COURT OF APPEAL FOR ONTARIO
Pepall, Paciocco and Sossin JJ.A.
BETWEEN
Richard Kenneth Wyatt* and Kathleen Mary Wyatt
Plaintiffs (Appellant*)
and
Sandra Carmela Mirabelli, Spencer Armstrong Ross, Albert Munro Thom*, Beverly Ann Thom* and Corporation of Mississippi Mills
Defendants (Respondents*)
Peter S. Mirsky, for the appellant
Stephen Cavanagh, for the respondents
Heard: February 14, 2025
On appeal from the order of Justice Brian W. Abrams of the Superior Court of Justice, dated June 13, 2024.
Introduction
1The appellant, Richard Kenneth Wyatt, appeals from an order dismissing his action pursuant to r. 21.01(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.1 In the absence of any statement of defence, the motion judge struck out the amended statement of claim and dismissed the action as being statute barred pursuant to the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. as against the respondents, Albert Munro Thom and Beverly Ann Thom.
2For the following reasons, I would allow the appeal.
Background Facts
3The statement of claim was issued on November 7, 2022, and amended on March 20, 2023. The appellant’s allegations in the underlying action revolve around water infiltrating onto his land from neighbouring properties.
4“Property #1” and “Property #2”, as they are described in the amended statement of claim, and which are located in Carleton Place, are adjacent to one another. The appellant is the owner of Property #1. The respondents leased part of Property #1 from the appellant and his late wife and part of Property #2 from Sandra Carmella Mirabelli and Spencer Armstrong Ross.2
5The appellant alleged in the amended statement of claim that in the spring of 2016, Albert Thom, one of the respondents, had approached the appellant “to request permission to very slightly grade a path (not a trench) from [P]roperty #2 into [P]roperty #1 in a line to clear some surface water from [P]roperty #2.” The appellant consented as Albert Thom had represented that “the grading was minor and very slight and of no drainage significance”. Allegedly without the appellant’s knowledge, the respondents then excavated a trench and damaged an existing tile drainage system. As a result of the respondents’ actions, drainage water drained from Property #2 and flooded Property #1.
6The appellant pleaded that in and about 2016, he and his late wife discovered the damage and trench approximately two months after they gave their limited consent to the respondents. They gave the respondents notice to repair the work and restore the drainage system, but the respondents allegedly refused. The appellants and his late wife then gave notice that the respondents’ lease for part of Property #1 was terminated.
7The appellant also pleaded that in December of 2020, the appellant discovered unusual and heavy water flows coming onto Property #1 from an installed drainage ditch and three other locations indicated on an attached sketch as “W1”, “W2”, and “W3”. These three locations are shown on the sketch between Properties #1 and #2.
8Another piece of land (“Property #3”) lies across the road from Properties #1 and #2. The respondents own Property #3. A culvert runs under the road. The appellant pleaded that the respondents found the culvert and “opened it several years ago to drain their [P]roperty #3”.
9The appellant pleaded that in April of 2022, the appellants discovered that unusual and heavy water flows from Property #3 were entering Property #1 through the culvert. He pleaded that the respondents “had engineered water drainage into the unused culvert and the [appellant] finally understood this by researching the area on Google in spring of 2022.”
10The appellant claims damages for “trespass and damage to property by unlawfully directing drainage water” onto Property #1 from Properties #2, #3 and #4. “Property #4” is a smaller piece of land, which is owned by the respondents but leased to a third party, at the corner of Property #2 and adjacent to Property #1.
11On receipt of the statement of claim, the respondents did not serve and file a statement of defence. Rather, relying on the Limitations Act, 2002, they brought a motion for the determination of a question of law pursuant to r. 21.01(1)(a) of the Rules of Civil Procedure. The other defendants did not participate in the motion.
Motion Judge’s Decision
12The motion judge granted the motion. He determined that the appellant had stated in their pleading that they discovered the damage and trench approximately two months after they gave the respondents their limited consent to grade a path onto Property #1 in the spring of 2016. As the amended statement of claim was issued on November 7, 2022, the two-year limitation period had passed. He also rejected any basis for a continuing cause of action. He accordingly struck the action as against the respondents without leave to amend.
13The appellant appeals from that dismissal.
Analysis
14The standard of review on this appeal is correctness: Beaudoin Estate v. Campbellford Memorial Hospital, 2021 ONCA 57, 154 O.R. (3d) 587, at para. 15. The central issue on appeal is whether the motion judge correctly decided as a question of law under r. 21.01(1)(a) that the facts pleaded in the amended statement of claim are statute barred by the Limitations Act, 2002.
15Dealing first with the Limitations Act, 2002, in this case, the applicable limitation period is two years: s. 4. That section states that a proceeding may not be commenced more than two years after the claim is discovered, and s. 1 defines a “claim” as:
a claim to remedy an injury, loss or damage that occurred as a result of an act or omission.
16Under s. 5(1)(a), a claim is discovered when the plaintiff first knew (or reasonably ought to have known): (i) of the occurrence of the injury, loss or damage; (ii) that it was caused by or contributed to by an act or omission; (iii) that the act or omission was by the defendant; and (iv) based on the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek a remedy.
17Turning to r. 21.01(1)(a) of the Rules of Civil Procedure, it states:
(1) A party may move before a judge,
(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs;
and the judge may make an order or grant judgment accordingly.
18Rule 21.01(2) provides that no evidence is admissible on such a motion except with leave of a judge or on consent of the parties.
