Beniuk v. The Corporation of the Municipality of Leamington

[Indexed as: Beniuk v. Leamington (Municipality)]

Ontario Reports

Court of Appeal for Ontario

van Rensburg, Paciocco and Thorburn JJ.A.

March 25, 2020

150 O.R. (3d) 129 | 2020 ONCA 238

Case Summary

Civil procedure — Summary judgment — Genuine issue for trial — Plaintiffs commencing action in nuisance and negligence against Municipality after Ontario Municipal Board declined jurisdiction in injurious affection claim — Motion judge applying basic two-year limitation period and dismissing claim as statute-barred — Judge rejected argument for rolling limitation period without considering plaintiffs' evidence of ongoing damage — Whether Municipality engaged in wrongful conduct causing damage within two years before statement of claim issued was a genuine issue for trial — Whether duty of care under Municipal Act to keep roads in reasonable repair was owed to adjoining landowners also an issue for trial — Municipal Act, 2001, S.O. 2001, c. 25, s. 44.

Limitations — Discoverability — "Appropriate means" — Plaintiffs commencing action in nuisance and negligence against Municipality after Ontario Municipal Board declined jurisdiction in injurious affection claim — Motion judge applying basic two-year limitation period and dismissing claim as statute-barred — Not legally appropriate for plaintiffs to wait until after board's decision to commence civil proceedings — Choosing an alternative process did not in itself suspend running of limitation period — Limitations Act, 2002, S.O 2002, c. 24, ss. 4, 5(1)(a)(iv).

Limitations — Real property — Rolling limitation period — Plaintiffs commencing action in nuisance and negligence against Municipality after Ontario Municipal Board declined jurisdiction in injurious affection claim — Motion judge applying basic two-year limitation period and dismissing claim as statute-barred — Plaintiffs' action not an action to recover land so ten-year limitation not applying — Judge rejected argument for rolling limitation period without considering plaintiffs' evidence of ongoing damage — Whether Municipality engaged in wrongful conduct causing damage within two years before statement of claim issued was a genuine issue for trial — Limitations Act, 2002, S.O 2002, c. 24, s. 4 — Real Property Limitations Act, R.S.O. 1990, c. L.15, s. 4.

Municipal law — Actions against municipality — Negligence — Limitations — Plaintiffs commencing action in nuisance and negligence against municipality after Ontario Municipal Board declined jurisdiction in injurious affection claim — Motion judge applying basic two-year limitation period and dismissing claim as statute-barred — Judge rejected argument for rolling limitation period without considering plaintiffs' evidence of ongoing damage — Whether Municipality engaged in wrongful conduct causing damage within two years before statement of claim issued was a genuine issue for trial — Whether duty of care under Municipal Act to keep roads in reasonable repair was owed to adjoining landowners also an issue for trial — Municipal Act, 2001, S.O. 2001, c. 25, s. 44. [page130]

The plaintiffs' property abutted a rural road originally constructed as a farm access trail. In 2006, the road began to experience a significant increase in heavy truck traffic. The plaintiffs and their neighbours complained to the defendant that the traffic was damaging their properties. The defendant declined to reconstruct the road. In 2009, the plaintiffs commenced a proceeding before the Ontario Municipal Board ("OMB") claiming that the pre-1927 construction of the road caused injurious affection. After the OMB declined jurisdiction in January 2018, the plaintiffs a week later commenced a civil action for damages for nuisance and negligence. The defendant moved for summary judgment to dismiss the action. The motion judge held that the basic two-year limitation period under the Limitations Act applied, and rejected the plaintiffs' argument that their claim was not discovered until the OMB declined jurisdiction over their injurious affection claim. The cause of action was found to have been discovered in 2009, upon receipt of an expert report suggesting a link between the traffic and the damage to the property, and certainly no later than January 2010, when the defendant first raised the issue that the OMB was not the proper forum or venue. The judge also rejected the plaintiffs' argument that a new cause of action arose every time a passing heavy truck caused damage to their home so as to create a rolling limitation period. In addition to finding the action statute-barred, the motion judge concluded that the duty of care under s. 44 of the Municipal Act to keep roads in a reasonable state of repair was not owed to adjoining landowners. The plaintiffs appealed.

Held, the appeal should be allowed in part.

The motion judge did not err in concluding that the basic two-year limitation period applied. There was a ten-year limitation period for an action to recover land, but an action in nuisance or negligence for damages relating to real property did not constitute an action to recover land.

The plaintiffs' claim was discovered in January 2010, when they were put on notice of the forum issue. The motion judge made no palpable and overriding error in finding that it was not legally appropriate for the plaintiffs to wait until after the OMB's decision to commence civil proceedings. The fact that the plaintiffs chose an alternative process did not in itself suspend the running of the limitation period. There was no evidence to explain why the plaintiffs did not commence both an OMB proceeding and a civil action.

The issue of whether the defendant engaged in wrongful conduct resulting in damage within two years before issuance of the statement of claim was a genuine issue requiring trial. In dismissing the plaintiffs' rolling limitation period argument, the motion judge found that the mere presence of trucks on the road did not constitute evidence of damage sustained within the limitation period. In doing so, the motion judge overlooked a December 2016 engineering report relied on by the plaintiffs and identifying ongoing damage to the plaintiffs' residence from the truck traffic. If the plaintiffs succeeded on that issue at trial, they would be limited to recovery for damages sustained within two years before they issued their statement of claim.

There was a novel issue as to whether the duty of care under s. 44 of the Municipal Act was owed to adjoining landowners in the plaintiffs' circumstances. A possible claim under that provision was raised by the OMB and was pleaded by the plaintiffs in their civil action, but it was not clear whether their negligence claim was limited to a statutory breach or extended more broadly. Whether the negligence claim was only under s. 44, and whether that section was available to the plaintiffs, were matters to be determined on a full record. [page131]

407 ETR Concession Co. v. Day (2016), 133 O.R. (3d) 762, [2016] O.J. No. 5006, 2016 ONCA 709, 403 D.L.R. (4th) 385, 1 M.V.R. (7th) 175, 270 A.C.W.S. (3d) 624 [Leave to appeal to S.C.C. refused [2016] S.C.C.A. No. 509]; Equitable Trust Co. v. 2062277 Ontario Inc. (2012), 109 O.R. (3d) 561, [2012] O.J. No. 1605, 2012 ONCA 235, 16 R.P.R. (5th) 173, 289 O.A.C. 345, 348 D.L.R. (4th) 733, 214 A.C.W.S. (3d) 266, consd

Fordham (Litigation guardian of) v. Dutton-Dunwich (Municipality), [2014] O.J. No. 5938, 2014 ONCA 891, 70 M.V.R. (6th) 1, 31 M.P.L.R. (5th) 269, 17 C.C.L.T. (4th) 1, 327 O.A.C. 302, 247 A.C.W.S. (3d) 946, distd

