Court File and Parties

COURT FILE NO.: 437/15 DATE: 2018 10 11 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MONIKA IRPS-BLEEKER, Plaintiff AND: COR VAN GAALEN, REALTY EXECUTIVES PLATINUM LIMITED, ANDREW WILDEBOER, BILL WILDEBOER, CHRIS VAN BERKEL, ROYAL LEPAGE RCR REALTY, WERNER RITGEN, FRED LOBB, RICK LOBB and ROYAL LEPAGE HEARTLAND REALTY BROKERAGE, Defendants

BEFORE: Lemon J.

COUNSEL: O. Niedzviecki, Counsel for the Plaintiff A. Gibson, Counsel for the Defendants Cor Van Gaalen, Realty Executives Platinum Limited, Andrew Wildeboer, Bill Wildeboer, Chris Van Berkel and Royal LePage RCR Realty A. Powell, Counsel for the Defendants Werner Ritgen, Fred Lobb, Rick Lobb and Royal LePage Heartland Realty Brokerage

HEARD: September 4, 2018

Endorsement

The issue

[1] The two sets of Defendants move to have this action summarily dismissed.

[2] The issue is whether the limitation period began to run as of May 31, 2008, or March 18, 2015. The Defendants argue that the correct date is May 31, 2008, (or at least January 9, 2009) and the action should be dismissed. The Plaintiff submits that it is March 18, 2015, and the action should proceed.

[3] Ms. Irps-Bleeker claims damages for $1.5 million for negligence and breach of contract and unspecified special damages for alleged acts or omissions arising out of an agreement for purchase and sale of her residence dated May 31, 2008. She commenced this action on June 12, 2015 by way of a Notice of Action and a Statement of Claim issued on July 10, 2015. The Defendants submit that Ms. Irps-Bleeker knew of the claim on May 31, 2008, or ought to have known of the claim in the subsequent two years.

[4] Ms. Irps-Bleeker has agreed that some of the allegations set out in the Claim are statute-barred pursuant to the discoverability principle in s. 5 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. The only remaining issue is whether the claim for negligence against the Defendants regarding a right of first refusal is statute-barred pursuant to the same provision, s. 5 of the Limitations Act.

Background

[5] Ms. Irps-Bleeker and her then-husband, Simon Bleeker, owned a property known municipally as 38630 Belfast Road, RR #3 Wingham, Ontario. Their marriage foundered and litigation ensued.

[6] On April 30, 2008, Mrs. Irps-Bleeker and Mr. Bleeker were ordered to list Belfast Road for sale as part of a court order in their divorce proceedings. That order also stated that the parties had a right of first refusal and that Belfast Road was to be listed by the Defendants Cor Van Gaalen and Werner Ritgen.

[7] Mr. Van Gaalen (now deceased) was a realtor affiliated as an independent contractor with the Defendant, Royal LePage RCR Realty, and Mr. Ritgen was a realtor affiliated with the Defendant, Royal LePage Heartland Realty. They listed Belfast Road for sale through their respective brokerages.

[8] Realty Executives Platinum Limited was the real estate brokerage that Mr. Van Gaalen was affiliated with as of February 2015. Platinum denies that it had any involvement in the 2008 transaction.

[9] Andrew Wildeboer is the Broker of Record of Royal LePage RCR Realty. Bill Wildeboer is the broker/owner of Royal LePage RCR Realty. Chris Van Berkel is a former manager of Royal LePage RCR Realty.

[10] Fred Lobb was the owner/broker of Royal LePage Heartland Realty. Rick Lobb was a sales representative and co-manager of Royal LePage Heartland Realty.

[11] The listing agreement was signed by Ms. Irps-Bleeker on May 2, 2008.

