DATE: 20021107
DOCKET: C37671 C37672 C37673

COURT OF APPEAL FOR ONTARIO

AUSTIN, CHARRON, and ARMSTRONG JJ.A.

BETWEEN:

WILLIAM MALAMAS

Raymond H. Raphael, For the appellant

Plaintiff (Appellant)

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EDMONTON PARK CONSTRUCTION LIMITED, MARTIN PEARL, 866022 ONTARIO LIMITED, MICHAEL WILLIS-O’CONNOR and KNAVIK WILLIS-O’CONNOR

Lawrence F. Wallach and Ronald P. Bohm, for the respondents

Defendants (Respondents)

Heard: October 31, 2002

On appeal from the orders of Justice Jack H. Jenkins of the Superior Court of Justice dated January 7, 2001 and January 15, 2002 and the costs order released February 13, 2002.

BY THE COURT:

[1] [1] In our view, the motions judge was correct in dismissing the appellant’s action as prescribed on the basis that the cause of action had accrued more than six years before the Statement of Claim was issued on November 27, 2000. The motions judge relied on the principle set out in Peixeiro v. Haberman, [1997] 3 S.C.R. 549 where the court stated that, “the exact extent of the loss of the plaintiff need not be known for the cause of action to accrue. Once the plaintiff knows that some damage has occurred and has identified the tortfeasor [citations omitted] the cause of action has accrued.”

[2] [2] On September 22, 1994, the appellant wrote a letter to one of the respondents to complain about the respondents’ conduct. We do not agree with the appellant’s submission that the letter is unrelated to his later action. In our view, it clearly relates to the same subject-matter that formed the basis of his later action. It is therefore clear that, no later than September 22, 1994, the appellant was aware of the respondents’ conduct and, in our view, he would also have been aware that the damages that he later sought to recover in his action had occurred.

[3] [3] His claim for damages, as we understand it, relates to the diminished value of his interest in the demised premises. The fact that the full extent of these damages would not have been known until sometime after November 27, 1994 does not assist him in bringing his claim within the prescription period.

[4] [4] We do not accept the appellant’s contention that he suffered no damage before December 1, 1994. On this point, we find it noteworthy that he refused to answer questions related to his alleged damages on cross-examination of his affidavit filed in response to the motions for summary judgment. The appellant’s response to the prescription issue raised by the respondents was entirely based on the question of timing of damages. In these circumstances, the appellant could not simply rely on bare allegations without more.

[5] [5] The appeal is dismissed with costs fixed at $ 8500 for the respondents Willis- O’Connor and 866022 Ontario Limited and $ 6000 for Edmonton Park Construction Limited and Martin Pearl all inclusive.

Released: November 7, 2002

Signed: “Austin J.A.” “Louise Charron J.A.” “Robert P. Armstrong J.A.”