Other cases referred to

Antrim Truck Centre Ltd. v. Ontario (Minister of Transportation), [2013] 1 S.C.R. 594, [2013] S.C.J. No. 13, 2013 SCC 13, 301 O.A.C. 281, 441 N.R. 342, 2013EXP-803, J.E. 2013-433, EYB 2013-219083, 26 R.P.R. (5th) 1, 99 C.C.L.T. (3d) 1, 73 C.E.L.R. (3d) 1, 223 A.C.W.S. (3d) 970, 355 D.L.R. (4th) 666, 108 L.C.R. 157; Beniuk v. Leamington (Municipality), [2017] O.M.B.D. No. 1348, 7 L.C.R. (2d) 51; Boyce v. Toronto (City) Police Services Board, [2012] O;J; No; 1531, 2012 ONCA 230 (C.A.), affg [2011] O.J. No. 7, 2011 ONSC 53, 195 A.C.W.S. (3d) 1149 (S.C.J.) [Leave to appeal to S.C.C. refused [2012] S.C.C.A. No. 265]; Conde v. Ripley (2015), 125 O.R. (3d) 689, [2015] O.J. No. 2627, 2015 ONSC 3342, 2015 OREG Â59,112, 57 R.P.R. (5th) 146 (S.C.J.); Cummings v. Dundas (Town) (1907), 13 O.L.R. 384, [1907] O.J. No. 99, 9 O.W.R. 107 (Div. Ct.) [Leave to appeal to C.A. refused, 1907 CarswellOnt 627]; Dick v. Vaughan (Township) (1917), 1917 CanLII 534 (ON CA), 39 O.L.R. 187, [1917] O.J. No. 224, 34 D.L.R. 577 (C.A.); Fennell v. Deol, [2016] O.J. No. 1745, 2016 ONCA 249, 265 A.C.W.S. (3d) 1029, 97 M.V.R. (6th) 1 (C.A.); Har Jo Management Services Canada Ltd. v. York (Regional Municipality), [2018] O.J. No. 2699, 2018 ONCA 469, 76 M.P.L.R. (5th) 1, 91 R.P.R. (5th) 1, 10 L.C.R. (2d) 159, 292 A.C.W.S. (3d) 869 (C.A.); Harvey v. Talon International Inc. (2017), 137 O.R. (3d) 184, [2017] O.J. No. 1609, 2017 ONCA 267, 277 A.C.W.S. (3d) 433, 412 D.L.R. (4th) 553, 81 R.P.R. (5th) 1 (C.A.); Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 2002 SCC 33, 211 D.L.R. (4th) 577, 286 N.R. 1, [2002] 7 W.W.R. 1, J.E. 2002-617, 219 Sask. R. 1, 10 C.C.L.T. (3d) 157, 30 M.P.L.R. (3d) 1, 112 A.C.W.S. (3d) 991, 2002 DFQ Â10,056; Lilydale Cooperative Ltd. v. Meyn Canada Inc., [2019] O.J. No. 4902, 2019 ONCA 761, 439 D.L.R. (4th) 385 (C.A.); Longo v. MacLaren Art Centre Inc., [2014] O.J. No. 3242, 2014 ONCA 526, 242 A.C.W.S. (3d) 426, 323 O.A.C. 246 (C.A.); McConnell v. Huxtable (2014), 118 O.R. (3d) 561, [2014] O.J. No. 477, 2014 ONCA 86, 41 R.P.R. (5th) 1, 42 R.F.L. (7th) 157, 370 D.L.R. (4th) 554, 237 A.C.W.S. (3d) 505, 315 O.A.C. 3 (C.A.); McPhee v. Plympton (Township) (1987), 1987 CanLII 4223 (ON SC), 61 O.R. (2d) 508, [1987] O.J. No. 1623, 43 D.L.R. (4th) 233, 36 M.P.L.R. 161, 7 A.C.W.S. (3d) 40 (Dist. Ct.); Metropolitan Toronto Condominium Corp. No. 1067 v. L. Chung Development Co., [2012] O.J. No. 5684, 2012 ONCA 845 (C.A.); Montana Equipment Ltd. v. Robert B. Somerville Co., [2017] O.J. No. 2542, 2017 ONSC 3092, 279 A.C.W.S. (3d) 859, 5 L.C.R. (2d) 1, 67 M.P.L.R. (5th) 163 (S.C.J.); Nelson v. Lavoie, [2019] O.J. No. 2660, 2019 ONCA 431, 47 C.C.P.B. (2d) 1 (C.A.); Novak v. St. Demetrius (Ukrainian Catholic) Development Corp., [2017] O.J. No. 3093, 2017 ONSC 3503 (S.C.J.); Ouellette v. Hearst (Town) (2004), 2004 CanLII 36122 (ON CA), 70 O.R. (3d) 204, [2004] O.J. No. 1120, 237 D.L.R. (4th) 504, 184 O.A.C. 377, [2004] I.L.R. ÂG-1747, 46 M.P.L.R. (3d) 54, 5 M.V.R. (5th) 173, 129 A.C.W.S. (3d) 1213 (C.A.); Partridge v. Langenburg (Rural Municipality), 1929 CanLII 220 (SK CA), [1929] S.J. No. 16, [1930] 1 D.L.R. 939, [1929] 3 W.W.R. 555, 24 Sask. L.R. 153 (C.A.); Ridel v. Goldberg (2019), 147 O.R. (3d) 23, [2019] O.J. No. 4006, 2019 ONCA 636, 436 D.L.R. (4th) 453, 71 C.B.R. (6th) 1 (C.A.); Schraeder v. Grattan (Township), 1945 CanLII 81 (ON SC), [1945] O.R. 657, [1945] O.J. No. 537, [1945] 4 D.L.R. 351 (H.C.J.); Strang v. Arran (Township) (1913), 1913 CanLII 608 (ON CA), 28 O.L.R. 106, [1913] O.J. No. 39, 12 D.L.R. 42 (C.A.); Stravino v. Buttinelli, [2015] O.J. No. 1358, 2015 ONSC 1768, [page132] 252 A.C.W.S. (3d) 41, 53 R.P.R. (5th) 275, 7 E.T.R. (4th) 327 (S.C.J.); Toronto Standard Condominium Corp. No. 1487 v. Market Lofts Inc., [2015] O.J. No. 815, 2015 ONSC 1067, 250 A.C.W.S. (3d) 335, 53 R.P.R. (5th) 67 (S.C.J.); Windsor (City) v. Larson (1980), 1980 CanLII 1573 (ON SC), 29 O.R. (2d) 669, [1980] O.J. No. 3706, 114 D.L.R. (3d) 477, 5 A.C.W.S. (2d) 56, 20 L.C.R. 344 (Div. Ct.); Zabanah v. Capital Direct Lending Corp. (2014), 123 O.R. (3d) 350, [2014] O.J. No. 5816, 2014 ONCA 872, [2015] I.L.R. I-5679, 247 A.C.W.S. (3d) 685, 22 C.B.R. (6th) 143, 328 O.A.C. 395, 41 C.C.L.I. (5th) 15 (C.A.), affg [2014] O.J. No. 1967, 2014 ONSC 2219, 240 A.C.W.S. (3d) 190, 33 C.C.L.I. (5th) 14, [2014] I.L.R. I-5599 (S.C.J.) [Leave to appeal to S.C.C. refused [2015] S.C.C.A. No. 36, 2015 CarswellOnt 7052]

Statutes referred to

Expropriations Act, R.S.O. 1990, c. E.26, s. 1(1) [as am.], (b)

Fraudulent Conveyances Act, R.S.O. 1990, c. F.29, s. 2

Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, ss. 2(1)(a), 4, 5 [as am.], (1), (a)(i), (ii), (iii), (iv), (b)

Municipal Act, 2001, S.O. 2001, c. 25, s. 44 [as am.], (1), (2), (3), 284(1)

Real Property Limitations Act, R.S.O. 1990, c. L.15, ss. 1, 4, 43(1)

APPEAL from summary judgment of Carey J., [2019] O.J. No. 1747, 2019 ONSC 1830, 88 M.P.L.R. (5th) 295 (S.C.J.) dismissing an action in nuisance and negligence.

Raymond G. Colautti and Eric Florjancic, for appellants.

Tom Serafimovski and Samuel Atkin, for respondent.

The judgment of the court was delivered by

VAN RENSBURG J.A.: —

Overview

[1] The appellants, Angela Beniuk and Dennis Beniuk, live at 1735 Concession East, R.R. #1 (the "Beniuk residence") in the Municipality of Leamington, Ontario (the "Municipality" or the "respondent"). The Beniuk residence closely abuts Mersea Road East, a rural road originally constructed as a farm access trail.

[2] Beginning in the summer of 2006, Mersea Road East experienced a significant increase in heavy truck traffic. The appellants and their neighbours made repeated complaints to the Municipality, and at a council meeting in February 2008, they expressed concern that the truck traffic was causing damage to their property. The Municipality declined to reconstruct the road.

[3] The appellants retained an engineering firm whose report concluded that structural damage to the Beniuk residence was caused by vibrations transferred to the home from heavy truck traffic on Mersea Road East. [page133]

[4] In December 2009, the appellants commenced a proceeding before the Ontario Municipal Board (the "OMB") claiming that the Municipality's pre-1927 construction of the road caused injurious affection. Pursuant to the Expropriations Act, R.S.O. 1990, c. E.26, the OMB (now the Local Planning Appeal Tribunal) has exclusive jurisdiction over injurious affection claims.

[5] In written reasons issued on January 10, 2018 [ [2017] O.M.B.D. No. 1348, 7 L.C.R. (2d) 51], the OMB determined that it did not have jurisdiction over the appellants' claim. The OMB concluded that the claim for damage caused by traffic vibrations subsequent to the road's construction, which was in respect of the use of the road and not its construction, was not a claim for injurious affection.

[6] After receiving the OMB's decision, the appellants commenced a civil action in the Superior Court claiming damages for nuisance and negligence. The Municipality moved for summary judgment dismissing the action. The motion judge found in the Municipality's favour, concluding that the action was statute-barred and that the duty of care under s. 44 of the Municipal Act, 2001, S.O. 2001, c. 25 (the "Municipal Act"), to keep roads in a reasonable state of repair, is not owed to adjoining landowners.

[7] The Beniuks appeal the summary dismissal of their action on four grounds. Three relate to the respondent's limitation period defence; one relates to the s. 44 duty of care issue.

[8] First, the appellants submit that the motion judge erred in concluding that their action was subject to the basic two-year limitation period under s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B (the "Limitations Act"), and not the ten-year limitation period under s. 4 of the Real Property Limitations Act, R.S.O. 1990, c. L.15 (the "RPLA"). Second, the appellants assert that, if the two-year limitation period applies, the motion judge erred in rejecting their argument that, under s. 5(1)(a)(iv) of the Limitations Act, it was not "legally appropriate" to commence their civil action until after the OMB released its decision. Third, the appellants contend that the motion judge overlooked evidence of damage to their property within the two-year period before they commenced their action; they argue that even if they are statute-barred from suing the respondent for conduct occurring prior to that two-year period, they should be allowed to continue their action with respect to such damage. Fourth, they submit that the motion judge erred in rejecting their claim under s. 44 of the Municipal Act on the basis that the duty of care is only owed to users of the road and not to adjoining landowners.

