CITATION: Scaduto v. City of Toronto, Cucu, 2014 ONSC 5214
DIVISIONAL COURT FILE NO.: 567/13
DATE: 20140909
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
MARIA SCADUTO
Appellant
(Plaintiff)
– and –
CITY OF TORONTO, CRISTINA CUCU and LIVIU CUCU
Respondents
(Defendants)
Ryan Manilla, for the Appellant
Georgia E. Tanner, for the Respondent, City of Toronto
Jason W. N. Gottlieb, for the Respondents, Cucu
HEARD at Toronto: September 9, 2014
Corrected decision
The text of the original judgment was corrected on November 4, 2014 and the explanation of the correction is appended.
C. HORKINS J. (orally)
Overview
[1] The appellant’s claim was issued on August 9, 2013. In her claim she seeks damages for “pain and suffering as a result of improper and negligent issuance of a building permit” for property located at 2 Romar Crescent in Toronto. This property is owned by the respondent Liviu Cucu (the “Cucu property”). The appellant resides at the adjacent property located at 4 Romar Crescent (the appellant’s property).
[2] On September 18, 2013 Judge Thomson of the Small Claims Court directed that the appellant’s claim proceed to trial to determine if the “claim was issued too late”.
[3] The issue of the limitation period and whether the claim should be struck proceeded to trial on November 25 2013 before Deputy Judge C. Ashby. Judge Ashby had before him affidavit evidence from the City of Toronto and the appellant. As well, he had the appellant’s Document Brief.
[4] The trial judge concluded that the appellant’s claim was barred by section 4 of the Limitations Act. The claim was issued after the second anniversary of the date on which the claim was discovered. As a result, the claim was dismissed.
[5] The appellant appeals from the decision of Deputy Judge C. Ashby. In her Notice of Appeal she states that the trial judge “erred in law by determining that the plaintiff’s claim was statute barred.”
THE CLAIM
[6] The claim seeks damages for “pain and suffering as a result of improper and negligent issuance of a building permit”. The Claim does not specify the date of the building permit. The evidence at trial confirmed that it was issued on December 30, 2010.
[7] The claim alleges that the garage on the Cucu property was being converted into a food take out premise. The appellant and her family observed construction activity in the garage in June 2010. The appellant was upset with the conversion of this garage into a “pizza retail use”. At the request of his mother, Giuliano Scaduto reported the garage conversion to the City of Toronto.
[8] The appellant alleges that the respondent Cucu misled the City in documents that were submitted to the City. The nature of this alleged misleading information is unclear in the Claim. The Claim states that the building consultant for Cucu “misled the City during their application submission that the ‘Existing Use’ was a retail (Gift Store).” Further the appellant alleges that the Cucu property is zoned for “commercial” and the use is a permitted use, but the conversion of this structure that was not intended or built for that purpose is a direct contravention of the “Building and Fire Code”. It is alleged that the City had a duty to “revoke the issued permits”.
THE STANDARD OF REVIEW
[9] This is an appeal from a final order of the Small Claims Court. The standard of review on appeal is correctness with respect to questions of law. On a question of fact, the standard is palpable and overriding error. With respect to the application of the correct legal principles to the evidence, the standard is palpable and overriding error. (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at paras. 8 and 10).
BACKGROUND FACTS
[10] All of the facts set out below were before the trial judge either in an affidavit or as part of the appellant’s Document Brief.
[11] On December 29, 2009, the City received a complaint from Sam Scaduto regarding the conversion of a building on the Cucu property into a restaurant.
[12] In January, 2010, the City Municipal Licensing and Standards Officer, Vincenzo Salatino attended at the Cucu property. He met with Sam Scaduto in response to the complaint and confirmed that the restaurant business located on the Cucu property was being run pursuant to a valid business license.
[13] On June 14 2010, the City received another complaint from the Scaduto residence. Giuliano Scaduto complained that an illegal business was being carried on at the Cucu property and that excessive noise was being generated by an air conditioner.
[14] On June 21 2010, the City Municipal Licensing and Standards Officer, Miriam Anania attended at the Cucu property in response to the complaint. She confirmed that the business was being carried out pursuant to a valid business license and found no excessive noise from the air conditioner on the Cucu property.
