Plaintiff’s reasonable expectation of finality was dependent entirely on correctness of its interpretation of agreement

Plaintiff obtained approval from regional conservation authority to develop land, and defendants and association applied for judicial review of decision to approve project. Parties entered into settlement in which defendants, including association and members of association’s executive committee, promised that in any subsequent proceedings, they would not advance position that regional conservation authority resolutions were invalid or contrary to relevant environmental legislation. Plaintiff’s application to city for official plan amendment was defeated, plaintiff appealed, association was granted party status and defendant’s president of association gave evidence that development would result in significant environmental damage. Plaintiff’s application for development approval was dismissed and subsequently plaintiff brought action seeking damages, because it alleged that defendants breached minutes of settlement, as president of association gave evidence at hearing. Defendants brought unsuccessful motion for order dismissing action pursuant to s. 137.1 of Courts of Justice Act and motions judge found that statements made by president in his testimony before city board were clearly expression as defined in s. 137.1(2) of Act, because expression was about environmental issue in public forum before public body, and matter was of public interest to community. Defendants satisfied onus set out in s. 137.1(3) of Act and onus shifted to plaintiff to satisfy s. 137.1(4) of Act and it was found that plaintiff’s claim had substantial merit and was claim that should be considered by court. Defendants appealed. Appeal allowed. In weighing harm that plaintiff suffered as result of defendant’s expression against public interest, motion judge relied almost exclusively on harm caused to plaintiff by loss of its reasonable expectation, that its litigation with defendants over proposed development, was finished. However, it was determined that plaintiff’s reasonable expectation of finality was dependent entirely on correctness of its interpretation of agreement, and it was found that agreement could not reasonably be read as foreclosing president of association’s evidence. Even if it was accepted that there was interference with plaintiff’s reasonable expectation of finality in litigation, and harm arose as consequence, there was no evidence of any other harm, and in particular, there was no evidence of any damages suffered or likely to be suffered as result of alleged breach of agreement.

1704604 Ontario Ltd. v. Pointes Protection Association (2018), 2018 CarswellOnt 14179, 2018 ONCA 685, Doherty J.A., D.M. Brown J.A., and Grant Huscroft J.A. (Ont. C.A.); reversed (2016), 2016 CarswellOnt 7322, 2016 ONSC 2884, E. Gareau J. (Ont. S.C.J.).