[9] For the reasons that follow, I would allow the appeal. [page134]

[10] Briefly, I have concluded that there was no error in the motion judge's conclusions that a two-year limitation period applied and that most of the appellants' civil action is statute-barred under s. 4 of the Limitations Act. However, I would permit the action to continue with respect to damage to the appellants' property within the two-year period before the action was commenced. The record supports the existence of such damage and there is a genuine issue requiring a trial as to whether the limitation period has expired in respect of ongoing tortious conduct of the respondent resulting in such damage. Finally, I would leave open for trial the issue of whether the statutory duty of care under s. 44 of the Municipal Act was owed to the appellants by the Municipality. This question, which was decided summarily by the motion judge, should remain open to be determined at the time that the appellants' claim for nuisance is considered. It is neither appropriate nor necessary to resolve the issue of the proper scope of s. 44 on the limited record and arguments on this appeal.

Facts

Damage to the Beniuk residence and traffic on Mersea Road East

[11] The Beniuk residence is a one-storey, wood-framed dwelling with a basement and detached barn. It was constructed by Mr. Beniuk's grandfather around 1938-1940. The Beniuk residence is located roughly 14 feet from the paved portion of Mersea Road East.

[12] The volume of heavy truck traffic on Mersea Road East significantly increased beginning in the summer of 2006. The appellants' evidence was that, at peak times, they documented one heavy transport truck every 20 minutes and that the trucks would drive well in excess of the posted speed limit of 40 km/ h. The appellants' theory is that the increase in truck traffic resulted from the use of a neighbourhood farm as a warehouse for a local food processor and other neighbouring farm properties as packing sheds, possibly in violation of zoning by-laws.

[13] Between December 2007 and February 2008, the appellants and their neighbours communicated with the Municipality about the increase in heavy truck traffic, attending council meetings and writing letters. On February 11, 2008, the appellants attended a council meeting to communicate that the truck traffic was causing damage to their property.

[14] The municipal council instructed the administration to "review the condition of the road pavement and assess alternative road improvement alternatives". According to a report dated January 21, 2008, prepared by the Manager of Engineering [page135] Services and the Director of Community Services, Mersea Road East was built on the remnants of a former marsh. In 2008, the road structure consisted of a mixture of "old wetland organic materials with clay, overlaid with a poor-quality granular material varying in depth from 0.1 m. to 0.3 m. (4 in. to 12 in.)". The report noted that the engineering firm Golder Associates was of the view that the road could be rebuilt by excavating the existing road base and placing a new layer of good quality granular material and asphalt, at a cost of approximately $480,000. These suggested changes were based on low traffic volumes and a limited number of heavy truck trips. The report also recommended changes to the municipal heavy truck by-law.

[15] The Municipality decided not to reconstruct the road.

[16] The appellants then retained the engineering firm CSI Windsor. In its report dated February 28, 2009 (the "CSI Windsor Report"), the firm concluded that damage to the Beniuk residence, including cracks in the walls, tiles, ceiling finishes and windows, was caused by vibrations transferred to the home from heavy truck traffic on Mersea Road East.

[17] In December 2009, the appellants pursued a claim against the Municipality. They commenced proceedings before the OMB, by Statement of Claim and Notice of Arbitration, alleging that the Municipality's original pre-1927 construction of the road constituted injurious affection under the Expropriations Act.

[18] The Municipality delivered its Reply on January 5, 2010. Among other things, the Municipality pleaded that the OMB claim was not a claim for injurious affection and that the OMB was not the proper forum or venue to determine the dispute.

The 2013 road repair and evidence of ongoing damage

[19] On May 29, 2013, the Municipality wrote to the appellants, advising them that the existing road base would be pulverized to construct a new "Granular Road Base and New Tar and Chip Surface". Construction was to begin in two weeks. The record includes the call for tenders for this project, which is a 50-page document outlining the Municipality's repair plan. In June 2013 the road work was completed. On September 6, 2013, when the OMB asked the parties for an update, the appellants' counsel sent a response indicating that the attempt to pulverize the road had no material effect in fixing the root problem.

[20] The appellants allege that the damage to their house is ongoing. There is evidence that their basement flooded in May 2015. They retained a second forensic engineer, Luigi Lecce of LGL Consulting, to provide an updated report on the structural damage and building losses. The report, which is dated December 1, [page136] 2016 (the "Lecce Report"), stressed that the damage to the Beniuk residence was ongoing:

Some of the same sources that initially contributed to the reported stream of Mechanical Damages are still ongoing, and therefore preclude the possibility of a stable environment within which to mitigate the losses, and repair the Beniuk residence;

Similarly, the consequences that were associated with the suite of Mechanical Damages that were sustained by the Beniuk residence (between 2006 and 2009) and then re-introduced again (between 2009 and 2010), have not abated (because the source of the physical disruptions has continued to persist);

The nature and extent of the conditions created by the ongoing nature of both the physical disruptions & consequential damages are such that they have continued to prevent the mitigation of the sustained losses, and have continued to thwart other interim attempts aimed at repairing the Beniuk residence. Consequently, any useful (and lasting) progress, directed at resolving the losses, cannot currently be achieved;

The sources of the problems (that began to be reported by the [Appellants] in 2006) were found to stem from a variety of "Synthetic" events (i.e. Physical disruptions associated with the release of uncontrolled vibrations that were derived from designed/manufactured/mechanical sources, or otherwise generated by machinery) which are still on-going, and include the following:

The subject Cause of the problems (that continue to entail exposure to uncontrolled Vibrations, exposure to Shock Waves, forced physical Displacement, exposure to Cyclic-Loading conditions, and exposure to Ground-Distortion Cycles) originate along the 1934 municipal embankment structure (which currently supports the existing travelled roadway that serves as Mersea Road 'E') whenever Independent Heavy-Truck traffic & Tractor-Trailer Combinations traverse the 380-foot stretch of roadway across the frontage of the Beniuk property. . .

(Emphasis added)

[21] The appellants also produced photographs of heavy trucks passing by their home between June 2016 and June 2017.

[22] The Municipality disputed the appellants' evidence that there was ongoing damage. It had retained its own professional engineer, David C. McCloskey, to review the Lecce Report and to comment on the appellants' action. Mr. McCloskey disagreed with a number of conclusions in the Lecce Report. In his report dated September 11, 2017, Mr. McCloskey noted that the Beniuk residence was over 66 years old in 2006 and likely exhibited "typical damage and defects of similar structures of this age, namely: building settlement causing uneven floors and 'sticking' windows and doors, cracks in plaster/drywall, etc.". He also [page137] suggested that the truck traffic from 2006 to 2008 would not have had a significant effect on the Beniuk residence:

It is our opinion that the passage of trucks, which were stated as not being more than three per hour or fifteen per day between 2006-2008, would not have had a significant effect on the underlying layer of "firm, grey black, organic silty clay/clayey topsoil" given truck loads are moving loads and the overlying granular soils would have acted to distribute the truck axle loads over a larger area at the surface of the "firm, grey black, organic silty clay/clayey topsoil".

[23] Mr. McCloskey also highlighted that vibrations from trucks are heightened depending on the speed of the trucks and the size and depth of the road's potholes. He stated that "[i]f the road is smooth, ground vibrations from trucks would be minimal". The Municipality relied on this evidence to submit that, subsequent to the resurfacing of Mersea Road East in 2013, there would have been no damage from truck traffic, as the vibrations would have been "minimal".

The OMB decision

[24] The parties' dispute before the OMB did not resolve and, on February 16, 2012, they attended mediation. Examinations for discovery were held on June 12, 2014, and a hearing date was set for December 4, 2017. The Board raised the question of jurisdiction, and the respondent asserted that its position was that this was not a claim for injurious affection, and that in any event, the limitation period for a claim before the Board had expired. The OMB heard submissions on these preliminary issues, and in written reasons issued on January 10, 2018, concluded that it did not have jurisdiction over the appellants' claim because the claim did not constitute "injurious affection" under the Expropriations Act.

[25] The OMB framed the jurisdictional issue as follows: can the original construction of a road by a statutory authority be considered injurious affection under the Expropriations Act when damage arises from the use of that road?

[26] Subsection 1(1) of the Expropriations Act defines "injurious affection" as follows:

"injurious affection" means,

(a) where a statutory authority acquires part of the land of an owner,

(i) the reduction in market value thereby caused to the remaining land of the owner by the acquisition or by the construction of the works thereon or by the use of the works thereon or any combination of them, and [page138]

(ii) such personal and business damages, resulting from the construction or use, or both, of the works as the statutory authority would be liable for if the construction or use were not under the authority of a statute,

(b) where the statutory authority does not acquire part of the land of an owner,

(i) such reduction in the market value of the land of the owner, and

(ii) such personal and business damages, resulting from the construction and not the use of the works by the statutory authority, as the statutory authority would be liable for if the construction were not under the authority of a statute, and for the purposes of this clause, part of the lands of an owner shall be deemed to have been acquired where the owner from whom lands are acquired retains lands contiguous to those acquired or retains lands of which the use is enhanced by unified ownership with those acquired. . .