19Generally, a claim should not be struck out as statute barred as a result of a limitation period pursuant to r. 21.01(1)(a). Discoverability issues, which are engaged by a limitation period defence, are factual and r. 21.01(1)(a) is intended for legal issues only where the facts are undisputed: Kaynes v. BP p.l.c., 2021 ONCA 36, 456 D.L.R. (4th) 247, at para. 81. As stated by Feldman J.A. in Kaynes:
It would therefore be unfair to a plaintiff where the facts are not admitted, to use this rule, which does not allow evidence to be filed except with leave or on consent. But where a plaintiff’s pleadings establish when the plaintiff discovered the claim, so that the issue is undisputed, then the courts have allowed r. 21.01(1)(a) to be used as an efficient method of striking out claims that have no chance of success, in accordance with the principle approved in Knight v. Imperial Tobacco Canada Ltd., 2011 SCC 42, 2011 SCC42, [2011] 3 S.C.R. 45, at para. 19.
20In Beaudoin Estate, at para. 14, Jamal J.A. (as he then was) outlined the main principles applicable to a r. 21.01(1)(a) motion to determine a question of law. In brief: (i) the test is whether the determination of the issue is plain and obvious; (ii) the pleaded facts in the statement of claim are assumed to be true unless patently ridiculous or manifestly incapable of proof; and (iii) the statement of claim should be read as generously as possible. If the claim has some chance of success, it should be permitted to proceed.
21In that decision, Jamal J.A. also noted at para. 31, that in a long line of cases, this court has discouraged using r. 21.01(1)(a) to determine limitation issues, except in very narrow circumstances where pleadings are closed and the facts relevant to the limitation period are undisputed. For instance, both of this court’s decisions in Salewski v. Lalonde, 2017 ONCA 515, 137 O.R. (3d) 750, at para. 45, and Clark v. Ontario (Attorney General), 2019 ONCA 311, 56 C.C.L.T. (4th) 1, at para. 48, rev’d on other grounds, 2021 SCC 18, [2021] 1 S.C.R. 607, have stated that pleadings should be closed before bringing a r. 21.01(1)(a) motion. See also: Toussaint v. Canada (Attorney General), 2023 ONCA 117, at para. 11. That said, as illustrated by the Kaynes decision, there may be exceptions to this requirement but only where the limitation issue is undisputed. This will be unusual as typically one would not expect counsel to advance a claim that is undisputably acknowledged to be statute barred.
22Turning to the application of these principles to this appeal, to start, the appellant now concedes that the discovery of water infiltration at W2 in 2016 was beyond the limitation period. However, he takes issue with the motion judge’s determination with respect to the December 2020 discovery in the case of W1 and W3 and the April 2022 discovery in the case of W4. He maintains that the motion judge did not distinguish between W1, W2, W3, and W4 and incorrectly treated these instances as one event.
23The respondents support the motion judge’s determination and submit that the pleading in this case falls squarely within the parameters of the Kaynes decision. They argue that, even though damage was discovered at four different locations on the appellant’s property, the amended statement of claim alleges only one tortious act - the trench that the appellant and his late wife discovered approximately two months after they gave consent in the spring of 2016, and which was the source of the flooding.
24The motion judge recognized that this court has discouraged r. 21.01 (1)(a) motions based on limitation defences before pleadings have closed. However, he did not consider that the amended statement of claim was to be read as generously as possible, accounting for deficiencies in drafting: Beaudoin Estate, at para. 14. Consistent with this omission, he treated the respondents’ alleged conduct relating to the open trench and the drainage ditch as being interchangeable and disregarded the appellant’s pleading relating to the culvert.
25On a generous review of the amended statement of claim, it is not plain and obvious that the appellant simply pleaded one instance of actionable conduct that would be considered statute barred.
In 2016, the respondents excavated an open trench that caused flooding two months later. This is W2 which the appellant now concedes is statute barred.
In December 2020, the appellant and his wife discovered unusual and heavy water flows now coming onto Property #1 after the respondents “installed [a] drainage ditch”. It is not plain and obvious that the installation of the drainage ditch represents the same act as the “excavat[ion] of the open trench”.
In April 2022, the appellant and his wife discovered unusual and heavy water flows from W3 onto their Property #1 after the respondents “engineered water drainage into the unused culvert”. Here again, it is not plain and obvious that this is a separate claim from any of the others.
26I acknowledge that the pleading in this case is not ideal. That said, this appeal highlights the desirability of waiting to bring such a motion after pleadings are closed and the parties and the court have the benefit of a statement of defence and the plaintiff’s reply. Alternatively, a r. 20 motion may be appropriate after pleadings are exchanged: Baradaran v. Alexanian, 2016 ONCA 533, 3 C.P.C. (8th) 131, at para. 14; Crombie Property Holdings Limited v. McColl-Frontenac Inc. (Texaco Canada Limited), 2017 ONCA 16, 406 D.L.R. (4th) 252, at para. 33.
Disposition
27For these reasons, I would allow the appeal. The parties agreed on costs. Accordingly, the respondents are to pay the appellant’s costs of the appeal on a partial indemnity scale fixed in the amount of $10,000 inclusive of disbursements and applicable tax. The costs below are reversed and the respondents are to pay the appellant’s costs on a partial indemnity scale fixed in the amount of $5,000 inclusive of disbursements and applicable tax.
Released: March 10, 2025 “S.E.P.”
“S.E. Pepall J.A.”
“I agree. David M. Paciocco J.A.”
“I agree. Sossin J.A.”
Footnotes
- The appellant’s late spouse, Kathleen Mary Wyatt, was a co-plaintiff but died on December 16, 2022. As they apparently held the property in issue (Property #1) in joint tenancy, it has now vested in the appellant. Under the circumstances, the appellant did not seek an order to continue. The respondents take no issue with this.
- Sandra Carmella Mirabelli and Spencer Armstrong Ross are co-defendants in the action but did not participate in the motion or the appeal.
