Court File and Parties

CITATION: Pezuk v. Allandale Community Development Corporation, 2010 ONCA 836

DATE: 20101208

DOCKET: C52113

COURT OF APPEAL FOR ONTARIO

MacPherson, Juriansz and Epstein JJ.A.

BETWEEN

Walter D. Pezuk

Appellant

and

Allandale Community Development Corporation

Respondent

Gabrielle Kramer, for the appellant

Kenneth R. Peel, for the respondent

Heard: November 25 and 26, 2010

On appeal from the judgment of Justice Margaret P. Eberhard of the Superior Court of Justice dated April 22, 2010.

ENDORSEMENT

[1] The appellant, Dr. Walter Pezuk, appeals from the judgment of Eberhard J. of the Superior Court of Justice dated April 22, 2010 in which she concluded that (1) the respondent, Allandale Community Development Corporation (“ACDC”), has title in fee simple to Part 1 of the subject lands; (2) ACDC has title to Part 15 of the subject lands, subject to the possessory claim of Dr. Pezuk; and (3) a trial is required to determine whether Dr. Pezuk’s possessory claim to Part 15 is statute barred.

[2] The appellant also seeks leave to appeal from Eberhard J.’s decision dated August 5, 2010 in which she awarded costs to ACDC fixed at $77,931.67.

[3] With respect to Part 15 of the subject lands, the appellant contends that the application judge erred by declining to decide the limitation issue on the record before her. He says that he was not aware of the transfer of these lands from CN to the respondent until the summer of 2002. He submits that, pursuant to ss. 4 and 5 of the Real Property Limitations Act, R.S.O. 1990, c. L. 15, this was the first act of dispossession that challenged his deed to the property acquired in 1981 and that, therefore, he had ten years from the summer of 2002 to make his claim. He filed his Statement of Claim in December 13, 2007, within this period, and indeed within a six year period if that is the correct limitation period.

[4] We do not accept this submission. In our view, the application judge appropriately exercised her discretion to decline to determine the discoverability issue in the absence of a trial as to whether the claim is barred on the ground it was brought outside the limitation period. The summer of 2002 is not the only date in play on the discoverability issue. The appellant received his deed in 1981. In 1996, the lands ceased to be used for railway purposes. The appellant took no steps to claim a reversionary interest. Arguably, the appellant became aware in 1996 of the possible sale of the railway lands. Arguably, the appellant knew in 1997 that a sale to the respondent was possible. In 1999, CN sold the lands to the respondent. All of these dates and events, when set against the appellant’s simple assertion that he did not know of the respondent’s claim to the lands until 2002, clearly pose what the application judge described as “credibility issues bearing on the determination of the applicability of the Limitations issue as to whether or not Pezuk is out of time in asserting a possessory interest in part 15”.

[5] With respect to Part 1 of the subject lands, the appellant submits that the trial judge erred in concluding that an agreement between Andrew Cunio and the Toronto Simcoe and Muskoka Junction Railway Company (the predecessor to CN) in 1870 was effective in transferring title to the railroad.

[6] We do not accept this submission. Assuming that the appellant’s title even includes the reversionary interest he claims, the application judge noted that a good deal of the relevant historical documentation was lost. She carefully reviewed the conduct and activities of the original parties to the 1870 agreement and their successors. That evidence established, as the application judge found, that there was known compliance with the legislation all along the railway line. Until Dr. Pezuk 130 years later, no one challenged the railway title. We cannot say that the application judge erred by concluding:

So, in summary to this point, I find the Railway did acquire title to lands as predicted by the description of the Cunio agreement, not by that agreement, since the Railway didn’t insist on the deed it could have demanded, but through exercise of legislated powers.

[7] Finally, the appellant contends that the application judge erred by awarding costs to the respondent prematurely (because the limitation issue has not been determined) and in an excessive amount.

[8] We do not accept this submission. Although the limitation issue remains to be decided, several other important issues were determined with finality in the respondent’s favour. There is no reason to delay a costs award with respect to those issues. Nor do we see any basis for quarrelling with the quantum of costs awarded by the application judge.

[9] The appeal is dismissed. The respondent is entitled to its costs of the appeal fixed at $31,000 inclusive of disbursements and applicable taxes.

“J. C. MacPherson J.A.”

“R. C. Juriansz J.A.”

“Gloria Epstein J.A.”