(Emphasis in the OMB's decision)

[27] The appellants' claim was under s. 1(1)(b), where the Municipality had not acquired any part of the appellants' land. The OMB cited the Supreme Court of Canada's decision in Antrim Truck Centre Ltd. v. Ontario (Minister of Transportation), [2013] 1 S.C.R. 594, [2013] S.C.J. No. 13, 2013 SCC 13, at para. 5, which laid out three requirements that must be established under s. 1(1)(b):

(i) the damage must result from action taken under statutory authority;

(ii) the action would give rise to liability but for that statutory authority; and

(iii) the damage must result from the construction and not the use of the works.

[28] The OMB concluded that the second requirement was met in this case -- the ingredients of a nuisance claim were likely present based on the undisputed facts. However, it held that the first and third requirements had not been established.

[29] With respect to the first requirement, the appellants submitted that the relevant "action" of the Municipality was its pre-1927 construction of the road. The OMB rejected this submission for three reasons. First, it stated that the appellants' claim was largely based on inaction as opposed to action. Their submission was essentially that the Municipality had failed to reconstruct the road to an appropriate standard and had failed to enforce its traffic and zoning by-laws, allowing the truck traffic problem to persist. According to the OMB, these were not "actions of a statutory authority as contemplated by the [Expropriations Act]". Second, the OMB concluded that, even if it were to accept that the claim [page139] was based on the pre-1927 construction of the road, there was an evidentiary gap as to when the road was constructed or whether it was constructed under statutory authority. Third, the OMB stated that claims for injurious affection had to be brought by an "owner" at the time of or following the statutory action. According to the OMB, the appellants' interpretation would result in a problematic floodgate of claims from former property owners who are dissatisfied with the condition and operation of their roads.

[30] With respect to the third requirement in the Antrim test, the appellants acknowledged that the requirement was not strictly met. However, they submitted that their claim was novel and nuanced because it was about the continued use of a substandard road. While the OMB appreciated that the claim was novel, it could not reconcile the appellants' submission with the well-established "construction and not the use" rule, citing Windsor (City) v. Larson (1980), 1980 CanLII 1573 (ON SC), 29 O.R. (2d) 669, [1980] O.J. No. 3706 (Div. Ct.) and referring to Montana Equipment Ltd. v. Robert B. Somerville Co., [2017] O.J. No. 2542, 2017 ONSC 3092, 67 M.P.L.R. (5th) 163 (S.C.J.), where the court concluded that claims for damage caused by traffic vibrations subsequent to the construction of Highway 7 in Vaughan related to the use, and not the construction, of the work. According to the OMB, "[t]he same [was] clearly true of the Beniuks' claim, which relates to vibrations caused by the continued use of the road in front of their home". The OMB concluded that the appellants' claim did not meet the definition of injurious affection. It stated at para. 25:

The Board finds that the Beniuks' claim does not constitute injurious affection for the purpose of the [Expropriations Act], and consequently, that the Board has no jurisdiction over this matter. While the Board is sympathetic to what the Beniuks have endured over the past decade, the Board is simply not the appropriate forum to compensate them for damages. As both counsel noted, there are other venues specifically tailored for claims such as these, including a procedure concerning highway maintenance contained in the Municipal Act, 2001 [citing to s. 44].

The Motion Decision

[31] Within days of receiving the OMB's decision, the appellants commenced their civil action against the Municipality on January 17, 2018, claiming damages for nuisance and negligence. The parties agreed that the affidavits of documents and the transcripts of examinations for discovery in the OMB proceedings would stand for productions and discoveries in the civil action.

[32] The Municipality moved for summary dismissal of the action. It asserted that the appellants' claim was statute-barred under the Limitations Act, that the Municipality was not liable to [page140] compensate the appellants for nuisance, and that there was no claim in this case under s. 44 of the Municipal Act. The appellants moved for an order dismissing the summary judgment motion and seeking judgment in their favour.

[33] There are three conclusions of the motion judge on the limitations issue that are challenged on appeal. First, the motion judge held that the basic two-year limitation period under the Limitations Act applied. The appellants argued that their action was an "an action to recover land" within the meaning of ss. 1 and 4 of the RPLA and therefore subject to a ten-year limitation period, which had not expired. The motion judge disagreed, concluding that, although the action may have "concerned" land or may have been "related" to land, it was not an "action to recover land" in the relevant sense: para. 20.

[34] Second, the motion judge held that the action was statute-barred under the two-year limitation period. The appellants relied on s. 5(1)(a)(iv) of the Limitations Act to argue that they had not "discovered" their claim until after the OMB decided it had no jurisdiction, because it was only then that it was appropriate to commence their civil action. The motion judge disagreed, concluding that the appellants knew of the forum issue by January 5, 2010, at the latest, when the respondent raised the issue of the wrong forum in its Reply to the OMB proceeding. The motion judge also found that a reasonable person with the abilities and in the circumstances of the appellants ought to have discovered that a civil action was appropriate upon receiving the CSI Windsor Report on February 28, 2009: paras. 26 and 27.

[35] Third, the motion judge held that there was no "rolling limitation period" on these facts. The appellants argued that a new cause of action arose every time a heavy truck passed by their house causing damage to the home. The motion judge stated that, for this to be the case, there would have to be evidence of additional damage to the Beniuk residence in the two-year period before the statement of claim was filed (between January 17, 2016 and January 17, 2018). He concluded that, even allowing that there was a continuing cause of action, there was no evidence of any additional damage in the record: "I do not find the mere presence of trucks continuing to drive on Mersea Road E., particularly following the resurfacing, to be evidence of additional damage sustained within the limitation period": para. 23.

[36] Given his conclusions on the limitations issue, the motion judge declined to consider whether the Municipality was liable to compensate the appellants for nuisance (the second issue on the motion). He concluded that if he was wrong on the application of the Limitations Act, the evidence relied on by the appellants might [page141] be entirely different depending on which date and limitation period is accepted as appropriate: para. 28.

[37] As for the appellants' claim under s. 44 of the Municipal Act, the motion judge concluded that the duty of care under that section is owed to users of the road, not to adjoining landowners. As authority, he cited this court's decision in Fordham (Litigation guardian of) v. Dutton-Dunwich (Municipality), [2014] O.J. No. 5938, 2014 ONCA 891, 327 O.A.C. 302 (C.A.), at paras. 28-30. Accordingly, he held that, even if there was a breach of a duty to maintain Mersea Road East, the duty was not owed to the appellants: para. 32.

Issues on Appeal

[38] The broad issue on appeal is whether the appellants' civil action is statute-barred. This turns on three sub-issues:

(1) Does the ten-year limitation period under s. 4 of the RPLA apply to the appellants' civil action?

(2) Is the appellants' civil action statute-barred under s. 4 of the Limitations Act?

(3) Is there any part of the appellants' civil action that can continue?

[39] The parties also made brief written submissions on whether the duty of care under s. 44 of the Municipal Act is owed to adjoining landowners in the appellants' circumstances. Although I will provide some brief comments, because of the limited record and sparse submissions on this issue, I consider it inappropriate to determine the issue definitively in this appeal. Rather, it is appropriate to leave open for determination at trial or otherwise in the course of the proceedings, and on a proper record, whether the appellants have a claim under s. 44 of the Municipal Act in this case.

[40] The balance of these reasons will address each issue in turn.

Analysis

Issue 1: Does the ten-year limitation period under [s. 4](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l15/latest/rso-1990-c-l15.html) of the [RPLA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l15/latest/rso-1990-c-l15.html) apply to the appellants' civil action?

[41] The motion judge's conclusion that s. 4 of the RPLA does not apply to the appellants' civil action is reviewable on a standard of correctness: Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 2002 SCC 33, at para. 8. For the reasons that follow, I agree with the motion judge's conclusion on this issue. [page142]

[42] Subsection 2(1)(a) of the Limitations Act provides that the Limitations Act does not apply to proceedings to which the RPLA applies. Section 4 of the RPLA provides for a ten-year limitation period for an action to recover land:

4. No person shall make an entry or distress, or bring an action to recover any land or rent, but within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to some person through whom the person making or bringing it claims, or if the right did not accrue to any person through whom that person claims, then within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to the person making or bringing it.

[43] When the elements that do not apply to this case are removed, s. 4 provides that "no person shall bring an action to recover any land, but within ten years after the time at which the right to bring any such action first accrued to the person bringing it". The issue here is whether the appellants' claim is an "action to recover land" within the meaning of the RPLA.

