DATE: 20041129

DOCKET: C38181

COURT OF APPEAL FOR ONTARIO

RE:

CANADIAN MICROTUNNELLING LTD. (Plaintiff/Appellant) – and – THE CORPORATION OF THE CITY OF TORONTO (Defendant/Respondent)

BEFORE:

LASKIN, MACPHERSON and LANG JJ.A.

COUNSEL:

Paul Neil Feldman and

Bruce A. Simpson

for the appellant

Andrew A. Weretelnyk

for the respondent

HEARD & RELEASED ORALLY:

November 25 and 26, 2004

On appeal from the judgment of Justice Susan G. Himel of the Superior Court of Justice dated April 9, 2002.

E N D O R S E M E N T

[1] The appellant, Canadian Microtunnelling Ltd., appeals the judgment of Himel J. dated April 9, 2002, dismissing the appellant’s action against the respondent, The Corporation of the City of Toronto, for damages or, alternatively, restitution, for breach of agreement, breach of fiduciary duty, breach of confidence, breach of trust, breach of warranty and unjust enrichment.

[2] Himel J.’s principal basis for dismissing the action was that it was barred by the six year limitation period in s. 45(1) of the Limitation Act, R.S.O. 1990, c. L.15. However, she also wrote comprehensive reasons dealing with all of the substantive issues raised by the plaintiff, and concluded that there was no merit in the plaintiff’s case.

[3] We agree with the trial judge’s analysis and conclusion on the limitation period issue. The principal of the appellant, Mr. Benner, knew that he was not going to receive an untendered contract from the respondent by June 1990. The appellant then submitted a bid in the tender process. The appellant complained that a rival’s bid was non‑compliant with the terms of the tender. However, the City awarded the contract to the rival on August 13, 1990. In September 1990, the appellant submitted a bill for $20,000 to the City for preparation of his pre‑tender proposal which did not result in an untendered contract. The City refused to pay on the basis that it had not retained the appellant to provide any services to the City.

[4] Based on these core facts, the trial judge concluded:

In my view, a reasonable person standing in the shoes of the plaintiff would have discovered the material facts on which the claim is based by September 1990 and any action in contract founded on these facts would have been commenced within six years of that date.

We agree.

[5] In fact, the appellant commenced his action against the City on February 5, 1997, approximately five months outside the governing limitation period. Concerning this delay, the trial judge said:

Furthermore, the doctrine of laches arises because of the delay in prosecuting the action. The plaintiff has not demonstrated any evidence of fraud or any wilful wrong doing on the part of the defendant which may have stayed the running of the limitation period. Moreover, there has been no evidence led at trial by the plaintiff explaining the reasons for delay in instituting the claim.

Again, we agree.

[6] The appellant contends that it did not have all the information on which to base its claim until the Freedom of Information Act request was answered in July 1991. There are two answers to this contention. First, as we have noted, the trial judge found that the appellant had or should have had all the information it needed by September 1990. Second, the appellant did not make its Freedom of Information Act request until April 1991, and gave no reason for its delay in doing so.

[7] Our agreement with the trial judge on the limitation period and related laches issues is sufficient to dispose of the appeal. However, because we heard full and, we would add, capable argument from Mr. Feldman and Mr. Simpson on all the substantive issues, for the sake of completeness we would record that we do not accept the appellant’s submissions on those issues. Although, on the record, it is possible to doubt one or two of the many factual findings made by the trial judge in her 150 paragraph judgment, those minor doubts do not come anywhere close to the level of “palpable and overriding error” required to set aside those findings: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. Moreover, the trial judge’s legal analysis relating to contract law, fiduciary duty, breach of confidence, breach of trust, breach of warranty, unjust enrichment and damages was, in our view, both thorough and sound.

[8] The appeal is dismissed with costs fixed at $12,500, inclusive of disbursements and GST.

“John Laskin J.A.”

“J. C. MacPherson J.A.”

“Susan Lang J.A.”