DATE: 20060112

DOCKET: C42738

COURT OF APPEAL FOR ONTARIO

RE:

NANCY C. DOW (Plaintiff (Appellant)) – and – TOWN OF OAKVILLE (Defendant (Respondent))

BEFORE:

McMURTRY C.J.O., GOUDGE AND CRONK JJ.A.

COUNSEL:

Louis A. Frapporti and Amanda Jackson

for the appellant Nancy Dow

Christine G. Carter and Darcy L. Davison-Roberts

for the respondent Town of Oakville

HEARD & RELEASED ORALLY:

December 15, 2005

On appeal from the order of Justice William J. Festeryga of the Superior Court of Justice dated December 1, 2004.

E N D O R S E M E N T

[1] Even if one assumes, (as the trial judge found), that the Town had a prima facie common law duty of care to the appellant, we agree with the trial judge that the Town lacked the legal authority to impose on the builder a duty to warn about noise in the agreement between them, and that this is a sound policy basis for negating any prima facie duty of care.

[2] It is conceded that no such authority derives from s. 41 of the Planning Act. Nor can we find it in s. 51 or s. 53 of that Act. The builder sought no approval of the proposed subdivision, nor did it seek consent for severance from the Town but, rather, from the Region. While the Region did impose on the builder the obligation to make the agreement with the Town and the builder as a condition of its consent to severance in this case, a duty of care cannot be imposed on the Town where its ability to discharge that duty is dependent on the Region’s decision on severance in this particular case. Had the Region not imposed the condition it did, the Town would have had no way to discharge any duty imposed on it.

[3] On this record, we also do not accept that the trial judge erred by taking into account the provisions of the Planning Act. Although the Planning Act was not specifically pleaded by the respondent, it was a live issue at trial. It was at least adverted to by the respondent in its answers to undertakings given on discovery and it figured in the closing submissions of counsel at trial. In these circumstances, we can find no prejudice.

[4] The appeal must therefore be dismissed. In our view, however, while at law we have found no duty on the Town and the appellant’s core dispute is with the builder, the Town nevertheless did far less than it might have. In these circumstances, there should be no costs of the appeal.

“R.R. McMurtry C.J.O.”

“S.T. Goudge J.A.”

“E.A. Cronk J.A.”