[44] The appellants point to the definition of "land" in s. 1 of the RPLA:

"land" includes messuages and all other hereditaments, whether corporeal or incorporeal, chattels and other personal property transmissible to heirs, money to be laid out in the purchase of land, and any share of the same hereditaments and properties or any of them, any estate of inheritance, or estate for any life or lives, or other estate transmissible to heirs, any possibility, right or title of entry or action, and any other interest capable of being inherited, whether the same estates, possibilities, rights, titles and interest or any of them, are in possession, reversion, remainder or contingency;

(Emphasis added)

[45] They rely on the term "messuages", which refers to a dwelling house, its outbuildings, the area immediately surrounding the dwelling, and the adjacent land appropriate to its use: McConnell v. Huxtable (2014), 118 O.R. (3d) 561, [2014] O.J. No. 477, 2014 ONCA 86, at para. 14. The appellants also parse out and rely on the phrase "any right of action". Putting these pieces together, the appellants submit that an "action to recover land" includes an action to recover rights that run with the land, and that a cause of action for nuisance is tied to and arises out of the right to use and enjoy land without substantial interference. Accordingly, the appellants submit that a cause of action for nuisance is an incorporeal or intangible right that runs with the property and is captured by the definition of "land" in the RPLA. They point to a passage in Equitable Trust Co. v. 2062277 Ontario Inc. (2012), 109 O.R. (3d) 561, [2012] O.J. No. 1605, 2012 ONCA 235, where Perell J. (sitting on this court ad hoc) stated that the RPLA is intended to cover actions "affecting" land: Equitable Trust, at para. 28. [page143]

[46] I do not accept the appellants' submission. There is no support in the jurisprudence that an action in nuisance or negligence for damages relating to real property is "an action to recover land" for the purposes of the RPLA. That land or real property is involved in an action does not mean that the RPLA applies: Harvey v. Talon International Inc. (2017), 137 O.R. (3d) 184, [2017] O.J. No. 1609, 2017 ONCA 267, at paras. 51-52. Typically, actions to recover land seek to assert property rights. And Perell J.'s remark from Equitable Trust that the RPLA covers actions "affecting" land has been commented on specifically by this court, and later by Perell J. himself, as a statement that should be interpreted narrowly and not out of the context of that case.

[47] In Equitable Trust, the plaintiff provided a mortgage loan to a corporate borrower in February 2005. The defendants personally guaranteed the loan. After default, the plaintiff issued a notice of sale under mortgage (in December 2007), and after the property was sold, sued the guarantors and others for the deficiency. The defendants moved for summary dismissal of the action, arguing that it was statute-barred under the Limitations Act. The plaintiff relied on s. 43(1) of the RPLA, which, among other things, provides for a ten-year limitation period for an action upon a covenant contained in an indenture of mortgage. The defendants argued that s. 43(1) did not apply because a covenant can only be given by a party to the mortgage. They asserted that a two-year limitation period applies to claims on guarantees. Perell J., writing for this court, disagreed and held that s. 43(1) of the RPLA applied. He explained, at paras. 28 and 30, that the RPLA applied because:

. . . [a] guarantee given in conjunction with a mortgage transaction affects real property law rights. Guarantors, if they have made payments toward the mortgage debt, need to be served in mortgage enforcement proceedings because they have an equity of redemption and an interest in the mortgaged property . . .

It is true that it may not always be easy to determine whether a particular guarantee, like the guarantee in [Bank of Nova Scotia v. Williamson (2009), 97 O.R. (3d) 561, [2009] O.J. No. 4507, 2009 ONCA 754 (C.A.)] is subject to the Limitations Act, 2002 or, like the guarantee in the case at bar, is subject to the Real Property Limitations Act. However, it does not follow that that all guarantees should be treated the same way. It has been the case historically that guarantees associated with land transactions have different limitation periods from guarantees associated with contract claims. Moreover, as already noted, it is my view that the Legislature intended that all limitation periods affecting land be governed by the Real Property Limitations Act.

(Emphasis added) [page144]

[48] Perell J.'s comment that the RPLA applies to all limitation periods "affecting" land was thus only a response to the defendants' argument that the Limitations Act applies to all claims relating to guarantees. This explains and places in context his observation that "it would cause much more confusion and uncertainty in the law, if the limitation period for enforcing the mortgage debt was different from the limitation period for enforcing guarantees of that debt": Equitable Trust, at para. 31. Moreover, Perell J. was clearly not interpreting the phrase "action to recover land" in s. 4 of the RPLA, but rather "covenant contained in an indenture of mortgage" in s. 43(1). The appellants' reliance on Equitable Trust is therefore misplaced.

[49] Subsequent case law interprets Perell J.'s comment from Equitable Trust narrowly. In Zabanah v. Capital Direct Lending Corp., [2014] O.J. No. 1967, 2014 ONSC 2219, 33 C.C.L.I. (5th) 14 (S.C.J.), affd (2014), 123 O.R. (3d) 350, [2014] O.J. No. 5816, 2014 ONCA 872, leave to appeal to S.C.C. refused [2015] S.C.C.A. No. 36, 2015 CarswellOnt 7052, the defendant was a mortgage broker who had sold the plaintiff a mortgage that had been fraudulently obtained. The defendant asserted a limitation period defence to the plaintiff's action for negligence, breach of contract, and breach of fiduciary duty. On the defendant's summary judgment motion, the action was dismissed as statute-barred, with the court rejecting the plaintiff's claim that the ten-year limitation period under the RPLA applied. The court concluded that the plaintiff's claim for damages against the mortgage broker was not "upon a covenant contained in an indenture of mortgage" and was not a claim affecting land.

[50] On appeal, this court highlighted, at para. 18, that a negligence claim involving real property is different from a claim to an interest in land:

We agree with the motion judge's qualification regarding s. 43 of the RPLA, that "[t]o the extent that language could be read as encompassing every action in which a mortgage or piece of real estate is in any way involved, I do not believe that it accurately describes the present state of the law." The motion judge's statement at the end of para. 46 is unassailable, and makes all the difference: "Nothing that this court decides will affect any party's relationship to the second mortgage or the property." The appellant's action, as against [the broker], is simply a negligence and contract claim, and is not a claim to an interest in land, as in [Equitable Trust].

(Emphasis added)

[51] See, also, Metropolitan Toronto Condominium Corp. No. 1067 v. L. Chung Development Co., [2012] O.J. No. 5684, 2012 ONCA 845 (C.A.), at para. 7, where this court again emphasized that actions for damages are not encompassed by the RPLA; Toronto Standard Condominium Corp. No. 1487 v. Market Lofts Inc., [page145] [2015] O.J. No. 815, 2015 ONSC 1067, 53 R.P.R. (5th) 67 (S.C.J.), at paras. 53-54, where Perell J. clarified, after citing his previous decision in Equitable Trust, that the incidental involvement of land or real property in an action does not mean that the RPLA applies; Conde v. Ripley (2015), 125 O.R. (3d) 689, [2015] O.J. No. 2627, 2015 ONSC 3342, 57 R.P.R. (5th) 146 (S.C.J.), at paras. 41-44, both of which considered whether an action under s. 2 of the Fraudulent Conveyances Act, R.S.O. 1990, c. F.29 counted as an "action to recover land" under s. 4 of the RPLA and reiterated that actions to recover land generally seek a property interest and involve property rights; Harvey, at para. 51, where this court considered the meaning of "money to be laid out in the purchase of land" and, in the course of doing so, emphasized the difference between claims for damages and claims covered by the RPLA; and finally, McConnell, where this court held that a constructive trust claim, based in unjust enrichment, was an action to recover land under s. 4 of the RPLA because it was a claim for a share in property.

[52] Accordingly, I conclude that s. 4 of the RPLA does not apply to the appellants' civil action. The weight of authority is that an action in nuisance or negligence for damages, whether relating to real property or not, does not fit within the scope of s. 4. The motion judge did not err in concluding that the basic two-year limitation period under the Limitations Act applied.

Issue 2: Is the appellants' civil action statute-barred under s. 4 of the Limitations Act?

[53] The question of whether a limitation period expired prior to the issuance of a statement of claim is a question of mixed fact and law and subject to review on the standard of palpable and overriding error: Longo v. MacLaren Art Centre Inc., [2014] O.J. No. 3242, 2014 ONCA 526, 323 O.A.C. 246 (C.A.), at para. 38. However, where there is an extricable error of principle, the standard of review is correctness: Housen, at paras. 8 and 36.

[54] I agree with the motion judge that it was not "legally appropriate" under s. 5(1)(a)(iv) for the appellants to wait until after the OMB's decision to commence civil proceedings. I am not persuaded that the motion judge erred in principle in his interpretation and application of s. 5(1) (a)(iv), or that his conclusion, based as it was on the evidence before him, reveals any palpable and overriding error.

[55] The two-year limitation period and the principle of discoverability are codified in ss. 4 and 5 of the Limitations Act: [page146]

4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

5(1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

[56] The basic two-year limitation period begins to run on the day the claim was discovered. The date of discovery is the earlier of the two dates under s. 5(1) -- when (a) the person with the claim had knowledge of, or (b) a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have had knowledge of, the matters referred to in s. 5(1)(a)(i) to (iv). If either of these dates is more than two years before the claim was issued, the claim is statute-barred: Fennell v. Deol, [2016] O.J. No. 1745, 2016 ONCA 249, 97 M.V.R. (6th) 1 (C.A.), at para. 20.

