Decision states that the matter of damages must go to the OMB, and no evidence was presented in support of alleged misconduct by the City.

By Hamutal Dotan

Photo by Daifuku Sensei from the Torontoist Flickr Pool.

In April 2011 the Ontario Superior Court dismissed a class action lawsuit, filed on behalf of local merchants on St. Clair, alleging that they had suffered personal and business damages due to construction of the St. Clair right of way. Unhappy with the decision, the merchants filed an appeal; in a decision released this afternoon, the Ontario Court of Appeal upheld that ruling.

The $100 million lawsuit was filed by Curactive Organic Skin Care, a St. Clair salon, and alleged that the damages were sustained due to the prolonged construction period for the transit line. Today’s decision backed up the previous ruling that the matter of damages fell under the jurisdiction of the Ontario Municipal Board, and further found that there was no evidence of impropriety by the City. From the ruling:

[I]nsofar as the claims against TTC are concerned, we agree with the motion judge’s conclusion…that the various claims advanced by Curactive were being used to disguise what is a claim for compensation that is within the jurisdiction of the Ontario Municipal Board.

As for the more contentious allegation that damages were ultimately due to “an abuse of public authority and/or misfeasance in public office,” the decision states that:

The claims as pled do not identify any individual who engaged in any improper conduct, do not identify with any specificity the alleged improper conduct, and provide no particulars in support of the allegations that the conduct was done with the intention of harming Curactive and others affected by it. We are satisfied that as pleaded, the claim discloses no reasonable cause of action for intentional misconduct on the part of the City… Furthermore, there is nothing in the record before this court to suggest that Curactive is in a position to amend its pleadings in a manner that would give any reasonable substance to its claim of abuse of public authority against the City.

Area councillor Joe Mihevc (Ward 21, St. Paul’s), seemed pleased but unsurprised by the decision. “There was never any impropriety,” he said. “What eventually became a legal issue was really covering for a different approach—some people tried to use a legal means to stop the project. On the street, the St. Clair issue has been won… Ridership is up 25 per cent, people are investing in new stores and new storefronts.”

Curactive owner Annamaria Buttinelli hadn’t heard about the decision until we called to get her reaction to today’s development. “Obviously, I’m very upset,” she told us, but she couldn’t say whether they’d be pursuing damages at the OMB before consulting further with her lawyer.