[15] On December 30, 2010, the City issued Building Permit No. 233818 BLD 00 BA (building permit) for Interior Alterations on the Cucu property in accordance with s. 8 of the Building Code. The building permit was posted conspicuously on the Cucu property.
[16] On May 3, 2013, the appellant’s son, Giuliano Scaduto met with Di Marco Legal Services to discuss the “ongoing problem with the respondent Cucuc who converted his garage into a retail pizza store. Giuliano Scaduto was told that “in order to proceed with any claim” he first had to obtain “supporting documentation that the residential garage was converted without proper process.”
[17] On May 10, 2013 the City received an Access to General Records Request from Giuliano Scaduto. He requested “completed information on 2 Romar Crescent”. The City responded to this Freedom of Information Request on June 10 and 20 2013, 40 days after the Freedom of Information Request was submitted. The City provided over 50 pages of municipal records regarding the business being operated on the Cucu property. This Freedom of Information file was included in the appellant’s Document Brief that she gave to the Small Claims Court Judge.
[18] Giuliano Scaduto states, that as a result of the documents being released, some misleading information referred to in the Claim was revealed. He also states that although there had been numerous complaints filed about the Cucu garage and numerous site inspections by the City, he said they did not have any information about how the respondent Cucu “obtained their permits” until the release of information under the FOI.
[19] On August 9, 2013, the applicant issued this Claim seeking damages for “pain and suffering as a result of improper and negligent issuance of a building permit” for the Cucu property.
THE TRIAL DECISION
[20] The trial judge found that it was “clear that the permit was issued in December 2010 and the plaintiff and her family were complaining about the operation of the premises both before and after the premises were operating as a takeout food establishment”.
[21] The trial judge found that “any damage that they suffered would have been so suffered back in 2010”.
[22] The trial judge also stated that s. 5(2) of the Limitations Act creates a presumption which he found had “not been proven to the contrary”.
[23] In regard to the FOI requests and documents released, the trial judge stated as follows:
The plaintiff takes the position that she did not know a claim existed until FOI requests were made and documents received in June 2013. However the affidavit of Ms. Anania reveals complaints were made by the plaintiff and her family as early as June 2010 and that at that time the building was in compliance. The building permit only applied to the interior of the building and not to the operation of the premises.
MOTION TO FILE NEW EVIDENCE
[24] The appellant brings a motion to file additional fresh evidence on this appeal. Two affidavits are filed in support of this motion: one from the appellant and one from her son Giuliano Scaduto.
[25] The affidavit of the appellant’s son simply says that he has translated his mother’s affidavit and read it to her in Italian because she does not “understand or read English very well.” Upon translation he states that his mother understood what is in her affidavit before she swore that the statements were true.
[26] The relevant paragraphs in the appellant’s new affidavit state as follows:
• The trial judge dismissed her claim “because it appeared to him that I had not started my action within the required 2 years after I knew or ought to have known that I had reason to commence proceedings”
• Unfortunately all the trial judge had was my Claim.
• The Claim was improperly drafted by a paralegal who made it appear that I had knowledge of the reason for a claim in November 2010
• I have just been made aware that the paralegal failed to allege that my search of the City records did not take place until February 2013 and that is when I first learned that the respondent Cucu provided the City of Toronto with false information in their November application.
• It was not until February 2013 that I realized that the City “failed to properly investigate the basis of the Cucu’s building permit application.”
• I have just been made aware that even after receiving the Defence of the City that raised the limitation period, our paralegal did not amend the Claim to put in the correct information that I first became aware of the “problem with the construction at 2 Romar Cres. until February 2013.”
• The appellant attaches a letter dated June 20, 2013 to her affidavit from the City to Giuliano Scaduto. She says that this letter “corroborates my allegation that I was not aware of the possibility of suing until 2013.”
• The appellant letter also attaches a copy of the Cucu Business Licence Application dated December 29, 2009. In her affidavit the appellant states that this application warns Cucu that “a false statement would lead to the refusal of the license”.
[27] Pursuant to s. 134(4)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, the Divisional Court, on an appeal, may receive fresh evidence or new evidence. Pursuant to rule 61.16(2), a motion to receive further evidence is to be heard by the panel hearing the appeal.
