COURT OF APPEAL FOR ONTARIO

ONCA 619

DATE: 20140902

DOCKET: C58327

Doherty, Laskin and Epstein JJ.A.

BETWEEN

York Trafalgar Corporation, Piper’s Heath Golf Club Ltd. and Comarin Corp.

Plaintiffs (Appellants)

and

Symphony Golf Inc. and Philips Engineering Ltd.

Defendants (Respondent)

Paul H. Starkman, for the appellants

James A. LeBer, for the respondent Philips Engineering Ltd.

Heard and released orally: August 15, 2014

On appeal from the order of Justice Edward M. Morgan of the Superior Court of Justice, dated January 14, 2014.

ENDORSEMENT

[1] This is an appeal from a decision of Morgan J. in which he granted summary judgment dismissing the action against one of the defendants, the respondent, Philips Engineering Ltd.

[2] The background facts established a complicated relationship that was created when two families, the Gruehls and the Comarins, put two parcels of land together to develop a golf course. The Gruehls put in 200 acres, the Comarins, 100. For the purpose of developing the golf course, a limited partnership, Piper’s Heath Golf Links Limited Partnership, (“Piper’s LP”) was formed in which the appellant, Piper’s Heath Golf Club Ltd., is the general partner, (“Piper’s GP”).

[3] The limited partners of Piper’s LP are Lina Comarin and Flavio Comarin and the two appellants Comarin and York Trafalgar Corporation. The Gruehl family controls York Trafalgar.

[4] Philips performed planning and re-zoning services in connection with the golf course. The appellants allege that Philips negligently designed the golf course and breached its contract with Piper’s GP by failing to acquire necessary permits. As a result of this substandard performance, the appellants had to include in the golf course ten acres of the Comarin 100 acres that had been reserved for the Comarin’s future use.

[5] Philips brought a motion for summary judgment seeking a dismissal of the action against it on the basis that even if Philips were found negligent and/or in breach of contract, any resultant decrease in the value of the Comarin 100 acres caused no loss to the appellants.

[6] By the time the motion for summary judgment was heard, the appellants’ claim for loss allegedly caused by Philips was limited to the value of the ten acres - being five acres of land that Comarin lost for immediate use outside of the golf course operation and five acres of land Comarin lost to regulated fish habitat previously available for future development.

[7] The motion judge held that it was “obvious that a claim limited to recovering the diminished value of land can only be claimed by the owner of that land” and went on to find that the 100 within which the ten acres was situate, were owned not by Piper’s LP but by Comarin. However, Comarin had no claim against Philips as it purchased the land from the previous owners, Lina and Flavio Comarin, after the alleged diminution of value took place.

[8] Two findings of fact were critical to this conclusion.

[9] First the motion judge found that the golf course lands are not owned by Piper’s LP. York Trafalgar owns the 200 acres formerly owned by the Gruehls, Comarin owns the 100 acres formerly owned by Lina and Flavio Comarin.

[10] All of the evidence supports this finding. The lands were registered in Comarin’s name on September 1, 2006, when Comarin purchased it from Lina and Flavio. On the appellants’ evidence, once the limited partnership was formed, sometime after October 2, 2006, it entered into a lease as tenant with York Trafalgar and Comarin, as landlords.

[11] Second, the motion judge found that Comarin acquired the 100 acres for fair market value after any alleged diminution of value had taken place.

[12] On this point the evidence was also clear. By the time Lina and Flavio Comarin sold their 100 acres to Comarin on August 30, 2006, the problems with conservation and fish habitat had been known for many months. The necessary re-design of the golf course that involved the ten acres had already been discussed, submitted and approved.

[13] It follows that Comarin purchased its 100 acres from Lina and Flavio for fair market value after the alleged diminution in value took place. Any loss suffered due to Philips’ services was incurred by Lina and Flavio. Piper’s LP does not own the lands said to have suffered a diminution of value. Comarin bought the lands in issue for its already diminished value. The contractual relationship between Philips and Piper’s TP does not change this.

[14] The motion judge correctly concluded that the appellants have no claim against Philips. The appeal is therefore dismissed.

[15] Costs to Phillips on a partial indemnity basis in the amount of $9,000, inclusive of relevant taxes and disbursements.

“Doherty J.A.”

“John Laskin J.A.”

“Gloria Epstein J.A.”