Court of Appeal for Ontario

Date: March 15, 2019 Docket: C65751

Judges: Simmons, Tulloch and Brown JJ.A.

Between

1554080 Ontario Inc. Appellant (Plaintiff)

and

Willy Heffner, Heffner Motors Limited, Heffner Auto Sales and Leasing Inc., and Heffner Investments Limited Respondents (Defendants)

Counsel

F. Scott Turton, for the appellant

James H. Bennett, for the respondents

Heard and released orally: March 14, 2019

On appeal from: the order of Justice Silja S. Seppi of the Superior Court of Justice, dated July 4, 2018.

Reasons for Decision

[1]

The appellant, 1554080 Ontario Inc., appeals the dismissal of its action under Rule 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[2]

The appellant owned a piece of commercial property (the "Property"). In its statement of claim, the appellant pleads that in 2012 it entered into discussions with the respondent, Willy Heffner, about renovating the building on the Property in order to lease it out. The appellant alleges that in 2013 the respondents paid some of the Property's expenses and co-signed an agreement with a firm to conduct a Phase II Environmental Site Assessment of the Property. According to the claim, the respondents paid for that work, which revealed some lead contamination around the test bore holes. The appellant then sold the Property in 2014, with some of the respondents receiving $250,000 from the sale proceeds.

[3]

In August 2017, the appellant commenced this action in which it seeks declaratory relief that: (i) the respondents are "persons having control of a pollutant" on the Property, within the meaning of s. 99 of the Environmental Protection Act, R.S.O. 1990, c. E.19, between July 22, 2013 and February 28, 2014; and (ii) the respondents are liable to make contribution or indemnity in respect of any liability that might be imposed in the future upon the appellant by reason of the presence of any excess quantities of lead on the Property.

[4]

The respondents filed a statement of defence and then moved under various branches of Rule 21 for an order dismissing the action. Specifically, the respondents sought to dismiss the action on the basis that the action: (i) disclosed no reasonable cause of action (r. 21.01(1)(b)); (ii) was frivolous and vexatious (r. 21.01(3)(d)); or (iii) was statute-barred under the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B.

[5]

The motion judge dismissed the action on the first two grounds. She did not consider or deal with the limitations period argument.

[6]

The appellant appeals. It advances two main grounds of appeal.

[7]

First, the appellant argues that the motion judge erred by failing to consider and give effect to this court's decision in Brozmanova v. Tarshis, 2018 ONCA 523, 81 C.C.L.I. (5th) 1, which discussed the proper use of Rule 21. We are not persuaded by this submission. Although the motion judge did not refer to the Brozmanova decision, her reasons demonstrate that she was alive to Brozmanova's holding that a motion under r. 21.01(1) was not an appropriate means by which to seek the adjudication of a limitations defence, which usually requires making findings of fact. The motion judge specifically held that it was not necessary to consider the respondents' argument based on the Limitations Act and she made no findings in respect of it. Instead, the motion judge concluded that the respondents' argument that the claim disclosed no reasonable cause of action was dispositive of the motion: at para. 27.

[8]

As its second ground of appeal, the appellant submits that the motion judge erred in holding that the statement of claim does not disclose the material facts necessary to support its claim under s. 99 of the EPA. We disagree.

[9]

Paragraph 12 of the statement of claim contains the bald pleading that the respondents "are all persons having control of a pollutant within the meaning of section 99 of the EPA during the period 22 July [2013] to 28 February 2014." The motion judge held, at para. 20, that the statement of claim contains a "radical defect" because it does not allege any facts to support an ultimate finding that the respondents were owners or persons having control of the lead pollutant "immediately before the first discharge of the pollutant", as required by s. 91(1) of the EPA. The motion judge correctly read the statement of claim; it contained no such pleading. Indeed, the statement of claim does not even plead when the first discharge of lead took place. Accordingly, we see no error by the motion judge.

[10]

That is sufficient to dispose of the appeal. Consequently, we see no need to address the appellant's further submission that the motion judge erred in holding that its claim for a declaration of contribution and indemnity from the respondents in the absence of any claim against the appellant by a third party rendered the action premature.

[11]

In oral argument, the appellant submitted that in the event this court dismissed the appeal, leave to amend the statement of claim be granted. No formal request for leave to amend was made in the Notice of Appeal; no draft amended statement of claim was filed. Leave is not granted.

[12]

The appeal is dismissed. The respondents are entitled to their costs of the appeal fixed on a partial indemnity scale in the amount of $6,500, inclusive of disbursements and applicable taxes.

Janet Simmons J.A.

M. Tulloch J.A.

David Brown J.A.