



COURT OF APPEAL FOR ONTARIO

CITATION: Aloe v. Aloe Estate, 2019 ONCA 613

DATE: 20190719

DOCKET: C64914

Hoy A.C.J.O., Trotter and Jamal JJ.A.

BETWEEN

Tiiu Mari-Ann Aloe
and
Valve Elisabeth
    Aloe-Gunnell

Plaintiffs (Appellants)

and

Estate of Valdeko Aloe
,
Lembit Peter Aloe,
Toomis Erki Aloe,
Alo Lumber and Building
    Supplies
,
John
    Alo Developments Limited
and
Alo Construction Co.

Defendants (Respondents)

Howard L. Shankman, for the appellant, Valve
    Aloe-Gunnell

William R. Scott, for the respondents

Heard: July 15, 2019

On appeal from the order of Justice Michael N. Varpio of
    the Superior Court of Justice, dated November 6, 2017, with reasons reported at
    2018 ONSC 31.

REASONS FOR DECISION


[1]

The appellant appeals the order of the motion judge, dated November 6,
    2017, dismissing her motion to set aside the implementation of Minutes of Settlement
    regarding a property in Highland Falls, New York that were reduced to a final
    order, dated March 11, 2011 (the Final Order), and for an order finding the
    respondents in contempt; and granting the respondents cross-motion for relief
    permitting implementation of the terms of the settlement.

[2]

The Final Order provides, in relevant part, that the appellant is to
    acquire the western portion of the property (approximately 3.43 acres), subject
    to a conservation easement in favour of the purchaser of the eastern portion of
    the property.

[3]

The appellant argues that the motion judge made four main errors.

[4]

First, she argues that the motion judge erred by dismissing her motion
    on the basis that leave was required for her to bring the motion and, in the
    circumstances, he would not grant leave. The appellant has been found in
    contempt of the Final Order on two occasions and she acknowledges that one term
    of her contempt sentence required her to seek leave prior to bringing any
    motion before the court. However, she argues that, in his earlier hand-written
    endorsement of March 10, 2017, the motion judge had granted her leave. In that
    endorsement, the motion judge wrote that the appellants consent to relieving
    counsel for the respondents of his undertaking to re-zone the property was
    without prejudice to [her] ability to bring a motion arguing that the
    settlement ought to be varied or set aside on other grounds (leave granted).

[5]

This is not a basis for interfering with the motion judges order. To
    the extent that he had previously granted leave, he did not do so with respect
    to the appellants motion seeking an order finding the respondents in contempt.
    But more importantly, the several reasons why the motion judge denied leave
    were also sound reasons for dismissing the motion.

[6]

Second, the appellant argues that the motion judge erred in rejecting
    her argument that the Final Order should be set aside because the portion of
    the property that she is to acquire suffers from environmental clean-up issues.
    The motion judge did so on the basis that the appellant was aware of the
    dumping at the relevant times and, in any event, the dumping issue would have
    been discoverable with due diligence. The appellant argues that there was no
    evidence before the motion judge from which he could conclude that she knew
    about the dumping and that it was inappropriate to require her to exercise
    diligence.

[7]

The motion judges conclusion was based, in part, on the appellants
    concession that dumping was taking place on the land for years. The appellant
    has not satisfied us that she did not make that concession. Moreover, the
    record indicates that the appellant has in fact exercised considerable
    diligence in relation to all matters affecting the property. There is no basis
    to interfere with the motion judges rejection of her argument that the Final Order
    should be set aside because of dumping on the property.

[8]

Third, the appellant argues that the motion judge erred in granting the
    respondents cross-motion for approval of the Deed Transfer whereby the western
    portion of the property will be transferred to her. In particular, she says
    that the Deed Transfer incorrectly creates an easement on the south boundary
    line of the property that was not contemplated by the Final Order.

[9]

More than a year before the motion judge heard the motion, he determined
    that the easement on the south boundary line of the property was contemplated
    by the Final Order:
Aloe-Gunnell v. Aloe et al.
,
2016 ONSC 2576. As the motion judge
    concluded, it was not open to the appellant to re-argue this issue.

[10]

Finally,
    the appellant argues that the motion judge erred in granting the respondents
    cross-motion for approval of the Conservation Easement. She argues that it is
    substantially more restrictive than the terms of the conservation easement that
    she had agreed to at the time of the settlement and does not comply with the Final
    Order. While she concedes that she had a copy of a map describing the
    conservation easement restrictions and depicting an area of the property she
    will acquire as a No Cut/No Development Zone (.75 acres) at the time of the settlement,
    she argues that she did not appreciate that the Conservation Easement would
    restrict her from developing the .75 acre no cut area of the property she
    will acquire.

[11]

The
    motion judge found that when the parties negotiated the settlement, they had
    before them Mr. Toomis Aloes affidavit of March 5, 2011, which described the
    conservation easement with which a portion of the property to be acquired by
    the appellant would be burdened, and the Conservation Easement was consistent
    with the conservation easement described in that affidavit. There is no basis
    to interfere with the motion judges finding.

[12]

Accordingly,
    the appeal is dismissed. The respondents are entitled to their costs of the
    appeal, fixed in the amount of $15,000, inclusive of HST and disbursements.

Alexandra
    Hoy A.C.J.O.

Gary T. Trotter J.A.

M. Jamal J.A.


