COURT OF APPEAL FOR ONTARIO

CITATION: Hunter-Rutland Inc. v. Huntsville (Town), 2015 ONCA 353

DATE: 20150519

DOCKET: C59493

Strathy C.J.O., LaForme and Tulloch JJ.A.

BETWEEN

Hunter-Rutland Inc.

Respondent (Plaintiff)

and

The Corporation of the Town of Huntsville

Appellant (Defendant)

William A. Chalmers, for the appellant

Daniel J. Wyjad, for the respondent

Heard: May 12, 2015

On appeal from the order of Justice Thomas M. Wood of the Superior Court of Justice, dated October 9, 2014, with reasons reported at 2014 ONSC 5902.

ENDORSEMENT

[1] Hunter-Rutland Inc. (“HRI”) was a commercial tenant of the Town of Huntsville (the “Town”). HRI defaulted on rent, was evicted from the premises, and was given 30 days to remove its possessions. HRI removed all its possessions except for a router. The Town later sold the router and applied the funds to a charity. HRI commenced an action for conversion and negligence in respect of the Town’s disposal of the router.

[2] The Town brought a motion for summary judgment arguing that the limitation period expired. HRI did not serve any notice of motion and did not seek any relief other than the dismissal of the Town’s motion.

[3] The motion judge granted summary judgment in favour of HRI and directed that damages be assessed at a later date under rule 20.05. The Town appeals the order.

[4] We would dismiss the appeal for the following reasons.

[5] First, there was nothing wrong with the motion judge granting judgment in favour of HRI in all the circumstances of this case. Had HRI brought its own motion for summary judgment, it is difficult to see how the argument and evidence would have been different given the scope of the issue involved. The jurisprudence supports the conclusion that a motion judge, on summary judgment motions, has the power to grant judgment for or against the moving party: see Whalen v. Hillier (2001), 2001 24070 (ON CA), 53 O.R. (3d) 550 (C.A.).

[6] Thus, in the absence of any prejudice, and given the monetary claims in issue, this was an entirely fair process that resulted in a just adjudication of the disputes between the parties.

[7] Second, we agree with the motion judge; the claim was discovered when the respondent learned of the sale. That is to say, the alleged wrongful conduct was related to the Town’s handling of the sale of the router, not its seizure. The motion judge was, therefore, correct in holding that the limitation period had not expired.

[8] Third, even if the router became the property of the Town by virtue of clause 6.2 of the lease, the Town was nevertheless obligated by clause 10.10 to apply the proceeds of the sale to rent arrears. Moreover, the Town was obligated to sell the router at a reasonable price pursuant to s. 53 of the Commercial Tenancies Act, R.S.O. 1990, c L.7.

[9] For the sake of clarity, and as acknowledged by the respondent, the Town may rely on all the defences and arguments otherwise available to a party on the assessment of damages. Specifically, they are not constrained from doing so by paras. 48 and 52(4) of the motion judge’s reasons.

[10] Finally, HRI is awarded its costs of the appeal in the agreed upon amount of $13,500, inclusive of disbursements and HST.

“G.R. Strathy C.J.O.”

“H.S. LaForme J.A.”

"M. Tulloch J.A."