[57] The appellants' submission that the limitation period was tolled while they pursued the OMB proceedings hinges on s. 5(1)(a)(iv). They say that they did not know, and a reasonable person in their circumstances would not have known, that it was "legally appropriate" to start a civil claim in the Superior Court until after they received the OMB's ruling with respect to jurisdiction. The appellants rely on the "alternative process" argument from 407 ETR Concession Co. v. Day (2016), 133 O.R, (3d) 762, [2016] O.J. No. 5006, 2016 ONCA 709, leave to appeal to S.C.C. refused [2016] S.C.C.A. No. 509, 2017 CarswellOnt 6258, where this court concluded that a proceeding may not be appropriate under s. 5(1)(a)(iv) where the party with the claim is pursuing another resolution process that would eliminate the loss and thereby avoid needless litigation. The appellants submit that, if they had been successful in their claim for injurious affection, the OMB proceeding would have obviated the need to bring a civil proceeding. The civil action was not "legally appropriate" before the OMB proceeding concluded. [page147]

The 407 ETR case

[58] I begin by noting that 407 ETR is not authority, as the appellants contend, that a civil action is never an appropriate proceeding until after an alternative process has run its course. In that case, 407 ETR followed a statutory process that provided a mechanism to refuse defaulting customers the ability to renew their license plates until all tolls, fees and interest had been paid in full. 407 ETR commenced a civil action against a customer for unpaid tolls, after the statutory process did not recover the debt that 407 ETR was owed. When the customer raised a limitations defence, 407 ETR invoked s. 5(1)(a)(iv) of the Limitations Act, arguing that it did not know, and could not reasonably have known, that a civil action was appropriate until after the internal administrative process had run its course. This court agreed. Laskin J.A. explained, at paras. 39-40:

A civil action only becomes appropriate when 407 ETR has reason to believe it will not otherwise be paid -- in other words, when the usually effective licence plate denial process has run its course. Thus, the date when a vehicle permit expires for the failure to pay a toll debt is the date a civil action is an appropriate means to recover that debt. . .

[U]nder s. 5(1)(a)(iv) of the [Limitations Act] the date a proceeding would be an appropriate means to recover a loss must have "regard to the nature of the . . . loss". So, in fixing the appropriate date, it may not be enough that the loss exists and the claim is actionable. If the claim is the kind of claim that can be remedied by another and more effective method provided for in the statute, then a civil action will not be appropriate until that other method has been used. Here, a claim will not be appropriate until 407 ETR has used that other method, without success.

[59] Laskin J.A. then referred to the evidence that the administrative process provided in the statute was typically very effective. He also pointed to s. 5(1)(b), which requires the court to take into account the "circumstances of the person with the claim". He concluded, at para. 45, that 407 ETR's circumstances, requiring the processing of an enormous number of transactions without the ability to bar defaulting debtors from using the highway, suggested that requiring it to sue before finding out whether license plate denial had achieved its purpose would be inappropriate: 407 ETR, at para. 45. A third consideration was the need to deter needless litigation: 407 ETR, at para. 48.

[60] 407 ETR does not stand for a general principle that a limitation period will not begin to run whenever an alternative process that might resolve the matter has not yet run its course. It is a matter of evidence. Indeed, Laskin J.A. noted, at para. 34, that when an action is "appropriate" will depend on the specific factual or statutory setting of each individual case, and that case law [page148] applying s. 5(1) (a)(iv) is of limited assistance because each case will turn on its own facts. In 407 ETR, the court considered the evidence on the motion about the statutory scheme and the effectiveness of the administrative process before deciding that it would be reasonable for such a process to run its course before a civil proceeding was appropriate.

[61] Recently, several cases considering the application of s. 5(1)(a)(iv) have come before this court. The court has emphasized, echoing the words of Laskin J.A. in 407 ETR, that when a proceeding is appropriate will turn on the facts of each case: see, for example, Nelson v. Lavoie, [2019] O.J. No. 2660, 2019 ONCA 431, 47 C.C.P.B. (2d) 1 (C.A.), at para. 25; and Ridel v. Goldberg (2019), 147 O.R. (3d) 23, [2019] O.J. No. 4006, 2019 ONCA 636, 436 D.L.R. (4th) 453 (C.A.), at para. 71.

[62] This case did not involve an alternative process available under a statutory scheme. It did, however, involve an alternative process that the appellants were pursuing, as in 407 ETR,against the same party.

[63] The fact that a plaintiff chooses to pursue an alternative process does not in itself suspend the running of the limitation period under s. 5(1)(a)(iv). Whether an alternative process will have this effect will depend on the particular factual circumstances and the evidence before the court in determining the limitations issue. In this case, there was no evidence to explain why the appellants chose to pursue the OMB route rather than commencing both an OMB proceeding and a civil action.

[64] In Har Jo Management Services Canada Ltd. v. York (Regional Municipality), [2018] O.J. No. 2699, 2018 ONCA 469, 76 M.P.L.R. (5th) 1 (C.A.), the appellant made a claim against the respondent municipality after its property was damaged by flooding following two significant rainfalls in May 2013. The floodwaters came from adjacent lands that the municipality had expropriated in 2009 for a construction project. There were pending proceedings before the OMB, commenced by the appellant in 2013, claiming damages for injurious affection in respect of the expropriation. Following the flooding, the appellant's lawyer wrote a claim letter stating that the respondent's construction activities caused flooding and damage to the appellant's property, and indicating that the source of the flooding had to be determined immediately. In its response of June 28, 2013, the respondent advised that the flooding was caused not by its construction activities, but by a blocked catch basin on the appellant's property that needed to be flushed.

[65] The appellant commenced a civil action two years after the receipt of the June 28, 2013 letter. The respondent was successful [page149] in its motion for summary dismissal on the basis that the claim was discoverable when the flooding occurred in May 2013, and the limitation period had expired.

[66] On appeal to this court, the appellant argued that the action was not discoverable until receipt of the June 28, 2013 letter because it did not know the cause of the flooding or the respondent's position with respect to the cause of the flooding until that date. If the respondent had conceded that the flooding was caused by the construction, the claim could have been included as part of the appellant's existing claim for injurious affection; if, on the other hand, the respondent offered another theory on the cause of the flooding, a civil action for nuisance or negligence would be necessary.

[67] This court agreed with the appellant. Feldman J.A. noted that the first time there was a suggestion that the flooding might have been caused by something other than the construction activities (which would have fallen within the existing injurious affection claim) was in the June 28, 2013 letter. It was only on that date that the appellant knew or ought to have known, under s. 5(1)(a)(iv), that a court proceeding, and not a proceeding before the OMB, would be an appropriate means to seek to remedy its loss.

[68] In Har Jo, the appellant had also argued in the alternative that the limitation period for the flooding claim did not begin to run until after the OMB had determined its jurisdiction. The court in Har Jo did not have to determine this issue, but Feldman J.A. stated in obiter, at para. 44:

Case law suggests that in circumstances similar to those in this case, plaintiffs have often commenced two proceedings, one before the OMB and one in the Superior Court. Defendants may then seek a stay of the court proceeding pending a determination of jurisdiction by the OMB, or even dismissal of the court claim if it is clearly a claim for injurious affection: see e.g. Montana Equipment Ltd. v. Robert B. Somerville Co., 2017 ONSC 3092 [(Ont. S.C.J.)]; Great Land (Westwood) Inc. v. York (Regional Municipality), 2016 ONSC 5975, 3 L.C.R. (2d) 1 [(Ont. S.C.J.)]; and Curactive Organic Skin Care Ltd. v. Ontario, 2011 ONSC 2041, 102 L.C.R. 238 [(Ont. S.C.J.)], aff'd 2012 ONCA 81, 105 L.C.R. 26 [(Ont. C.A.)].

Application to the appellants' circumstances

[69] In the present case, counsel presumably thought that the appellants' claim was a case for injurious affection and therefore pursued it before the OMB. However, the appellants were on notice that the Municipality challenged the jurisdiction of the OMB to determine their claim when, on January 5, 2010, they received the Municipality's reply pleading that this was not a claim for injurious affection. The Municipality pleaded: [page150]

4. The Respondent states that the Ontario Municipal Board has no jurisdiction or authority to adjudicate the Claimants' request for Arbitration for its claim for compensation with respect to the land and business set out in the Notice of Arbitration and Statement of Claim.

5. The Respondent states that the Ontario Municipal Board is not the proper forum or venue to determine this dispute and the Claimants' request for Arbitration.

6. The Respondent denies that the Claimants have suffered injurious affection to their property that was caused or created by the Respondent and as such the Respondent denies that the Expropriations Act applies to the facts as pleaded in the Statement of Claim.

7. The Respondent denies that the Claimants suffered any injurious affection to property caused by the construction of the roadway of Concession E [Mersea Road East].

