Court of Appeal for Ontario

2015 ONCA 809

Date: 2015-11-24

Docket: C60811

Before: Cronk, Epstein and Huscroft JJ.A.

Between:

Germano Ngoma Wabafiyebazu Plaintiff (Appellant)

and

Farley, Smith and Murray Surveying Ltd. Defendant (Respondent)

Counsel: Germano Ngoma Wabafiyebazu, appearing in person Christopher L. Hluchan, for the respondent

Heard: November 13, 2015

On appeal from the judgment of Justice Rick T. Leroy of the Superior Court of Justice, dated October 20, 2014.

ENDORSEMENT

Introduction

[1] The appellant appeals from summary judgment granted by the motion judge dismissing his action against the respondent surveying company.

[2] This litigation arose from a dispute between the appellant and his neighbour regarding the location of a boundary line between their respective properties. The appellant and his wife purchased their lot on June 30, 1999. After they acquired the property, the appellant planted a hedge along what he understood to be the boundary between his lot and that of his adjoining neighbour, based on information provided by his real estate agent. Several years later, when a new owner of the adjoining lot sought to develop his property, a survey revealed that the appellant’s hedge encroached on the neighbour’s property. The neighbour reclaimed the affected land by having the hedge relocated to the boundary depicted on the survey.

Respondent’s Involvement

[3] The pertinent background facts regarding the respondent’s involvement may be summarized in brief as follows.

[4] In 1988, the respondent had prepared a draft reference plan in support of the proposed severance of the appellant’s lot and that of his adjoining neighbour. The neighbour applied for severance to the local Committee of Adjustments. In November 1989, after some amendments to the initial severance proposal, the Committee granted both severance and revised minor property variances.

[5] The following year, the respondent prepared another reference plan showing the boundaries and respective land areas of the two lots. A revised reference plan was filed in late September 1990 and, on November 19, 1990, was accepted by the Committee of Adjustments.

[6] In October 2001, the adjoining property was sold to a new owner. It remained vacant for some years. However, in 2006, the new neighbour retained the respondent to survey his lot, in support of an application for a building permit. The survey, dated May 30, 2006, revealed that the appellant’s hedge encroached on the neighbour’s lot. The neighbour relocated the hedge to the boundary depicted on the final September 1990 reference plan and the May 2006 survey.

[7] The appellant retained counsel to investigate the boundary issue. He also visited the respondent’s offices, asserting that the survey was incorrect or faulty and that he had lost property as a result. In late August 2006, he obtained a copy of the final reference plan from the respondent. The appellant did not accept the respondent’s explanation of the boundary line. He continued to attend at the respondent’s offices on several occasions in 2006 and 2007 in an effort to obtain a “corrected” reference plan reflecting what he regarded as the boundary line contemplated by the Committee of Adjustments’ prior decision.

[8] In November 2011, when the dispute concerning the accuracy of the survey and the reference plan continued, the appellant sued the respondent and the Association of Ontario Land Surveyors, seeking various forms of relief. As against the respondent, among other things, the appellant claimed general and punitive damages and an order correcting the disputed survey and reference plan.

[9] On March 30, 2012, the Association of Ontario Land Surveyors obtained summary judgment, dismissing the appellant’s action as against the Association. That judgment is not at issue on this appeal.

[10] The respondent also moved for summary judgment. The appellant filed no evidence in response to the respondent’s motion.

[11] The motion judge found there was no genuine issue requiring a trial. He noted that the appellant’s claim as against the respondent was framed in negligence and determined that the claim was outside the two-year limitation period established by s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (the “Act”).

[12] The motion judge also found that: there was no evidence of negligence by the respondent in the performance of its survey work; the respondent was not responsible for the appellant’s mistake regarding the location of the disputed boundary line; and, even assuming that the respondent owed the appellant a duty of care, the losses claimed by the appellant were too remote from any alleged negligence, in any event. On this ground, as well, the motion judge concluded that the appellant had no actionable claim against the respondent.

[13] Accordingly, by order dated October 20, 2014, the motion judge granted summary judgment in favour of the respondent and dismissed the appellant’s action.

Discussion

[14] We see no error in the motion judge’s conclusion that the appellant’s action was statute-barred.

[15] Contrary to the appellant’s submission, his claim against the respondent, as pleaded, sounds in negligence (as reflected, for example, in paras. 1, 34 and 35 of the statement of claim). Consequently, the two-year limitation period provided for under s. 4 of the Act applied.

[16] On the uncontradicted evidence before the motion judge, the appellant knew, by the summer of 2006, of the encroachment of his hedge on his neighbour’s property and of the boundary dispute. Critically, the appellant acknowledged before the motion judge that, after conducting his own enquiries and attending at the respondent’s offices on several occasions, he had sufficient information by September 2008 to conclude that he had a cause of action against the respondent.

[17] In these circumstances, the limitation period commenced to run by no later than September 2008 and expired by no later than September 2010. The appellant did not commence his action against the respondent until November 2011, after expiry of the limitation period. Accordingly, his action was statute-barred.

[18] Before this court, the appellant argues that the motion judge had no jurisdiction to proceed with the summary judgment motion because, at the time of the motion, his action had already been set down for trial. Further, the appellant says that he did not consent to the scheduling of a long motion for argument of the summary judgment motion.

[19] These arguments do not assist the appellant. We are satisfied that the respondent was entitled to bring a summary judgment motion under r. 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 when it did. Further, any procedural irregularity in the scheduling of a long motion does not undercut the reality that, as a matter of law, the limitation period in this case had run by the time the appellant started his action.

[20] The appeal is therefore dismissed. The respondent is entitled to its costs of the appeal, fixed in the amount of $7,500, inclusive of disbursements and all applicable taxes.

“E.A. Cronk J.A.”

“Gloria Epstein J.A.”

“Grant Huscroft J.A.”