Court of Appeal for Ontario

Date: 2018-01-05 Docket: C63834

Judges: Doherty, Benotto and Huscroft JJ.A.

Between

Surace Persad Ramadhin Plaintiff/Respondent

and

New Venture Group Inc., Bakshish Mand, also known as Bob Mand and Homelife Miracle Realty Ltd. Defendant ("New Venture") and Defendant/Appellant ("Mand")

Counsel

Allan D. Powell and Anikah Ahmad, for the appellant Bakshish Mand

Daniel Zacks and Travis Walker, for the respondent

Heard: December 22, 2017

On appeal from: the order of Justice Jasmin Akbarali of the Superior Court of Justice, dated May 1, 2017.

Appeal Book Endorsement

[1] The appellant is a realtor who sold the respondent's property by way of power of sale. The respondent sued him for improvident sale and negligence. The issue is when the agreed upon two year limitation period starts to run:

• at the time the Agreement of Purchase and Sale (APS) was entered into; or
• at the time of closing.

[2] The appellant moved for summary judgment alleging that because the APS was signed outside the limitation period, the case should be dismissed. The motion judge dismissed the motion on the basis that the limitation period started to run when the sale closed.

[3] The appellant submits that the pleadings allege negligence for actions predating the APS namely obtaining defective appraisals and negligent marketing. These facts, it is alleged were known at the time of the APS.

[4] The motion judge found as fact that no damage occurred prior to closing.

[5] While the facts giving rise to negligence may have arisen before the APS was signed, the damage did not accrue until closing. It is at that point that the limitation period began to run. We agree with the conclusion of the motion judge when – at paragraph 19 – she said:

Even if one assumes Mr. Mand breached a duty he owed to Mr. Ramadhin by the time the agreement of purchase and sale was entered into, until the sale of the property closed, Mr. Ramadhin suffered no damage. Damage is an essential element of the tort of negligence. Neither cause of action accrued until title was transferred.

[6] The appellant raises for the first time on appeal an attempt to bring himself within the City of Hamilton case by proposing an analogy to slander of title. There was no evidentiary base for this proposition and we reject it.

[7] The appeal is therefore dismissed with costs to the respondent fixed in the agreed amount of $9,000 inclusive of disbursements and HST.