[12] On May 30, 2008, Ms. Irps-Bleeker received an offer from Groenberg Farms to purchase Belfast Road. She spoke to her family law lawyer, Mary Cull, about that offer. Ms. Cull proposed a counter-offer of $830,000.00. This counter-offer included a condition that Ms. Irps-Bleeker would be able to rent the house. Ms. Irps-Bleeker told Mr. Van Gaalen to bring the counter-offer to Ms. Irps-Bleeker and she would sign it.

[13] Mr. Van Gaalen attended at Ms. Irps-Bleeker’s residence on May 30, 2008, at approximately 7:00 p.m. with a copy of the prospective buyer’s offer, including a schedule that had been drafted by Ms. Cull to allow Ms. Irps-Bleeker to rent the property. Ms. Irps-Bleeker signed the counter-offer and initialed it.

[14] According to Ms. Irps-Bleeker’s evidence given at her examination for discovery in this action, when she met with Mr. Van Gaalen on the evening of May 30, 2008, she signed and initialed the Agreement of Purchase and Sale but also told Mr. Van Gaalen not to present the counter-offer until she saw Ms. Cull the following day.

[15] Ms. Irps-Bleeker claims that Mr. Van Gaalen induced her to sign the agreement of purchase and sale.

[16] Ms. Irps-Bleeker gave evidence at her examination for discovery that she attended at Ms. Cull’s office on May 31, 2008, and learned that the offer had been presented and accepted by Groenberg Farms, against her instructions.

[17] Ms. Irps-Bleeker subsequently sought legal advice from Mr. Quinn Ross in June 2008 and sought to rescind the agreement of purchase and sale. She signed an affidavit on June 12, 2008 to advance that wish. There, she made clear that she was aware of the right of first refusal. Ms. Irps-Bleeker also provided information to Mr. Ross that Mr. Van Gaalen did not provide her with detailed or specific information about the agreement of purchase and sale.

[18] Ultimately, Ms. Irps-Bleeker followed Mr. Ross’s advice not to contest the agreement and Belfast Road was sold in accordance with the agreement of purchase and sale. The transaction closed on January 9, 2009.

[19] Mrs. Irps-Bleeker was represented by Ms. Cull from 1997 to November 16, 2009. She then hired Lawrence Greaves to represent her in her family law proceedings.

[20] Ms. Irps-Bleeker commenced her claim against Ms. Cull on March 12, 2012, alleging damages in the amount of $1,500,000.00 plus special damages.

[21] In the Cull action, Ms. Irps-Bleeker claims that the real estate agent was aggressive with her and that Ms. Cull did not properly explain her rights, her ability to make an offer to purchase Belfast Road, mortgage financing options or the right of first refusal.

[22] The Notice of Action in this proceeding was issued June 12, 2015, and the Statement of Claim was issued on July 10, 2015.

[23] This Statement of Claim lists a number of alleged breaches of the duties of the realtors. Ms. Irps-Bleeker alleges that they were negligent in that:

1. They failed to understand the Court Order,
2. They failed to draft a Listing Agreement in accordance with the Court Order,
3. They failed to act as competent Real Estate practitioners in the circumstances,
4. They failed to act in the best interests of the Plaintiff in the circumstances,
5. They failed in the course of a trade in Real Estate to treat the Plaintiff with fairness, honesty and with integrity,
6. They failed to recommend a mortgage broker or mortgage professional to secure appropriate financing,
7. They failed to specify the Right of First Refusal on the Listing Agreement,
8. They failed to identify the Right of First Refusal on the MLS system,
9. They failed to investigate, determine and verify the material facts, affecting the sale, namely the Right of First Refusal,
10. They failed to provide the Plaintiff with sufficient and proper advice concerning the Right of First Refusal.

Positions of the Parties

[24] The Defendants submit that Ms. Irps-Bleeker knew of all of the necessary facts of her claim at the time of the closing of the transaction. She knew that she wanted to exercise her right of first refusal; the realtors had not carried out her wishes and, as a result, she had lost the farm.

