



COURT OF APPEAL FOR ONTARIO

CITATION: Sutherland v. Toronto (City), 2020 ONCA 122

DATE: 20200213

DOCKET: C65218

Feldman, Brown and Zarnett JJ.A.

BETWEEN

Ineke Sutherland

Plaintiff/Responding Party (Appellant)

and

City of Toronto, Mark Siboni
and Geoffrey
    R. Newbury

Defendants/Moving Parties (
Respondents
)

Ineke Sutherland, acting in person

Christopher J. Henderson, for the respondents

Heard: January 24, 2020

On appeal from the judgment of Justice Thomas R. Lederer
    of the Superior Court of Justice, dated February 27, 2018, with reasons
    reported at 2018 ONSC 1311, 72 M.P.L.R. (5th) 311.

REASONS FOR DECISION

OVERVIEW

[1]

The appellant, Ineke Sutherland, has engaged in
    a dispute with the respondent, the City of Toronto, over the payment of
    property taxes since she first fell into arrears in 1998. As disclosed in her
    materials, she takes the position that until the City agrees that she does not
    have to pay interest or penalties on her substantial property tax arrears, she
    does not have to pay any tax.

[2]

In 2006, the appellant commenced a Small Claims
    Court action in which she sought an order that her tax account for 2003 had
    been paid in full. The respondent, Mark Siboni, acted for the City in that
    action. The City and Siboni will be referred to as the City Respondents. The
    respondent, Geoffrey Newbury, was the appellants solicitor of record during
    parts of the Small Claims Court proceeding.

[3]

After the commencement of that action, the
    appellant continued to let her property taxes fall further into arrears.

[4]

In 2009, the Small Claims Court action was
    struck from the trial list. In 2016, the action was dismissed for delay. In
    2017, the appellant abandoned her appeal to the Divisional Court.

[5]

About five weeks after abandoning her appeal,
    the appellant started this action (the SCJ Action). In it, she pleads that:
    (i) the Citys tax account for her property has been incorrect since 1998; (ii)
    in 2006, the City, through Siboni, had undertaken not to take any collection
    efforts until the Small Claims Court action had been settled; (iii) Newbury
    negligently handled her Small Claims Court action; and (iv) the Citys efforts
    to collect property tax arrears had caused her damage. In her statement of
    claim, the appellant acknowledged that as of October 2017, the Citys records
    showed her property tax arrears as $102,563.16.

[6]

The City Respondents moved for summary judgment
    dismissing the SCJ Action. Although in July 2016, the City had initiated the
    process to sell the appellants property for arrears of taxes, the process was
    put in abeyance pending the determination of the City Respondents summary
    judgment motion.

[7]

The motion judge granted summary judgment and dismissed
    the SCJ Action against the City Respondents.

[8]

Newbury did not join the City Respondents in
    seeking summary judgment.

[9]

In his reasons, the motion judge: provided a
    meticulous review of the history of the appellants tax arrears dating back to
    1998; closely examined the elements of her claim for damages; and considered
    all of the arguments advanced by the appellant. The motion judge concluded that
    the appellant had no viable cause of action against the City Respondents and
    there was no genuine issue requiring a trial.

[10]

He reached that conclusion for several reasons:

(i)

The root of all of the claims dated back to the 2003, 2004, and 2005
    tax bills, with the result that the issues which are the provenance of this
    dispute happened well outside the two years that preceded the issuance of the
    Statement of Claim: at para. 29. As well, it cannot be said that the
    reasonable person in the position of the Plaintiff would not have discovered
    that, as she continued in her failure to pay any property tax over all the
    years involved, her potential liability was continuing to grow: at para. 32.
    The issues that formed the claim for damages were known to the appellant at
    least by the time she commenced her Small Claims Court action in 2006: at para.
    36. Her SCJ Action therefore was statute-barred;

(ii)

In any event, statute provided a complete code by which the
    appellant could question the amount levied as property tax and the steps taken
    by the City to collect the debt: at para. 37;

(iii)

Notwithstanding that at one point the City had stated that it would
    put its collection efforts on hold until the resolution of the Small Claims
    Court action, in 2012 the City put the appellant on notice that it would resume
    collection efforts. In any event, the dismissal of the Small Claims Court
    action meant that the City was free to collect the very significant arrears
    that the appellant had allowed to build up: at paras. 41-42; and

(iv)The
    issuance of the tax arrears certificate was not capable of amounting to a
    defamatory statement of the appellant: at paras. 45-47.

ANALYSIS

[11]

On appeal, the appellant advances three main
    submissions.

[12]

First, she submits that the motion judge erred
    in reaching his conclusions. The appellant repeats many of the fact-based
    submissions she made before the motion judge. We see no error in law by the
    motion judge, nor has the appellant persuaded us that he made any palpable and
    overriding error of fact. We see no basis to interfere with the motion judges
    conclusion that there was no genuine issue requiring a trial in respect of the
    appellants claims against the City Respondents.

[13]

Second, the appellant submits that comments made
    by the motion judge during the hearing of the motion amounted to oppressive
    conduct that demonstrated a reasonable apprehension of bias on his part. Having
    reviewed the portions of the transcript of the hearing on which the appellant
    relies and which she included in her Appeal Book and Compendium, we see no
    merit in this ground of appeal. The motion judge provided the appellant with
    the assistance owed to a self-represented party, including explaining what the
    summary judgment process involved and the issues he would have to decide. At
    the same time, he ensured that both parties received a fair hearing by ensuring
    that submissions remained focused on the issues requiring his adjudication.

[14]

A few times during the hearing, the motion judge
    expressed frustration at some of the appellants submissions. He also expressed
    frustration at the Citys delay in dealing with the tax dispute. Towards the
    end of the hearing, the motion judge apologized to the appellant for expressing
    his frustration, an apology which she accepted on the record. The appellant
    received a fair hearing from the motion judge.

[15]

Finally, the appellant contends that the motion
    judge should not have granted summary judgment when her claim against Newbury
    remained outstanding. We disagree. The appellant asserted quite different
    claims against the City Respondents and her former solicitor; there is no risk
    of conflicting judgments.

DISPOSITION

[16]

The appeal is dismissed.

[17]

The appellant shall pay the City Respondents their
    costs of the appeal fixed in the amount of $10,000, inclusive of disbursements
    and applicable taxes.

K. Feldman J.A.

David Brown J.A.

B. Zarnett J.A.