[28] The test for receiving fresh evidence is set out in R. v. Palmer, [1980] 1 S.C.R. 759, 1979 8 and Sengmueller v. Sengmueller (1994), 17 O.R. (3d) 208, 1994 8711 (C.A.). The court will consider the following criteria on such a motion (as set out in Sengmueller and recently applied in Centre City Auto Sales Inc. v. Kalsatos, 2013 ONCA 373 at para. 3):
(1) Is the evidence credible?
(2) Could the evidence have been obtained prior to trial through the exercise of reasonable diligence?
(3) If the evidence were admitted, would it likely be conclusive of an issue in the appeal?
[29] The test for receiving fresh evidence has not been met by the appellant for a variety of reasons:
(1) The appellant’s reference to material from the FOI file is not “fresh” evidence. It was part of the appellant’s Document Brief. It was filed on the motion before Justice Ashby.
(2) Complaints about how the paralegal represented her are not relevant or conclusive of the limitation period issue. What the appellant knew in and around 2010, before and after the building permit was issued, do not change and these facts formed the basis for the Small Claims Court Judge’s reasons.
(3) The appellant incorrectly states in her affidavit that all the judge had was her claim. Clearly, this is not accurate.
[30] For these reasons, the motion to file fresh evidence is denied. None of the evidence would be conclusive of the issue of the limitation period.
THE APPEAL
[31] The Claim alleges damages as a result of a building permit issued on December 30, 2010.
[32] The trial judge correctly stated the law as it relates to limitation periods and the issue of whether a claim is barred.
[33] A two year limitation period applies pursuant to s. 4 of the Limitations Act. Section 4 states as follows:
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.
[34] The trial judge correctly considered the application of s. 5(2) of the Limitations Act that states as follows:
- (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).
(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.
[35] The Claim was issued on August 9, 2013. This was more than two years after the issuance of the building permit that is the subject of the appellant’s action. The building permit was issued on December 30, 2010.
[36] The trial judge rejected the appellant’s position that she did not know a claim existed until she made the FOI request and received the documents. He applied the facts to the law that was correctly stated. Those facts supported the judge’s finding that the claim was issued more than two years after the claim was discovered. The appellant on this appeal has failed to show that the trial judge made a palpable and overriding error.
[37] On the hearing of this appeal, counsel for the appellant also argued that the Judge followed an “improper procedure.” This is not part of the Notice of Appeal nor is it addressed in the factum. Nevertheless I allowed submissions. The appellant raises three arguments as follows:
[38] At the beginning of the limitation period motion, the judge was handed a copy of the appellant’s affidavit and her Document Brief. Today, counsel says that the Judge did not have time to fully review this material. However, the paralegal who represented the appellant never requested an adjournment and this material could have been filed in advance. Nevertheless, it is clear from the record that this material was filed at the outset, was reviewed off and on throughout the motion. The appellant’s representative had full opportunity to draw to the Court’s attention any part of this evidence, and to highlight specific documents or specific sections of his client’s affidavit. Furthermore, the Judge recessed after the hearing of the matter before he re-attended in Court and delivered his decision. He had an opportunity to consider all of the evidence. I see no reason, therefore, to criticize this process.
[39] At the outset of the hearing, after the appellant provided the Judge with her affidavit and Document Brief, the Judge stated as follows:
“Okay, so Mr. Di Marco, you are going to try and persuade me that this claim is somehow not hopelessly out of time.”
[40] Today, counsel for the appellant says that by making this statement, the Judge had predetermined the issue of the limitation period. I disagree. From the start, there was never any dispute that the building permit was issued on December 30, 2010 and that the claim had been issued more than two years later on August 9, 2013. On its face, this claim was out of time by several months.
[41] The burden was on the appellant to prove under s. 5(2) that she had not discovered the lost injury and the damages alleged within the two year period.
[42] When the Judge made this statement, he was stating the obvious and simply describing and framing the issue. This was not a predetermination of the issue. He went on to review the evidence, receive submissions and made a decision. This second submission is rejected.