[25] Ms. Irps-Bleeker submits that she was not aware that the realtors were responsible for the loss until Ms. Cull was examined for discovery in March of 2015.

Authorities

Summary Judgment

[26] The relevant provisions of the summary judgment process are listed in r. 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), which states in r. 20.01(3) that a defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim.

[27] In response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial (Rules, r. 20.02(2)).

[28] The court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim (Rules, r. 20.04(2)(a)).

[29] In determining whether there is a genuine issue requiring a trial, I must consider the evidence submitted by the parties. I may weigh the evidence, evaluate the credibility of a deponent and draw reasonable inferences from the evidence, unless it is in the interest of justice for such powers to be exercised only at a trial (Rules, r. 20.04(2.1)).

[30] I may, for the purposes of exercising any of those powers, order that oral evidence be presented by one or more parties, with or without time limits on its presentation (Rules, r. 20.04(2.2)).

[31] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada set out the proper approach on such a motion for summary judgment. I should first determine if there is a genuine issue requiring a trial based only on the evidence before me without using the powers set out in r. 20 of the Rules (Hryniak, at para. 66). There will be no genuine issue requiring a trial if the summary judgment process provides me with the evidence required to fairly and justly adjudicate the dispute in a timely, affordable and proportionate procedure.

[32] There will be no genuine issue requiring a trial if I am able to reach a fair and just determination of the merits on the motion. This will be the case when the summary judgment process allows me (i) to make the necessary findings of fact, (ii) to apply the law to the facts, and (iii) is a proportionate, more expeditious and less expensive means to achieve a just result: Hryniak, at para. 49.

[33] If there appears to be a genuine issue requiring a trial, I should then determine if the need for a trial can be avoided by using the powers under r. 20 of the Rules. I may, in my discretion, use those powers, provided that their use is not against the interests of justice. Their use will not be against the interests of justice if the use of these powers will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality, in light of the litigation as a whole: Hryniak, at para. 66.

Limitations Act

[34] Section 4 of Limitations Act sets out that, unless the Act provides otherwise, a proceeding shall not be commenced after the second anniversary of the day on which the claim was discovered.

[35] Section 5(1) sets out that 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 those matters.

[36] A person with a claim is presumed to have known of those matters on the day the act or omission on which the claim is based took place, unless the contrary is proved: Limitations Act, s. 5(2).

[37] In Lawless v. Anderson, 2011 ONCA 102, 198 A.C.W.S. (3d) 333, Rouleau J.A. said:

22 The principle of discoverability provides that "a cause of action arises for the purposes of a limitation period when the material facts on which it is based have been discovered, or ought to have been discovered, by the plaintiff by the exercise of reasonable diligence. This principle conforms with the generally accepted definition of the term 'cause of action' - the fact or facts which give a person a right to judicial redress or relief against another.”

23 Determining whether a person has discovered a claim is a fact-based analysis. The question to be posed is whether the prospective plaintiff knows enough facts on which to base an allegation of negligence against the defendant. If the plaintiff does, then the claim has been "discovered", and the limitation begins to run.

28. … This point was well expressed in Gaudet v. Levy: It is a question of fact as to when the information developed by his solicitor or by himself has reached the stage that a reasonably prudent person, with appropriate access to medical knowledge (appropriate in the sense of that which could be discovered by a reasonably prudent solicitor, or plaintiff following a reasonably diligent investigation) would have determined that he had prima facie grounds for inferring that his doctor had been negligent or had engaged in malpractice upon him. [Citations and emphasis omitted.]

