



COURT OF APPEAL FOR ONTARIO

CITATION: C. Valery Construction Limited v. Battilana, 2018
    ONCA 849

DATE: 20181023

DOCKET: C65022, C65023, C65024 and C65206

Hoy A.C.J.O., Sharpe and Fairburn JJ.A.

BETWEEN

C. Valery Construction
    Limited

Applicant (Appellant)

and

Flavio Battilana, Diana Battilana, Mark Peter
    Fingland, Rebecca Jane Raven and Merike Laigna

Respondents (Respondents)

AND
    BETWEEN

Merike Laigna

Applicant (Respondent)

and

C. Valery Construction
    Limited

Respondent (Appellant)

AND
    BETWEEN

Mark Peter Fingland and
    Rebecca Jane Raven

Applicants (Respondents)

and

C. Valery Construction
    Limited

Respondent (Appellant)

AND BETWEEN

Flavio Battilana and
    Diana Battilana

Applicants (Respondent)

and

C. Valery Construction
    Limited

Respondent (Appellant)

Ronald Allan, for the appellant, C. Valery Construction
    Limited

M. Scott Martin, for the respondents, Mark Peter
    Fingland and Rebecca Jane Raven

Jordan Diacur, for the respondents, Flavio Battilana and
    Diana Battilana,

Alan V. Mills, for the respondent, Merike Laigna

Heard and released orally: October 17, 2018

On appeal from the
    judgment and order of Justice Kim A. Carpenter-Gunn of the Superior Court of
    Justice, dated January 26, 2018.

REASONS FOR DECISION

[1]

The appellants principal submission is that the application judge erred
    by failing to direct the trial of an issue or convert the application into an
    action.

[2]

The appellant chose to proceed with an application. The respondents
    filed cross-applications. There were contested factual issues but those issues
    were obvious from the outset and at no point did the appellant object to the
    matter being determined on an application. In these circumstances, we cannot agree
    with the submission that the application judge erred by failing to direct on
    her on initiative the trial of an issue or convert the application to an action.
    See:
1213763 Ontario Inc. v. Shopsys Hospitality Inc.
, 2008 ONCA 865
    at para. 25.

[3]

The appellant also submits that the application judge erred in finding
    that the respondents Fingland and Raven and the respondent Battilanas made
    lasting improvements sufficient to trigger their claim pursuant to
the
    Conveyancing in Law Property Act
s. 37. The appellant does not take issue
    with the legal test applied by the trial judge but contends that the facts of
    these cases do not bring them within that test. That is an issue of mixed fact
    and law to which a deferential standard of palpable and overriding error
    applies.

[4]

We are not persuaded that the appellant has met that standard. The
    respondents did make significant improvements and it was open to the
    application judge to find that they satisfied the legal test that she correctly
    stated. Applying the appropriate standard of review, we are required to defer
    to that finding.

[5]

The judgment in favour of the respondent Laigna, who succeeded on
    proprietary estoppel, is only appealed on the issue of whether the application
    judge erred by deciding the case by way of application. Accordingly, it is not
    necessary for us to deal with proprietary estoppel.

[6]

The appeals are dismissed.

[7]

Costs are awarded to the respondent or respondents on appeal in each
    proceeding, fixed in the amount of $8,000 inclusive of taxes and disbursements.

Alexandra
    Hoy A.C.J.O.

Robert J. Sharpe
    J.A.

Fairburn J.A.


