

Mark Zanette, Stephen Zanette, and Randy Zanette

Defendants (Respondents)

Patrick Di Monte, for the appellants

Brett D. Moldaver, for the respondents

Heard:
October 18, 2021 by video conference

On appeal from the order of Justice Chris de Sa of the
Superior Court of Justice
, dated
August 9,
    2019, with reasons reported at 2019 ONSC 4599
.

REASONS FOR DECISION

INTRODUCTION

[1]

The appellants
[1]
appeal from a decision that addressed two matters: (i) the amount the
    appellants should pay as a result of their having undertaken to be responsible
    for damages caused by an interim injunction they obtained against the
    respondents; and (ii) the amount that should be awarded to the appellants for
    expenditures to perform work that the respondents were obliged to complete
    under a 2010 court order. The appellants contend that the trial judge erred in
    his assessment of both amounts.
[2]

[2]

For the reasons that follow, we dismiss the
    appeal.

BACKGROUND

[3]

The appellants and the respondents own
    neighbouring development lands in the City of Vaughan. They have been involved
    in litigation concerning the lands for more than 10 years.

[4]

The 2010 court order provided that the parties would
    enter into an Agreement of Purchase and Sale under which the respondents would
    sell a small piece of land known as Block 7 to the appellants. It also provided
    that the respondents would be responsible for, among other things, completing
    the final coat of asphalt on a roadway known as the Appian Way by August 31,
    2013, and for completing the final curbs for Block 7.

[5]

The respondents did not comply with the deadline
    in the 2010 order. After giving notice to the respondents of their intention to
    hold them responsible for the cost of doing so, the appellants did the work to
    complete the curbs and added the final coat of asphalt to the Appian Way in May
    2014.

[6]

In August 2014, the respondents proposed a plan
    for their lands that involved creating, by severance, five building lots, two
    of which would have 50-foot frontages, rather than the 60 feet required under a
    city by-law. The respondents objected, and in October 2014, moved for an
    injunction, undertaking to be responsible for any damages flowing from the
    injunction. In January 2015, an injunction was granted restraining the
    respondents from proceeding with the development of the two building lots of 50
    feet. The injunction was set aside by a further order made on June 2, 2015,
    which the appellants appealed unsuccessfully.
[3]
When the injunction was set aside, a reference was directed to determine the
    damages for which the appellants were responsible as a result of their
    undertaking.

The Trial Judges Decision

[7]

The trial judge heard the reference on damages
    caused by the injunction, and a motion for summary judgment brought by the
    appellants to recover their expenditures for work relating to the respondents
    failure to comply with the 2010 order.

[8]

With respect to the damages caused by the
    injunction, the trial judge accepted the evidence of the respondents that they had
    obtained a commitment for new financing in September 2014, based on a five-lot
    development (with 50-foot lots). The refinancing would have allowed them to pay
    out their existing mortgages of $1,650,000, which were accruing interest at 9%
    and 13.7% in October 2014, with a new rate of 6.85% for an 18-month term. The
    motion for the injunction and the injunction itself prevented the refinancing
    from being finalized until May 2015; when it was finalized, it was based on four
    lots only and at a higher interest rate.

[9]

The trial judge awarded the respondents
    $30,289.58, representing the interest rate differentials as a result of their
    inability to refinance the property between October 2014 and May 2015; a
    further $22,252.50, representing higher interest on the eventual refinancing
    between May 2015 and November 2016; and a further $10,000 for [l]enders
    amendment fees. He described these as amounts the appellants did not
    seriously contest.

[10]

The trial judge denied the respondents claim
    for a further amount of about $121,000 of [i]nterest for carrying costs on the
    project due to  delays, as he found the delays complained of to support this
    aspect of the claim were not clearly associated with the injunction. Instead, the
    trial judge found that these costs were incurred as a result of the
    respondents development choices and natural delays caused by the circumstances
    surrounding the development.

