



COURT OF APPEAL FOR ONTARIO

CITATION: Dunford v. Otonabee-South Monaghan
    (Township), 2022 ONCA 230

DATE: 20220321

DOCKET: C68623

Feldman, Roberts and Favreau JJ.A.

BETWEEN

Allen Dunford

Plaintiff
(Appellant)

and

The Corporation of the

Township of Otonabee-South Monaghan

Defendant
(Respondent)

Allen Dunford, acting in person

Michael F. Sirdevan, for the respondent

Heard: March 15, 2022 by video
    conference

On appeal from the order of Justice Myrna L. Lack of the Ontario
    Superior Court of Justice, dated June 29, 2020, with reasons reported at 2020
    ONSC 1750.

REASONS FOR DECISION

[1]

Mr. Dunford appeals from the
    dismissal of his action on the respondent Townships motion for summary
    judgment.

[2]

Mr. Dunfords claims against
    the Township are founded on the tort of misfeasance in public office. He
    alleges that from 2005 onwards, the Township abused its public office by deliberately
    and maliciously engaging in a pattern of bad faith dealings with him that were
    intended to and did harm him and his construction business. He based his claims
    on particulars of several interactions with the Township.

[3]

The motion judge found that
    Mr. Dunford had no cause of action against the Township arising from any of the
    circumstances outlined in his amended, amended statement of claim, including
    any cause of action for misfeasance in public office.

[4]

The focus of Mr. Dunfords
    oral argument was that the motion judge misunderstood the cause of action
    pleaded. In essence, he submits that the motion judge erred by failing to look
    at the overall pattern of the alleged instances of the Townships misconduct as
    a continuing cause of action. Had she done so, Mr. Dunford argues, she
    would not have dismissed his claim.

[5]

We are not persuaded that
    the motion judge made any reversible error.

[6]

The motion judges reasons
    demonstrate that she did not misapprehend the cause of action pleaded. She
    reviewed the constituent elements of the tort of misfeasance in public office and
    Mr. Dunfords claims in detail. Importantly, as she indicated in para. 11 of
    her reasons, she was alert to Mr. Dunfords allegation that from 2005,
    officials of the defendant Township working in that capacity pursued a
pattern
    of conduct
in which they exercised bad faith toward him or from which it
    can be inferred that they did so (emphasis added).

[7]

Mr. Dunford structured his
    claims around six separate instances of alleged misconduct by the Township that
    he argued amounted to misfeasance in public office. As a result, the motion
    judge was required to review the particulars and evidence concerning each
    instance to determine if there was a genuine issue requiring a trial or if
    summary judgment should be granted. However, the motion judge did not lose
    sight of the big picture. Mr. Dunfords suggestion that the motion judge took a
    piecemeal approach is belied by her conclusion that no cause of action against
    the Township for misfeasance in public office (bad faith) arises from
any or
    all the circumstances
outlined in the amended, amended statement of claim
    (emphasis added).

[8]

As held by the motion judge,
    the standard to be met in establishing bad faith is high and necessitates
    evidence to demonstrate a municipality has acted in other than the public
    interest. The fact that the Township has made several decisions unfavourable to
    Mr. Dunford does not amount to bad faith.

[9]

Mr. Dunford also raised two
    further issues: i) the motion judge erred in granting summary judgment when
    there were genuine issues requiring a trial; and ii) the motion judge erred in
    failing to give any weight to his affidavit evidence of new particulars of the
    Townships alleged misconduct. These can be dealt with summarily.

[10]

First, this was an entirely
    appropriate case for summary judgment. It is well established that the parties
    were required to put their best evidentiary foot forward and that the motion
    judge was entitled to assume that they had placed all relevant evidence in the
    record. Having reviewed the pleadings and the evidence before her, the motion judge
    concluded that there was no basis for any claim against the Township. We see no
    basis on which to disturb the motion judges findings which were open to her on
    the record. Effectively, Mr. Dunfords submissions amount to a request for this
    court to undertake the analysis afresh and come to a different conclusion in
    his favour. Absent error, which is not present here, that is not our task.

[11]

Finally, we see no error in
    the motion judges decision not to consider the further particulars contained
    in Mr. Dunfords responding materials. This was an exercise of her discretion
    that she was entitled to make in managing the proceedings before her. The new
    particulars related to events that purportedly occurred after the six instances
    of alleged misconduct and the timeframe pleaded in his amended, amended
    statement of claim. The motion judge was required to determine the motion based
    on the claims as framed in the pleadings before her.

[12]

For these reasons, the
    appeal is dismissed.

[13]

Mr. Dunford shall pay to the
    Township its costs of the appeal in the amount of $4,700, inclusive of
    disbursements and applicable taxes.

K.
    Feldman J.A.

L.B.
    Roberts J.A.

L. Favreau
    J.A.