[43] At the hearing Mr. Cucu was self-represented. At page 5 of the transcript after submissions were made by the appellant, and after the City had made its submissions, the following question was asked by the Judge to Mr. Cucu:
The Court: So, Mr. Cucu, you know I’m only here to deal with whether or not this claim is out of time. I am not here to decide that you know who is right and who is wrong. So, do you want to say anything about that?
Mr. Cucu: Yeah, yeah, we applied for the permits for the City of Toronto for the building permit was issued on December 30, 2010 and we had it posted all over the windows and that’s when we stated.
The Court: When did you open up?
Mr. Cucu: I am sorry?
The Court: When did you open up?
Mr. Cucu: When did we open?
The Court: Yes.
Mr. Cucu: I think it was …
The Court: You got the permit in late December 2010, presumably within a few months of that.
Mr. Cucu: Yeah. Yeah. Probably. That date don’t make sense. I think it was June.
The Court: June of 2011?
Mr. Cucu: Yeah. Yeah, I think it was June.
The Court: Ok. Is there anything else?
Mr. Cucu: No.
The Court: Okay. Mr. Di Marco, have you got anything you want to say in reply to that?
Mr. Di Marco: There was well again. It’s the information it was that we got. We did not have access to that information. We had applied for the access information in June. Actually in May. Then there was the secondary application.
[44] The point is, that today, for the first time, counsel for the appellant takes the position that the exchange between the Court and Mr. Cucu was Mr. Cucu giving evidence, not under oath and that there was no opportunity to cross examine. Furthermore, counsel says that the appellant was not given the same opportunity to provide unsworn evidence.
[45] I have reviewed this transcript and for the most part, Mr. Cucu is simply referring to evidence that was part of the record before the Court. He was referring to this evidence just as his counsel would if he had counsel on the motion.
[46] He said essentially three things:
(1) That the building permit was issued on December 30, 2010.
(2) That the building permit was posted all over the windows.
(3) That he opened the pizza restaurant in June of 2011.
[47] The fact of the building permit, its date of issue and the obligation to post in a conspicuous place was all part of the evidence before the Judge.
[48] Mr. Cucu’s statement to the Judge that it was posted on the windows may have been new but is frankly irrelevant because the evidence shows that the applicant knew that the pizza restaurant was being operated and that construction was underway and she had complained about this to her son.
[49] In summary, I find that due process was followed for all of the above reasons and I reject the new ground of appeal that there was some procedural unfairness or as he has described an improper procedure.
[50] For all of the above reasons, the appeal is dismissed.
COSTS
[51] Costs are payable by the appellant to the respondents as follows: payable to the City of Toronto costs fixed at $1,000; payable to the respondent Cristina Cucu and Liviu Cucu fixed at $750. And by way of explanation, clearly the City has been the primary participant in this appeal and I appreciate your late participation, I don’t mean to minimize it but I think in fairness, the City has shouldered the large burden of this appeal.
C. HORKINS J.
Date of Reasons for Judgment: September 9, 2014
Date of Release: September 12, 2014
Date of Correction: November 4, 2014
Correction explanation of November 4, 2014
In Para [1]: “The appellant’s claim was issued on Aug 14, 2013.” - The date of “August 14, 2013” was replaced by “August 9, 2013”.
In para. [35]: “The building permit was issued on December 30, 2012.” The date of “December 30, 2012” was replaced by “December 30, 2010”.
In para. [40]: “From the start, there was never any dispute that the building permit was issued on December 30, 2010 and that the claim had been issued more than two years later on August 14, 2013.” The date of “August 14, 2013” was replaced by “August 9, 2013”.
CITATION: Scaduto v. City of Toronto, Cucu, 2014 ONSC 5214
DIVISIONAL COURT FILE NO.: 567/13
DATE: 20140909
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
C. HORKINS J.
BETWEEN:
MARIA SCADUTO
Appellant
(Plaintiff)
– and –
CITY OF TORONTO, CRISTINA CUCU and LIVIU CUCU
Respondents
(Defendants)
ORAL REASONS FOR JUDGMENT
C. HORKINS J.
Date of Reasons for Judgment: September 9, 2014
Date of Release: September 12, 2014
Date of Correction: November 4, 2014