Court of Appeal for Ontario

Citation: Musyoki v. Geertsema, 2015 ONCA 643

Date: 20150922

Docket: C60003

Before: Laskin, MacPherson and MacFarland JJ.A.

Between:

Francis Ngau Musyoki

Plaintiff (Appellant)

and

Robert William Geertsema, Barbara Joyce Geerstema, and Greenhill Produce (Thamesville) Ltd.

Defendants (Respondents)

Counsel:

Francis Ngau Musyoki, acting in person

Thomas M. Conway, for the respondents

Heard and released orally: September 18, 2015

On appeal from the judgment of Justice Marc A. Garson of the Superior Court of Justice, dated January 6, 2015.

Endorsement

[1] The appellant’s application to the Lower Thames Valley Conservation Authority before closing, for a permit to inter alia, “repair the easement roadway and for shoreline repairs” makes it clear that he was, at that time, fully aware of any “overuse” of the easement. He saw it and knew the use being made of it at the time.

[2] There was no representation made in the Agreement of Purchase and Sale, only an acknowledgement by him of the fact of an easement and its use.

[3] The motion judge found there was no misrepresentation by the defendant vendors. That finding is supported in the evidence and is entitled to deference in this court.

[4] The allegations in the amended statement of claim are no more than that - mere allegations. There was no evidence to support the claims of misrepresentation.

[5] This was a proper case for the motion judge to grant summary judgment. The appellant failed to adduce any evidence to support his claims. Indeed the record overwhelmingly favours the respondent vendors.

[6] Further, the appellant failed to provide any evidence of damage caused by the defendant vendors, and at para. 275 of his affidavit dealing with the limitation defence, he states that the damage to the property occurred after he acquired title to the property.

[7] Any claims the appellant might have are against Legros and/or his solicitor and as he has told us, he has ongoing claims against them.

[8] The appeal is dismissed.

[9] Costs to the respondents fixed in the sum of $4,500 inclusive of disbursements and HST.

“John Laskin J.A.”

“J. C. MacPherson J.A.”

“J. MacFarland J.A.”