[70] While I can appreciate why the appellants may have thought they had a claim for injurious affection, it has always been a principle of limitations law that a plaintiff knows, or could by the exercise of reasonable diligence, determine what legal principles apply. See, for example, Boyce v. Toronto (City) Police Services Board, [2011] O.J. No. 7, 2011 ONSC 53 (S.C.J.), affd [2012] O.J. No. 1531, 2012 ONCA 230 (C.A.), leave to appeal to S.C.C. refused [2012] S.C.C.A. No. 265, where Low J. stated, at para. 23:

Section 5(1)(a)(iv) does not import an idiosyncratic limitation period calibrated by the claimant's familiarity with or ignorance of the law. The test is an objective one. While it is possible to envisage that a new kind of right might arise that has not been hitherto protected, thus making it arguable that a civil proceeding might not be seen objectively as an appropriate means to seek to remedy, a battery causing personal injury is a classic example of the kind of wrong that is appropriate for redress by court action. A citizen is presumed to know the law of the land.

(Emphasis added)

[71] See, also, Novak v. St. Demetrius (Ukrainian Catholic) Development Corp., [2017] O.J. No. 3093, 2017 ONSC 3503 (S.C.J.), at para. 27, where Diamond J. noted that "[t]he provisions of the [Limitations Act] do not mention, directly or indirectly, a plaintiff's decision to commence a proceeding in the wrong forum as having the effect of preserving or tolling a limitation period". In Novak, the plaintiff had failed to adduce evidence in support of her obligation to rebut the statutory presumption that she knew or ought to have known a legal proceeding was the appropriate means to remedy her loss or damage.

[72] In this case, not only would the appellants be presumed to know that there might be a forum issue, they were specifically [page151] put on notice of the fact. While the evidence on the motion addressed the merits of the appellants' claims, there was no explanation of why the appellants had concluded, before they received the OMB decision, that their claim was only a claim for "injurious affection" (notwithstanding that they had been put on notice of the jurisdiction issue in the respondent's reply), or why they had not adopted the approach referred to in Har Jo of commencing a court action at the same time, if there was any doubt.

[73] Rather, the appellants' position in the court below, as on appeal, was that while they pursued the OMB proceeding, which, if successful, would have disposed of its claims, then as a matter of principle, a civil action was not "legally appropriate" under s. 5(1)(a)(iv) until such proceeding had run its course.

[74] As I have already observed, 407 ETR does not stand for the general principle that it will always be appropriate to wait until another process has run its course before commencing a civil action in respect of a claim which has otherwise been "dis-covered" under s. 5(1)(a)(i), (ii) and (iii). It is incumbent on a party asserting that it was reasonable to pursue a claim in another forum to explain why this approach was reasonable. That is what occurred, and was ultimately successful, in the 407 ETR case.

[75] While one of the principles recognized in connection with s. 5(1)(a)(iv) is the deterrence of unnecessary litigation, a plaintiff is not entitled in all cases to pursue one route, and to expect the limitation period to be tolled in respect of any other claim it may have in respect of its loss or damage. Said another way, s. 5(1)(a)(iv) does not permit a party to engage in litigation in stages for the same wrong. An example is Lilydale Cooperative Ltd. v. Meyn Canada Inc., [2019] O.J. No. 4902, 2019 ONCA 761, 439 D.L.R. (4th) 385 (C.A.), where this court considered the submission that a limitation period in respect of a third party claim in Ontario was suspended while the defendant was seeking to establish that Alberta was the correct forum for the litigation. Feldman J.A. rejected the argument that it was not legally appropriate to commence a legal proceeding while another resolution process that might resolve the matter was ongoing. She held that such an interpretation of "appropriate" was inconsistent with the purpose of the Limitations Act and could extend the limitation period well beyond the two-year threshold in an uncertain and unpredictable manner. There were also no significant savings to be achieved by not commencing the third party claim until the forum challenge was complete.

[76] At para. 26 of his reasons, the motion judge indicated that he agreed with the Municipality's submission that the law does not provide for postponing or suspending the limitation period [page152] simply because a plaintiff brought its claim in the wrong forum. He found that the appellants' counsel knew of the forum issue by January 5, 2010, at the latest, when the Municipality raised the issue in its reply to the OMB proceeding. At para. 27, however, the motion judge concluded that a reasonable person with the abilities and in the circumstances of the appellants ought to have discovered the claim on February 28, 2009, upon receipt of the expert report suggesting damage to the property was connected to the traffic on the nearby roadway.

[77] In light of his conclusion at para. 26, and taking into consideration s. 5(1)(a)(iv), the motion judge ought to have concluded that the appellants discovered their claim on January 5, 2010, when they were put on notice of the forum issue. However, that would not have saved the claim from the limitations defence. The action was commenced only in January 2018, well outside of the two-year period limitation period.

[78] Accordingly, subject to my conclusion on Issue 3 below, the appellants' civil action is largely statute-barred.

Issue 3: Is there any part of the appellants' civil action that can continue?

[79] The appellants contend that the motion judge made a palpable and overriding error when he concluded that their claim was statute-barred even on the basis of what he described as a "rolling limitation period". A "palpable and overriding error" is "an obvious error that is sufficiently significant to vitiate the challenged finding of fact": Longo, at para. 39.

[80] In order to obtain a summary dismissal of the action, the Municipality was required to establish that there was no genuine issue requiring a trial for its limitations defence. The appellants submitted that a fresh cause of action accrued each time vibrations from traffic caused damage to their property, and that, if this were true, they should be able to recover in respect of damage sustained within the two-year period before the issuance of the statement of claim (January 17, 2016-January 17, 2018). The specific issue that was put to the motion judge on this point was whether there was evidence of ongoing tortious conduct causing damage between January 17, 2016 and January 17, 2018.

[81] The motion judge addressed the issue, at para. 23 of his reasons:

The [Beniuks'] counsel submit that the vibrations on the property continue to this day. However, in June of 2013, the evidence is that the existing gravel road base was pulverized and a new granular road base and new tar and chip surface was put down. Even allowing that there was a continuing cause of action, damages would only be recoverable for the part of the loss arisen in the [page153] two year period before the plaintiffs filed their statement of claim. I do not find the mere presence of trucks continuing to drive on Mersea Road E., particularly following the resurfacing, to be evidence of additional damage sustained within the limitation period. A party claiming a continuing nuisance in the face of a limitation defence must have evidence of damage sustained within the limitation period.

(Emphasis added)

[82] While the motion judge accepted that there was evidence of trucks continuing to drive on Mersea Road East, what was missing in his view was evidence of "damage sustained within the limitation period". There was, however, evidence of continuing damage in the record before the motion judge. The Lecce Report, which was prepared for the appellants, suggested that they were sustaining additional damage on a regular basis at least until December 1, 2016 (the date of the report). The report concluded, among other things, that

[s]ome of the same sources that initially contributed to the reported stream of Mechanical Damages are still ongoing, and therefore preclude the possibility of a stable environment within which to mitigate the losses, and repair the Beniuk residence[.]

Similarly, the consequences that were associated with the suite of Mechanical Damages that were sustained by the Beniuk residence (between 2006 and 2009) and then re-introduced again (between 2009 and 2010), have not abated (because the source of the physical disruptions has continued to persist).

(Emphasis added)

[83] According to the Lecce Report, the work done by the Municipality had not fully abated the ongoing issue of vibrations, and more importantly, there was ongoing damage to the Beniuk residence. Although the Municipality relied on a competing report of its own expert, Mr. McCloskey, who suggested that after the 2013 repair of the road, vibrations from heavy truck traffic would have been minimal, this was not the basis for the motion judge's conclusion. Again, he said that "even allowing that there was a continuing cause of action, damages would only be recoverable for the part of the loss arisen in the two-year period before the plaintiffs filed their statement of claim" and that he did not find "the mere presence of trucks continuing to drive on Mersea Road E., particularly following the resurfacing to be evidence of additional damage sustained within the limitation period". The appellants relied on more than the mere presence of trucks -- the Lecce Report provided evidence of continuing problems and damage to the Beniuk residence.

[84] Counsel for the respondent fairly accepted in oral submissions that this was a strong ground of appeal, but requested that [page154] this court give clear direction that the appellants will only be able to recover in respect of damages sustained after January 17, 2016.

[85] Given the above conclusions that the RPLA does not apply, and that it was not legally appropriate to wait until after the OMB's decision to start a civil action, I am willing to give clear direction to this effect. The issue of whether the Municipality engaged in wrongful conduct resulting in damage within two years before the statement of claim was issued is a genuine issue requiring trial. In the event that the appellants are successful in their argument, they can only recover in respect of damages sustained after January 17, 2016.

Issue 4: The duty of care issue under s. 44 of the Municipal Act

[86] The final issue is whether the duty of care under s. 44 of the Municipal Act is owed to adjoining landowners in the appellants' circumstances. As noted above, this is a novel issue that has not been decided by this court. On appeal, it was not the focus of the parties' submissions and there was no engagement with the relevant jurisprudence. In these circumstances, I would decline to decide this novel issue definitively, but would provide the following brief remarks.

