Court of Appeal for Ontario

Date: September 29, 2017 Docket: C63147 Judges: MacFarland, Watt and Benotto JJ.A.

Between

Unicorr Limited, as Trustee for Norman James Gottlieb and Container Corporation of Canada

Plaintiffs (Appellants)

and

Malone Given Parsons Ltd.

Defendants (Respondent)

Counsel

Alan B. Dryer, for the appellants

David Winer, for the respondent

Heard and Released

Heard and released orally: September 25, 2017

Appeal

On appeal from the judgment of Justice Paul M. Perell of the Superior Court of Justice, dated November 28, 2016, with reasons reported at 2016 ONSC 7350.

Reasons for Decision

[1] The motion judge's key findings are set out in paras. 76 and 77 of his reasons as follows:

[76] In 2011, Mr. Gottlieb knew that the payment of development charges, which had come as such a surprise, could have been avoided had a timely application for a building permit been made and that the responsibility for applying for a building permit (which is actually a disputed point) was on the Defendants. In 2011, Mr. Gottlieb knew the identities of the wrongdoers and he knew the nature of their culpable acts or omissions, which was the failure to obtain a timely building permit. He knew enough material facts to infer that the Defendants had caused him harm.

[77] I will grant that, subjectively, Mr. Gottlieb did not know the legal significance of what he knew, but objectively, a reasonable person acting diligently ought to have known that there was a claim against the persons charged with the responsibility of obtaining a timely building permit. A reasonable person, particularly one who has legal advice available to him for his construction project, would not have asked Mr. Kirk for legal advice about the operation of municipal by-laws.

[2] These findings are more than generous to the appellant.

[3] It is arguable on this record that the appellant ought to have been aware of his claim and his right to bring an action much earlier in time. The Town of Richmond Hill (the "Town") complied with all of its notice obligations prior to the passing of the By-Law, including public meetings and publication of notice. To suggest that anyone engaged in development in the Town and their experts would have been unaware that the Town was about to pass a By-Law under the Development Charges Act, 1997, S.O. 1997, c. 27, strains credulity.

[4] Further, when the Town returned his site plan to the appellant in November, 2009, it noted then that development charges would be owing on the project. Yet, nothing was done until two years later when the building permit was applied for, and he was required to pay the charges. And he knew from Eileen Byrne's email of July 26, 2011, that had he received his building permit prior to the passing of the By-Law, the development charge would not have been payable. Clearly, then, if not before, if he did not know, he ought to have known that he had a claim against those who were responsible for obtaining a building permit on his theory of his case.

[5] We see no error of the decision of the motion judge. The appeal is dismissed. Costs are to the respondent and fixed in the sum of $15,010.02, inclusive of disbursements and HST.

J. MacFarland J.A.

David Watt J.A.

M.L. Benotto J.A.