[11]

The appellants claim relating to the final coat
    of asphalt and the curbs was allowed by the trial judge in the amount of
    $28,172.61, less $25,000 already paid. The trial judge also made an award of
    interest. He disallowed the higher amounts claimed by the appellants because
    they included interest calculated at 10%, rather than the
Courts of Justice
    Act
, R.S.O. 1990, c. C.43 rate, and because they included amounts not
    attributable to the final coat of asphalt or the curbs as contemplated by the
    2010 order.

ANALYSIS

(i)

Damages Flowing from the Injunction

[12]

Before this court, the appellants argue that the
    trial judge ought not to have awarded the interest differential amounts or the
    lenders amendment fees. They essentially argue that the respondents did not
    have any municipal or planning approvals for five lots or four lots at the time
    of their planned or actual refinancing, and therefore ought not to have been approved
    for refinancing based on creating either number of lots. Therefore, they say
    the trial judge erred in finding the interest rate differentials, if there were
    any, and the lender amendment fees were caused by the injunction. They also
    argue that the respondents should have gone back to the lender and requested
    different terms once the injunction was dissolved in June 2015, in essence
    suggesting that there was a failure to mitigate.

[13]

We reject this ground of appeal.

[14]

The trial judge made findings of fact that the
    appellants had a lending commitment at a lower interest rate, that the
    injunction delayed its finalization, and that the respondents were only able to
    finalize it at a higher rate while the injunction was in effect. In other
    words, the respondents were deprived of the benefit of the September 2014
    lending commitment by reason of the injunction. The appellants do not argue
    that the trial judge made a palpable and overriding error in these findings, which
    are entitled to deference on appeal. These findings support the award of
    damages he made. It is immaterial whether the respondents,
vis-à-vis
their own lender, should have been approved for refinancing based
    on a particular number of lots before planning approvals were obtained. The
    damages flowing from the injunction were based on what the trial judge found had
    actually occurred, not what the respondents lender should have committed to in
    the circumstances.

[15]

Assuming that it is open to a party obligated to
    pay damages for obtaining an injunction to argue a failure to mitigate, the
    appellants would bear the onus of proof on that issue. The appellants pointed
    us to no evidence to support the argument that if the respondents had tried to
    renegotiate the refinancing after the injunction was dissolved, they would have
    succeeded.

(ii)

Compensation
    for Expenditures Under the 2010 Court Order

[16]

With respect to the award of compensation in
    their favour, the appellants argue that the trial judge gave them an inappropriately
    low sum. They say that the Appian Way road deteriorated due to the failure of
    the respondents to apply the final coat of asphalt by the deadline for doing
    so, and therefore they had to do additional work before they could apply the final
    coat. They say the trial judge took an unduly narrow view of what the 2010 order
    required.

[17]

We reject this ground of appeal as well. The
    trial judges interpretation of the terms of the 2010 order (which the
    appellants themselves stress was given on consent and was akin to a contract)
    is entitled to deference in this court. So is his comparison of what the
    appellants spent relative to what was required of the respondents under the
    2010 court order, as that is a matter with a heavily factual component. We see
    no error in the trial judges conclusions that would entitle this court to
    interfere.

CONCLUSION

[18]

The appeal is dismissed. The respondents are
    entitled to their costs of the appeal, fixed in the agreed amount of $12,500,
    inclusive of disbursements and applicable taxes.

G.R. Strathy C.J.O.

B. Zarnett J.A.

Wilton-Siegel J.





[1]

The appellant, Francesco Di Nardo, died while this appeal was
    pending. An order to continue the appeal under r. 10.02 of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194 was sought by his wife, Amelia Miragliotta, in the appellants
    factum.



[2]

The matter proceeded below both as a trial of issues on the
    damages flowing from the injunction and a motion for summary judgment for
    recovery of the appellants expenditures. For ease of reference, all references
    to the judge below describe him as the trial judge.



[3]

Pirpamer v. Zanette
,

2015 ONCA 723.


