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The Court of Appeal held that defendants bear the burden of proving constructive knowledge for a limitations defence on summary judgment.
The appellant, Essex Condominium Corporation No. 125 (ECC 125), appealed a partial summary judgment that dismissed its claim for unpaid common expense fees against the respondents based on a limitations defence.
The Court of Appeal found that the motion judge erred by reversing the burden of proof on the issue of discoverability under the Limitations Act, incorrectly placing the onus on the plaintiff to disprove that its claim was statute-barred.
The Court clarified that the burden remains on the defendant to prove the claim was discoverable.
The appeal was allowed, setting aside the summary judgment, and directing the claim for unpaid common expense fees to proceed to trial.
Motion for leave to appeal denied with no order as to costs.
The defendants brought a motion for leave to appeal the order of Dubé J. dated October 11, 2023.
The Divisional Court denied the motion for leave to appeal with no order as to costs.
Summary judgment was granted dismissing claims for unpaid common fees and breach of oral contract, but a claim regarding an underfunded reserve fund will proceed to trial.
The defendants moved for summary judgment to dismiss the plaintiff condominium corporation's action, which included claims for unpaid common fees, an underfunded reserve fund, and breach of an oral contract regarding legal fees.
The court granted summary judgment dismissing the claims for unpaid common fees (due to being statute-barred under the Limitations Act) and the oral contract for legal fees (finding no binding agreement due to lack of consensus and consideration).
However, the motion for summary judgment was dismissed for the claim regarding the underfunded reserve fund, as the court found a genuine issue requiring a trial and confirmed the condominium corporation's standing to pursue this claim on behalf of unit-owners.
Drainage report modified to center open drain on property line and remove earth berm.
The appellants appealed an Engineer's report for the Mullen Drain under the Drainage Act.
The Tribunal ordered modifications to the report, including centering the open drain on the property line, removing an earth berm and drop inlet structures, and placing excavated material on the Mullen property.
The Tribunal upheld the Engineer's methodology for the benefit and outlet liability assessments but ordered recalculations based on the modified works.
Insurer's appeal dismissed; property damage from tenant's interference with furnace not excluded by mechanical breakdown or pollution clauses.
The respondents' property was damaged by an oil spill after a tenant bypassed the furnace thermostat, causing it to overheat and overflow.
The appellant insurer denied coverage, relying on pollution and mechanical breakdown exclusions, and later argued the respondents failed to file a proof of loss.
The trial judge found for the respondents, concluding the insurer waived the proof of loss requirement and that neither exclusion applied.
The Court of Appeal dismissed the insurer's appeal, upholding the findings that the adjuster's letter constituted a waiver, the mechanical breakdown was caused by external interference rather than an internal defect, and the pollution exclusion required another operative exclusion to apply.
