Court of Appeal for Ontario

CITATION: Century Parking Services Inc. v. Tandem Property Management Inc., 2012 ONCA 414

DATE: 20120615

DOCKET: C53964

BEFORE: Doherty, Juriansz and Ducharme JJ.A.

BETWEEN

Century Parking Services Inc.

Plaintiff/Appellant

and

Tandem Property Management Inc. and Axes Investments Inc.

Defendants/Respondents

COUNSEL:

J. David Sloan, for the plaintiff/appellant

Brett D. Moldaver, for the defendants/respondents

Heard and released orally: June 12, 2012

On appeal from the judgment of Justice A.M. Gans of the Superior Court of Justice, dated May 31, 2011.

ENDORSEMENT

[1] This appeal cannot succeed. On the findings of fact the trial judge made, the appellant’s claim in respect of maintenance fees is statute-barred. A reasonable person in the appellant’s position would have known as early as October 1996 that Axes was not making the payments under the oral contract made in March 1994. Certainly, by May 1999, a reasonable person in the appellant’s position would have known that he had not received the payments to which he was entitled under the oral contract. Axes’ later representation that it was making the payments to a third party is of no moment when the appellant knew or ought to have known that it was not receiving the payments under the contract directly or indirectly.

[2] In our view, it was open to the trial judge to conclude that the appellant’s acquiescence barred recovery on its claim that Axes was unjustly enriched by its provision of management services without compensation. We do not agree that the trial judge’s conclusion on this issue was speculative and not based on evidence in the record. The maintenance agreements that the parties concluded during the period that the management services were provided were in evidence. The trial judge’s inference that Axes would likely have adopted a different posture in the negotiation of those contracts was based on evidence, and in our view was well founded.

[3] In the result, the appeal is dismissed with costs to the respondents fixed in the amount of $21,000 inclusive of disbursements and applicable taxes.

“D. Doherty J.A.”

“R.G. Juriansz J.A.”

“E.W. Ducharme J.A.”