Middlebrook v. Timmins (City), 2009 ONCA 220

CITATION: Middlebrook v. Timmins (City), 2009 ONCA 220

DATE: 20090312

DOCKET: C49200

COURT OF APPEAL FOR ONTARIO

Winkler C.J.O., Goudge and Simmons JJ.A.

BETWEEN:

Lavern C. Middlebrook, Lavern Construction Co. Ltd.

Plaintiffs/Appellants

And

The Corporation of the City of Timmins and Jack Watson

Defendants/Respondents

Counsel:

John J. Adair, for the appellants

Andra Maxwell-Baker, for the respondents City of Timmins and Jack Watson

Heard and released orally: March 3, 2009

On appeal from the judgment of Justice Robert A. Riopelle of the Superior Court of Justice dated July 2, 2008

ENDORSEMENT

[1] The appellants argue that there is a genuine issue for trial as to whether the respondents negligently misrepresented to the appellant Middlebrook that he had obtained a severance of his property in 1996. Assuming that the appellants could establish this representation at trial, the action in our view must still fail.

[2] Mr. Adair candidly acknowledges that the appellant Middlebrook knew nothing had been registered with concern to severance. The Planning Act requires registration for there to be a valid severance. The appellants’ alleged loss was caused not by the respondents’ representation as alleged by the appellant Middlebrook but by the law he was unaware of. The respondents cannot be held accountable for the appellants’ error of law.

[3] The appeal must be dismissed.

[4] Costs to the respondents fixed at $7,250.00 inclusive of disbursements and GST.

“Winkler C.J.O.”

“S. T. Goudge J.A.”

“Janet Simmons J.A.”