



COURT OF APPEAL FOR ONTARIO

CITATION: Angus v. Port Hope (Municipality), 2019 ONCA 1015

DATE: 20191224

DOCKET: C66964

Roberts, Zarnett and Jamal JJ.A.

BETWEEN

Ian Angus and Daphne Angus

Plaintiffs

(Appellants)

and

The Corporation of the Municipality of Port Hope

Defendant

(Respondent)

M. John Ewart, for the appellants

Kristin Muszynski and Kevin Cooke, for the respondent

Heard: December 18, 2019

On appeal from the judgment of Justice Susan Woodley of
    the Superior Court of Justice, dated April 25, 2019, with reasons reported at
    2019 ONSC 2596.

REASONS FOR DECISION

[1]

The appellants appeal the summary judgment which dismissed the remaining
    claims in their action. Those claims were for damages alleged to have been
    caused by the respondents enactment of a By-Law and its unsuccessful
    prosecution of the appellants for breach of that By-Law. For the reasons that follow
    we dismiss the appeal.

[2]

The respondent passed By-Law No. 47/2012 on May 29, 2012. It required
    property owners to obtain a permit before placing or dumping fill on their
    property. In order to obtain a permit, various information had to be provided;
    the By-Law also required the payment of a fee.

[3]

The appellants, shortly before the By-Law came into force, had entered
    into an agreement for fill to be placed in an abandoned gravel pit on property
    owned by the appellant Mrs. Angus. When the respondent objected to the
    continuing placing of fill without a permit after the By-Law came into effect,
    the appellants: (a) took the position that the By-Law did not apply to the
    property; (b) filled out an incomplete application for a permit, without submitting
    the required fees or filing the required documents in support of the
    application; and (c) for a time, continued to accept deliveries of fill on the
    property. Although the respondent advised of what was deficient in the
    application for the permit, the appellants took no further steps to fulfill the
    requirements.

[4]

Litigation then ensued. On March 18, 2013, the respondent commenced a
    prosecution for breach of the By-Law. On May 30, 2013, the appellants commenced
    this action challenging the validity and applicability of the By-Law.

[5]

On June 14, 2016, an order was made in this action declaring that the
    By-Law did apply to the appellants property, holding that the fees the By-Law imposed
    were
ultra vires
, and holding that the By-Law was otherwise valid and
    in full force and effect. No appeal was taken from that order.

[6]

The prosecution for breach of the By-Law was stayed for a period of time
    while its validity was challenged in this action. In November 2016, the
    prosecution was continued. On October 16, 2017, the prosecution was permanently
    stayed on the basis that the appellants right to a trial within a reasonable
    period of time had been breached. No appeal was taken from the permanent stay
    order.

[7]

The appellants then amended this action to include claims for malicious
    prosecution and misfeasance and abuse of public office.

[8]

The respondent moved for summary judgment dismissing the claims in the amended
    action. The appellants brought their own motion for summary judgment on their
    claims. Based on the late filing of evidence by the appellants the motions
    judge declined to deal with the appellants motion until after she had disposed
    of the respondents motion, and then only if the result was other than a
    dismissal of the action.

[9]

The motions judge granted summary judgment dismissing those parts of the
    appellants action that had not been dealt with by prior decisions. It is from
    this order that the appellants appeal.

[10]

The appellants do not argue that this was an inappropriate case for
    summary judgment. Rather, they submit that the motions judge made reversible
    errors in dismissing their claims for: (a) malicious prosecution of charges
    against them under the By-Law; (b) misfeasance and abuse of public office; and
    (c) damages resulting from the fee provisions of the By-Law being invalid. The
    appellants also submit that the motions judge erred in not dealing with both summary
    judgment motions together with the additional evidence the appellants delivered
    on their motion. We do not give effect to any of these grounds of appeal.

[11]

The appellants do not dispute that the motions judge correctly
    articulated the four-part test the appellants had to meet to maintain an action
    for malicious prosecution. No party disputes her finding that the first two
    elements of the test were met. We disagree with the appellants contention that
    the motions judge erred in finding that the appellants did not meet the third
    part of the test, that is, that she erred in finding there to be no genuine
    issue requiring a trial about whether the respondent had reasonable and
    probable cause to initiate and continue the proceeding. There was evidence on
    which she could find the respondent had a subjective belief at the relevant
    times that fill had been deposited on the appellants property after the By-Law
    came into force, and that the By-Law had been breached as the appellants had
    not obtained the required permit. And the evidence justified her finding that
    such a view was objectively reasonable at the relevant times. She correctly
    found this to be fatal to the appellants cause of action for malicious
    prosecution. Similarly, her finding that there was no evidence that the
    respondent wilfully perverted or abused the process grounded her finding that
    the appellants action failed the fourth element of the malicious prosecution test.
    Her findings are entitled to deference and are not the product of legal errors.

[12]

The motions judge correctly articulated the test for misfeasance and abuse
    of public office, noting that it requires deliberate unlawful conduct in the
    exercise of public functions and awareness that the conduct is unlawful and
    likely to injure the plaintiff. There was no issue that the respondent had the
    jurisdiction to enact the By-Law and that it was a By-Law of general
    application to all residents of Port Hope. The motions judge noted that the By-Law
    was passed after months of research and consultation with various stakeholders
    and was similar to those in effect in neighbouring municipalities. She found
    that there was no evidence that the By-Law was enacted for other than a proper
    public purpose, let alone in bad faith, and no evidence to support a finding
    that the respondent acted in bad faith by including a fee provision in the By-Law.
    She correctly noted that the fact that the fee provision was later declared
ultra
    vires
could not be equated with a bad faith enactment. We see no error in
    these findings that could justify appellate intervention.

[13]

The motions judges determination that neither of the causes of action
    advanced by the appellants raised a genuine issue requiring a trial was
    sufficient to dispose of the claims for damages that were advancedthey were
    dependant on a valid cause of action. We would add that for the additional
    reason given by the motions judge, we see no merit in the appellants argument
    that there is a claim for damages arising from the fee provisions initially
    made part of the By-Law having been later found to be
ultra vires
.

[14]

The motions judge found that the appellants had not provided a complete
    application for a permit, leaving aside that they did not submit the requested
    fees that were later found to be
ultra vires
. Assuming without
    deciding that the appellants could complain if they were denied a permit
    because they did not pay fees which were later declared invalid, we see no
    error in the motions judges determination that they could not complain when
    their application was deficient for reasons other than the non-payment of fees.

[15]

Finally, the motions judges decision to proceed with the respondents
    motion for summary judgment and not to allow late evidence to be filed on it
    was within her discretion, as was her decision to defer the appellants motion
    and to deal with it only if the respondents motion failed. We are not
    satisfied that she made any reversible error in so exercising her discretion.
    She had a long familiarity with the matter and was well placed to efficiently
    and fairly manage the motions. Nor in argument were we pointed to anything in
    the late evidence of the appellants that, if considered by the motions judge,
    could reasonably have been expected to change the result.

[16]

Accordingly, the appeal is dismissed. The respondent is entitled to its
    costs of the appeal, fixed at $15,000 inclusive of disbursements and applicable
    taxes.

L.B.
    Roberts J.A.

B.
    Zarnett J.A.

M.
    Jamal J.A.


