COURT OF APPEAL FOR ONTARIO

CITATION: York Condominium Corporation No. 62 v. Superior Energy Management Gas L.P., 2013 ONCA 789

DATE: 20131224

DOCKET: C57181

Sharpe, MacFarland and Watt JJ.A.

BETWEEN

York Condominium Corporation No. 62

Applicant (Appellant)

and

Superior Energy Management Gas L.P. o.a. Superior Energy

Respondent (Respondent in appeal)

Counsel:

Michael Campbell, for the appellant

Erik Penz and Ben Frenken, for the respondent

Heard and released orally: December 18, 2013

On appeal from the order of Justice Robert Goldstein of the Superior Court of Justice, dated May 6, 2013.

ENDORSEMENT

[1] The appellant Condominium Corporation brought this application for a declaration that the contract entered by its former manager with the respondent for five years fixed price natural gas supply was void and for related damages arising from monthly payments made pursuant to the contract.

[2] We see no error on the part of the application judge in finding that the appellant’s claim is barred by the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. The basis of the claim is that the Condominium Board did not approve the contract. We agree with the application judge that the appellant was aware of the facts supporting its claim by October 2009. This action was commenced in September 2012, more than two years after the appellant knew that the injury, loss or damage had occurred.

[3] The contention that the limitation period only began to run from the date of the appellant’s demand letter November 18, 2010 must be rejected. That demand or notice was not required to trigger the commencement of the limitation period. As the application judge put it, to accept that argument would allow a party to pick and choose when the time starts to run under the Limitations Act, 2002.

[4] We do not accept the submission that a new claim arose with each invoice issued by the respondent and that it is open to the appellant to claim excess payments made within two years of the commencement of the application.

[5] The claim for recoupment of what the appellant alleges are excess charges is purely derivative of the claim that the contract is void. The appellant can only succeed on that claim if it first establishes the source of the alleged injury, loss or damage, namely that the contract should be set aside. This is not a claim for recovery of recurring damages for breach of contract but rather a claim that the contract never existed. The appellants had two years from the date they discovered that claim to assert it and they failed to do so.

[6] Accordingly, the appeal is dismissed with costs to the respondent fixed at $10,000 inclusive of disbursements and taxes.

“Robert J. Sharpe J.A.”

“J. MacFarland J.A.”

“David Watt J.A.”