



COURT OF APPEAL FOR ONTARIO

CITATION: Scaduto v. Cucu, 2017 ONCA 224

DATE: 20170320

DOCKET: C62069

Epstein, Benotto and Trotter JJ.A.

BETWEEN

Maria Scaduto and Giuliano Scaduto

Applicants

(Appellants on Appeal)

and

Liviu Cucu

Respondent

(Respondent on Appeal)

Giuliano Scaduto, acting in person

Liviu Cucu, acting in person

Heard and released orally: March 15, 2017

On appeal from the order of Justice Thomas R. Lederer of
    the Superior Court of Justice dated April 15, 2016.

ENDORSEMENT

[1]

The appellants, Maria Scaduto and
    her son, Guiliano Scaduto, object to the operation of a restaurant at a
    property neighbouring theirs. This property was originally a garage with the
    legal address of 2 Romar Crescent. The garage was converted into a restaurant,
    with a "convenience address" of 349 Marlee. The respondent, Liviu
    Cucu, owns the neighbouring property and formerly operated the restaurant.

[2]

The Scadutos took the position
    that the property was not zoned for commercial use and that Toronto had acted
    improperly in allowing a building permit for the conversion of the property. In
    2013, Ms. Scaduto sued Mr. Cucu and Toronto in Small Claims Court seeking
    damages. Her claim was dismissed as being statute-barred. Ms. Scaduto's appeal
    to the Divisional Court was dismissed. Ms. Scaduto attempted to appeal to this
    court but filed out of time, and was unsuccessful in her attempt to obtain an
    extension of time. In 2015, Ms. Scaduto and her son again sued in Small Claims
    Court, this time only against Toronto. Their claim was dismissed. There was no
    appeal.

[3]

In this proceeding, the appellants
    seek an injunction against Mr. Cucu. Toronto is not a party.

[4]

Counsel for Toronto was present on
    the return of the application with a factum and sought to make submissions. Counsel
    for Toronto explained his presence by the fact that he has been advised that
    there would be a motion to add his client as a party. The Scadutos then changed
    their mind and determined not to add Toronto.

[5]

Guiliano Scaduto objected to
    counsel for Toronto being allowed to speak. The application judge appointed
    counsel for Toronto as
amicus curiae

for the purpose of helping the
    court with the history and with the materials.

[6]

The application judge found that
    Guiliano Scaduto's view that the use of the property as a restaurant was
    illegal, was incorrect. His error arose from confusion as to the property's
    proper municipal address. The legal address was 2 Romar, an address zoned to
    permit restaurants.

[7]

The Scadutos base their appeal on
    their argument that the application judge erred in relying on
Joseph

Groia v. Law Society of Upper Canada
, 2014 ONSC 6026 (Div. CT.) in granting Toronto
amicus
    curiae
status. They submit that in
Groia
, the party that was allowed to be
amicus
    curiae
was neutral. Here, Toronto had been
    an adverse party in the two previous proceedings in Small Claims Court, and at
    the appeal in Divisional Court.

[8]

The appellants request that the
    matter be remitted to the Superior Court to be reconsidered by a different
    judge, without Toronto as
amicus
.

[9]

We would not give effect to this
    request.

[10]

Pursuant to r. 13.02:

Any person, may with leave of a judge or at the invitation of
    the presiding judge or master, and without becoming a party to the proceeding,
    intervene as a friend of the court for the purpose of rendering assistance to
    the court by way of argument.

[11]

In
Oakwell Engineering Ltd. v. EnerNorth Industries Inc.
, 2006
    CarswellOnt 9793 (C.A.), at para. 9, McMurtry C.J.O. noted that an
amicus
need not be "impartial", "objective" or
    "disinterested" in the outcome of a case. The fact that the position
    of a proposed intervener is generally aligned with the position of one of the
    parties is not a bar to intervention if the intervener can make a useful
    contribution to the analysis of the issues before the court.

[12]

In our view, it was proper for the application judge to allow Toronto to
    make submissions. Toronto was able to make a useful contribution to the
    resolution of the case, without causing injustice to the Scadutos.
    Additionally, we note that Toronto's ability to assist the court was the result
    of the Scadutos' having informed the City that it was to be added as a party.

[13]

Moreover, it is abundantly clear that there is no merit to the
    underlying zoning issue in this appeal. Thus, even if the application judge
    erred in allowing Toronto to make submissions as
amicus
, this error
    could not have had any effect on the ultimate outcome.

[14]

With respect to costs, the application judge ordered costs in favour of
    the successful party, Mr. Cucu. We see no reason to interfere.

[15]

The appeal is therefore dismissed.

"Gloria Epstein
    J.A."

"M.L. Benotto J.A."

"G.T. Trotter
    J.A."


