Court of Appeal for Ontario

Date: 2019-07-10 Docket: C66135 Judges: Tulloch, Roberts and Miller JJ.A.

Between

Monika Irps-Bleeker Plaintiff (Appellant)

and

Janny Van Gaalen, Executor of the Estate of Cor Van Gaalen, deceased, Realty Executives Platinum Limited, Andrew Wildeboer, Bill Wildeboer, Chris Van Berkel, Royal LePage RCR Realty, Werner Ritgen, Fred Lobb, Rick Lobb and Royal LePage Heartland Realty Brokerage Defendants (Respondents)

Counsel

Orie Niedzviecki and Kaleigh Dryla, for the appellant

Amanda Gibson, for the respondents Janny Van Gaalen, Executor of the Estate of Cor Van Gaalen, deceased, Realty Executives Platinum Limited, Andrew Wildeboer, Bill Wildeboer, Chris Van Berkel and Royal LePage RCR Realty

Allan Powell, for the respondents Werner Ritgen, Fred Lobb, Rick Lobb and Royal LePage Heartland Realty Brokerage

Heard and released orally: June 7, 2019

On appeal from: the judgment of Justice Gordon D. Lemon of the Superior Court of Justice, dated October 11, 2018, with reasons reported at 2018 ONSC 6042.

Reasons for Decision

[1] The appellant appeals the judgment of the Superior Court of Justice dated October 11, 2018, dismissing the appellant's claim for professional negligence and breach of contract on the basis that the action was statute barred by virtue of s. 5(1)(b) of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.

[2] The underlying action arises out of the sale of a property owned by the appellant and her then-spouse. The purchaser signed the appellant's counter-offer on May 31, 2008 and the home was sold on January 9, 2009. The appellant alleged that the respondent real estate agents improperly induced her to sign a counter-offer and presented the counter-offer to the purchaser against her instructions. The appellant commenced this action against the respondent real estate agents by notice of action on June 12, 2015 and subsequently issued a statement of claim on July 10, 2015.

[3] The appellant had previously commenced a claim against her family law lawyer on March 12, 2012. In this claim, she sought damages for her family law lawyer's role in the sale of the property. The appellant's evidence was that she only became aware that she had a claim against the respondent real estate agents during the examination for discovery of her family law lawyer on March 18, 2015. However, the appellant obtained a real estate licence on June 14, 2013. Before obtaining her licence, she took courses in real estate, including courses where she learned about the obligations that real estate agents owe to their clients.

[4] The motions judge found that s. 5(1)(b) of the Limitations Act, 2002 barred the appellant's claim. He accepted that the appellant did not subjectively know that she had a claim against the real estate agents until the examination for discovery of her family law lawyer on March 18, 2015. However, he found that, on her own evidence, she knew that by January 9, 2009, that the respondents had induced her to sign the counter-offer and that the counter-offer had been presented to the purchaser against her instructions. She thus would have known that the respondents had treated her unfairly. The motions judge also found that when she began taking real estate courses, a reasonable person with her abilities and in her circumstances would seek out whether she had a legal remedy for what she saw as the unfair conduct of the respondents. Because the appellant began taking the real estate courses well before she obtained the licence, the motions judge found that she should have known of her claim before June 12, 2013. Her claim was thus statute barred.

[5] The appellant submits that the motions judge made palpable and overriding errors of fact by finding that she should have known of her claim before June 12, 2013. She argues that he misapprehended the significance of the evidence of her family law lawyer and the evidence about the real estate courses that she took.

[6] We would reject this submission. The motions judge's decision was grounded in the evidence. He found that the appellant knew the loss had occurred by January 9, 2009. He relied on the appellant's own allegation in the statement of claim that the respondents had induced her to sign the counter-offer and presented it to the purchaser against her instructions to find that she would have known the respondents had treated her unfairly by January 9, 2009. The motions judge expressly considered the appellant's evidence that the real estate courses she took did not identify the particular failings of the respondents. However, he found that the courses were sufficient to put the appellant on notice to make further inquiries even if they did not specifically address the respondents' particular failings.

[7] It was open to the motions judge to make the findings he did based on the evidence before him. He applied the relevant legal principles to these findings. He concluded that a reasonably prudent person with the abilities and in the circumstances of the appellant would have known more than two years before the appellant commenced her claim that there were grounds to believe that her real estate agents had been negligent. For these reasons we dismiss the appeal.

[8] Costs are to the respondents, Janny Van Gaalen, Executor of the Estate of Cor Van Gaalen, deceased, Realty Executives Platinum Limited, Andrew Wildeboer, Bill Wildeboer, Chris Van Berkel and Royal LePage RCR Realty in the amount of $4,360 all-inclusive on a partial indemnity basis.

[9] Costs are to the respondents, Werner Ritgen, Fred Lobb, Rick Lobb and Royal LePage Heartland Realty Brokerage in the amount of $2,500 all-inclusive on a partial indemnity basis.

"M. Tulloch J.A."

"L.B. Roberts J.A."

"B.W. Miller J.A."