[87] Section 44 of the Municipal Act provides for a statutory duty of a municipality with respect to road maintenance. Subsections 44(1) and 44(2) provide a cause of action against the municipality, while subsection 44(3) sets out three defences:

44(1) The municipality that has jurisdiction over a highway or bridge shall keep it in a state of repair that is reasonable in the circumstances, including the character and location of the highway or bridge.

(2) A municipality that defaults in complying with subsection (1) is, subject to the Negligence Act, liable for all damages any person sustains because of the default.

(3) Despite subsection (2), a municipality is not liable for failing to keep a highway or bridge in a reasonable state of repair if,

(a) it did not know and could not reasonably have been expected to have known about the state of repair of the highway or bridge;

(b) it took reasonable steps to prevent the default from arising; or

(c) at the time the cause of action arose, minimum standards established under subsection (4) applied to the highway or bridge and to the alleged default and those standards have been met.

(4) The Minister of Transportation may make regulations establishing minimum standards of repair for highways and bridges or any class of them.

(Emphasis added) [page155]

[88] The appellants rely on the plain wording of s. 44(2) to argue that the statutory duty under s. 44 is owed to them as adjoining landowners. Subsection 44(2) contemplates that "any person" who sustains damage because of a municipality's failure to comply with subsection (1) can bring an action. The motion judge did not engage with the plain wording of s. 44(2) and instead relied on this court's decision in Fordham to conclude that "the statutory duty of care set out in s. 44(1) . . . is not directed to injuries suffered by adjoining landowners": para. 32. According to the motion judge, "[t]he jurisprudence and duty of care has been established with respect to the travelling public and as measured against the 'ordinary reasonable driver'": para. 32.

[89] The motion judge's reliance on Fordham was misplaced. Fordham involved a claim by a young man who was seriously injured while driving at night on a road that was alleged to have been unsafe. The concept of the "ordinary reasonable driver" was a statement of the standard of care owed to the plaintiff, who was alleged to have been driving in a dangerous manner. It was not a determination of whether the s. 44 duty was owed to persons other than the user of the road. In allowing the appeal, Laskin J.A. described the standard of care as requiring a municipality "to keep its roads, city or rural, . . . safe for reasonable drivers, not negligent ones": Fordham, at para. 49.

[90] This formulation of the standard of care can be traced back to the Supreme Court of Canada's decision in Housen (better known for its discussion of appellate review). In Housen, the court adopted [at para. 38] the following statement of a municipality's standard of care for road maintenance from Partridge v. Langenburg (Rural Municipality), 1929 CanLII 220 (SK CA), [1929] S.J. No. 16, [1929] 3 W.W.R. 555 (C.A.), per Martin J.A., at pp. 558-59 W.W.R.:

The extent of the statutory obligation placed upon municipal corporations to keep in repair the highways under their jurisdiction, has been variously stated in numerous reported cases. There is, however, a general rule which may be gathered from the decisions, and that is, that the road must be kept in such a reasonable state of repair that those requiring to use it may, exercising ordinary care, travel upon it with safety.

(Emphasis added)

[91] The standard of care from Partridge, adopted in Housen and followed in Fordham, appears, on its face, to subsume the duty of care question. However, it is trite that the standard of care and duty of care are conceptually distinct and should not be conflated. To specify that the standard of care must be measured against the behaviour of a certain class of persons, as this court did in Fordham, is not the same as saying that the duty of care is only owed to that class of persons. Moreover, the facts of Fordham [page156] turned on the standard of care. Duty of care was not at issue in the case, nor was it an issue in Housen.

[92] There is old authority on the issue of who is owed the municipality's duty of road maintenance. In Dick v. Vaughan (Township) (1917), 1917 CanLII 534 (ON CA), 39 O.L.R. 187, [1917] O.J. No. 224 (C.A.), this court considered a predecessor provision, which was substantially similar to s. 44 of the 2001 Municipal Act. The respondent had claimed damages for the economic loss caused when he had to use an alternate route for his business because a bridge was not strong enough to support the weight of his traction engine and threshing machine. The court stated that the statutory duty of care was owed to the "travelling public and to no one else" (at p. 191 O.L.R.) and that it only applies to "what may be in a general way described as accident cases" (at pp. 197-98 O.L.R.). The court did, however, recognize that in previous cases like Strang v. Arran (Township) (1913), 1913 CanLII 608 (ON CA), 28 O.L.R. 106, [1913] O.J. No. 39 (C.A.) and Cummings v. Dundas (Town) (1907), 13 O.L.R. 384, [1907] O.J. No. 99 (Div. Ct.), leave to appeal refused, 1907 CarswellOnt 627 (C.A.), adjoining landowners were owed the duty to keep roads in a reasonable state of repair when access to their property was at issue. In other words, these were cases where liability under the statutory provision was found to extend to persons beyond the users of the road. Ultimately, in Dick, the court allowed the appeal and dismissed the claim on the basis that the loss complained of was not "damages" sustained by the respondent by reason of the "default" of the appellants, within the meaning of the enactment, and that, if it were, the damages were too remote: p. 197 O.L.R.

[93] Dick was cited as authority that the statutory duty was owed only to users of the roadway in McPhee v. Plympton (Township) (1987), 1987 CanLII 4223 (ON SC), 61 O.R. (2d) 508, [1987] O.J. No. 1623 (Dist. Ct.), where the court dismissed a claim for damage to an adjoining property resulting from drainage of surface water from a roadway. By contrast, in Schraeder v. Grattan (Township), 1945 CanLII 81 (ON SC), [1945] O.R. 657, [1945] O.J. No. 537 (H.C.J.), where the claim was by a landowner for the failure to complete a road constituted by dedication and acceptance, Dick was expressly not followed in favour of the Strang line of cases.

[94] In Ouellette v. Hearst (Town) (2004), 2004 CanLII 36122 (ON CA), 70 O.R. (3d) 204, [2004] O.J. No. 1120 (C.A.), this court considered a case where a utility pole fell and struck a vehicle on a roadway. The municipality argued that the negligence claim was really a claim under former s. 284(1) of the Municipal Act to keep the highway in a reasonable state of repair, and subject to a three-month limitation period that had expired. The court noted that the label attached to the cause of action by the plaintiff was not determinative, and [page157] that the court would have to determine whether the negligence in question was in fact a breach of a duty imposed by the Municipal Act: Ouellette, at para. 22. After noting that the jurisprudence respecting the scope of a duty of a municipal corporation to keep its highways in repair is extensive and that the scope of the duty has been defined in broad terms (paras. 25 and 26), the court concluded that the specific factual circumstances did not fit within the ambit of non-repair of a highway (at para. 27). Moreover, the court noted, at paras. 29 and 30:

Most of the cited cases are fairly old. They were decided at a time when there was little scope in the common law for actions against municipalities for keeping their highways in a reasonable state of repair. Accordingly, courts tended to interpret the duty in s. 284(1) in a broad fashion. As explained by Carthy J.A. in [Mero v. Waterloo (Regional Municipality) (1992), 70 O.R. (3d) 102 (C.A.)] at p. 106:

What we see historically is that the law in Ontario has developed on the assumption that there is no common law liability upon a municipality respecting maintenance of highways except for nuisance and, as the natural evolution of what might have been termed a very restrictive statutory cause of action in s. 284(1) has progressed, the courts have been increasingly liberal in the interpretation of what constitutes non-repair of a highway.

There is no longer a need to stretch the wording of s. 284(1) to ground what are, in reality, proposed negligence actions against municipalities. That is because in Just v. British Columbia, 1989 CanLII 16 (SCC), [1989] 2 S.C.R. 1228[, 64 D.L.R. (4th) 689], the Supreme Court of Canada held that the traditional tort law duty of care could apply to a government agency respecting the maintenance of highways where there was no express statutory duty imposed. In the wake of Just, s. 284(1) need not be interpreted to cover a situation that amounts to an extension of the statutory duty to repair; rather, an action against a municipality in this context can proceed as a negligence action, as pleaded in this case.

[95] In my view, while there may well be an issue as to whether the appellants can rely here on s. 44 of the Municipal Act, the broader issue is whether the appellants have a claim in negligence against the respondent in respect of their construction of and subsequent conduct in relation to Mersea Road East. Although the OMB decision referred to a possible claim by the appellants under s. 44 of the Municipal Act, and although the appellants pleaded this provision in their statement of claim in the civil action, it is not clear whether their claim for negligence is limited to a claim for breach of the statutory duty to repair under s. 44, or whether it extends more broadly. Whether their negligence claim is only under s. 44, and whether that section is available to them, are matters that should be determined on a full record. [page158]

Conclusion and Disposition

[96] For these reasons, I would allow the appeal in part. There is a genuine issue requiring a trial as to whether the appellants have a claim in respect of damage sustained within the two years prior to the issuance of their statement of claim in the civil action, including under s. 44 of the Municipal Act. If the appellants are successful in their action, they will be limited to recovery for damages sustained after January 17, 2016.

[97] To reflect the mixed success on the appeal, I would award costs of the appeal to the respondent in the sum of $6,500, inclusive of disbursements and HST, and I would reduce the respondent's costs in the court below to $10,000, inclusive.

Appeal allowed in part.

End of Document