[38] In Nicholas v. McCarthy Tetrault (2008), 171 A.C.W.S. (3d) 83, aff’d 2009 ONCA 692, 181 A.C.W.S. (3d) 49, at para. 27, Perell J. noted:

27 The circumstance that a potential claimant may not appreciate the legal significance of the facts does not postpone the commencement of the limitation period if he or she knows or ought to know the existence of the material facts, which is to say the constitute elements of his or her cause of action. Error or ignorance of the law or legal consequences of the facts does not postpone the running of the limitation period …

Both Issues Together

[39] In the recent case of Nasr Hospitality Services Inc. v. Intact Insurance, 2018 ONCA 725, Brown J.A. stated:

[35] Accordingly, a typical summary judgment motion involving the basic limitation period requires the judge to determine whether the record enables making a series of findings of fact, with the certainty required by Hryniak, on the following matters: (i) the date the plaintiff is presumed to know the matters listed in ss. 5(1)(a)(i)-(iv) – namely, the day on which the act or omission on which the claim is based occurred; (ii) the date of actual knowledge under s.5(1)(a), in the event the evidence proves the contrary of the presumptive date; (iii) the s. 5(1)(b) objective knowledge date, based on the reasonable person with similar abilities and circumstances analysis; and (iv) finally, which of the actual knowledge and objective knowledge dates is earlier, for that will be day on which the plaintiff discovered the claim for purposes of applying the basic limitation period of two years.

[39] I would simply reiterate that granting summary judgment dismissing an action as statute-barred, or declaring when a claim was discovered, requires making specific findings of fact. Assumptions about the matters in ss. 5(1) and (2) of the Act are not analytical substitutes for findings of fact. If the record does not enable the summary judgment motion judge to make those findings with the certainty required by Hryniak, then a genuine issue requiring a trial may exist.

Analysis

[40] My role, then, is to first consider the materials and determine if there remains a genuine issue requiring a trial as to when this claim was or ought to have been discovered.

When did Ms. Irps-Bleeker first know that the injury, loss or damage had occurred (s. 5(1)(a)(i))?

[41] Clearly, Ms. Irps-Bleeker knew that she had lost the home by, at the very latest, the transaction closing date of January 9, 2009. Indeed, her counsel acknowledges that the date may be December 12, 2008, when Mr. Ross advised her that she would likely be unsuccessful in setting aside the agreement of purchase and sale. In my view, the loss occurred and was known to Ms. Irps-Bleeker on January 9, 2009, given that the property had been sold and the right of first refusal could no longer be exercised.

When did Ms. Irps-Bleeker first know that the injury, loss or damage was caused by an act or omission (s. 5(1)(a)(ii))?

[42] Again, Ms. Irps-Bleeker had knowledge that the loss was caused by an act or omission at least when she sued Ms. Cull on March 12, 2012. Ms. Irps-Bleeker certainly did not believe that the loss was any fault of her own. This was known to her more than two years before this action was commenced.

When did Ms. Irps-Bleeker first know that the act or omission was that of the person against whom the claim is made (s. 5(1)(a)(iii))?

[43] Ms. Irps-Bleeker filed an affidavit in response. She said:

19. Throughout, I relied on Cull to represent me. I had rather little contact with the agents.

20. It was only on March 18, 2015 when Cull was examined for discovery in the Cull Action that I became aware for the first time that I had a claim against the real estate agents who acted on the sale. During her examination, Cull stated that she relied on Ritgen to take care of my right of first refusal.

[44] Ms. Irps-Bleeker was not cross examined on this evidence. I have no reason to reject it. Her action against Ms. Cull confirms that she thought that the loss was caused by Ms. Cull.

[45] Although Ms. Irps-Bleeker had retained Mr. Ross with respect to the transaction, that was only to attempt to set it aside – not to sue anyone for negligence. There is nothing in the record to suggest otherwise.

[46] I find that Ms. Irps-Bleeker was not aware of a claim against these Defendants until March 2015.

When did Ms. Irps-Bleeker first know that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it (s. 5(1)(a)(iv))?

[47] There is no dispute on this issue. When Ms. Irps-Bleeker was aware of the above three steps, she was aware that a proceeding would be the appropriate means to seek to remedy it.

On what date would a reasonable person with the abilities and in the circumstances of Ms. Irps-Bleeker ought first to have known of those matters (s. 5(1)(b))?

[48] To rephrase Gaudet v. Levy for the purposes of this case, it is a question of fact as to when the information developed by Ms. Irps-Bleeker or her solicitor had reached the stage that a reasonably prudent person, with appropriate access to real estate knowledge (appropriate in the sense of that which could be discovered by a reasonably prudent solicitor, or by a plaintiff following a reasonably diligent investigation) would have determined that she had prima facie grounds to infer that her real estate agents had been negligent or had engaged in malpractice in managing her file.

[49] Ms. Irps-Bleeker pleads in her Statement of Claim that she has a real estate license and “registered with a Brokerage for her articling period on June 14, 2013.”

[50] In her examination, Ms. Irps-Bleeker acknowledged that she became a licensed real estate agent on June 14, 2013, “and did the courses that were required before.” She had two listings at that time. During her real estate training, she took a course in what obligations real estate agents had to their clients. However, she denied taking any training that identified the failings of these Defendants. In her affidavit, she said:

41. While I did study to obtain my real estate license, the issue of a right of first refusal and how to protect a client in such a situation was not addressed at any time.

[51] Ms. Irps-Bleeker relies cases upon such as Lauesen v. Silverman, 2016 ONCA 327, 130 O.R. (3d) 665, at paras. 24-31, to suggest that, until she was advised by her present lawyer to sue based on the statements from Cull, she had no way to know to sue a professional such as the real estate agents. I do not see that case to be of assistance in these circumstances.

[52] Ms. Irps-Bleeker was under no illusion from a real estate agent that her farm was coming back to her. This case is entirely distinguishable from those cases of plaintiffs, such as patients or legal or accounting clients, relying on their professional advisors to ensure that no error had been made or is being corrected. In those cases, the limitation period may be extended until they have expert advice of negligence; this case is nothing like that for the following reasons.

[53] First, Ms. Irps-Bleeker alleges in her claim that by January 9, 2009, she knew that she had a right of first refusal, that the real estate agent Mr. Van Gaalen had induced her to sign the offer and that the offer had been presented against her instructions. With those alleged facts, she would know that she had been treated unfairly and negligently as alleged in her Statement of Claim.

[54] Second, she then commenced her training to become a real estate agent. Whether this issue was specifically taught or not in her real estate courses, a reasonably prudent person with the abilities and in the circumstances of Ms. Irps-Bleeker would seek out the answers to whether she had a remedy for what she, as a lay person, saw to be a failing by the real estate agents.

[55] While the record does not disclose when Ms. Irps-Bleeker’s training commenced, it was obviously well before her license was issued June 14, 2013. The action was commenced June 12, 2015, more than two years after she ought to have known of her claim. While I cannot find the specific date on this record, I am satisfied on a balance of probabilities that it was before June 12, 2013. Between June 12, 2013, and March 18, 2015, the former date is the earlier of the two dates and, pursuant to s. 5(1) of the Limitations Act, is therefore the date on which the limitation period began to run.

[56] In my view, on this record, there is no genuine issue that requires a trial. On Ms. Irps-Bleeker’s evidence, she failed to take reasonable steps to determine her cause of action before the limitation period expired.

Result

[57] Accordingly, the motions for summary judgment for both sets of Defendants are granted and the action is dismissed.

Costs

[58] If the parties cannot agree on costs, the Defendants shall provide their costs submissions within the next 15 days. Ms. Irps-Bleeker shall provide her responding submissions within 15 days thereafter. There shall be no reply submissions unless I ask for them.

[59] All parties shall make separate submissions with respect to the motion and the action. Each submission shall be no more than three pages, not including any Bills of Costs or Offers to Settle.

[60] Written submissions shall be forwarded to me at my office at the Superior Court Office, 74 Woolwich Street, Guelph, Ontario, N1H 3T9.

G. Lemon Date: October 11, 2018