ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-09-169-00
DATE: 2012/MAR/12

BETWEEN:

Alison Turnbull-Smith and Jeffrey Smith
Plaintiffs

– and –

Bruce Turnbull, Thomas Turnbull and Charles Dietrich Construction Limited
Defendants

John A. Ryder-Burbidge, for the Plaintiffs
Christopher S. Guest, for the Defendant Charles Dietrich Construction Limited

HEARD: March 7, 2012

The Honourable mr. justice j. m. johnston

RULING ON MOTION

[ 1 ] This is a motion brought by the Plaintiffs to amend their amended Statement of Claim. The Plaintiffs seek to increase the quantum of damages sought, the time period over which the Defendants are alleged to have tortiously taken the Plaintiffs’ sand from the Plaintiffs’ lot and converted it for their own use and to increase the alleged value of the sand so taken.

Background :

[ 2 ] The Plaintiff, Alison Turnbull-Smith, is the daughter of the Defendant, Bruce Turnbull, and the sister of the Defendant, Thomas Turnbull. The Plaintiff, Jeffrey Smith, is Alison’s husband. The Defendant, Charles Dietrich Construction Limited (Dietrich) is the company that admits to having excavated the Plaintiffs’ sand at the material time.

[ 3 ] The Plaintiffs are owners of two lots of land in the Township of Rideau Lakes and owned the lots since 1998. One of the lots is referred to as the “sand lot”.

[ 4 ] The Plaintiffs’ Statement of Claim was initially issued March 31, 2009. It alleged the Defendants improperly took sand in the fall of 2007.

[ 5 ] The Dietrich Statement of Defence is dated May 4, 2009, and was served May 5, 2009. In paragraphs 3 and 4 of the Dietrich Statement of Defence and Cross-claim, they state:

(3) Dietrich has done work for the other Defendants herein over a period which extends back many years.

(4) In the course of performing some of that work, Dietrich has excavated and transported sand material from the “sand lot” described in paragraph 8 of the Statement of Claim to other nearby portions of the Turnbull properties.

[ 6 ] Examinations for Discovery were held on January 19, 2011. At that time, Mr. Bruce Terry, on behalf of the Dietrich Defendant, admitted that the Defendant, Dietrich, removed sand from the sand lot between four and eight times between 1998 and 2007. Mr. Terry further admitted that his company took seven times the quantity of sand admitted to in paragraph 11 of the Dietrich Statement of Defence in years 1998 to 2006. In paragraph 11 of the Statement of Defence, the Dietrich Defendant stated the Company removed 1,250 cubic yards of sand in the fall of 2007. Thus, the total sand admittedly taken from 1998 to 2007 was 10,000 cubic yards.

[ 7 ] It is the position of the Plaintiffs that they were not aware that the Dietrich Defendant had removed sand from the Plaintiffs’ lots prior to 2007 until the examination for discovery of Mr. Terry.

[ 8 ] The Dietrich solicitor set this action down for trial on or about August 8, 2011. The matter is scheduled for trial in October, 2012, estimated at five days Judge and Jury.

[ 9 ] Counsel for the Plaintiffs notified counsel for the Defendants of the proposed amendments now being sought in a letter dated October, 2011.

Position of the Defendant Dietrich

[ 10 ] It is the position of the Dietrich Defendant that the proposed amendments sought should not be allowed, as any claims prior to 2007 are statute barred, by virtue of the Limitations Act, 2002, Sections 4 and 5. Dietrich Defendant states that the Plaintiffs should reasonably have known at the time of each occurrence upon which sand was removed from their property, that this occurred and, therefore, further they are deemed to have knowledge that sand was removed.

[ 11 ] Dietrich, therefore, argues that the limitation period with respect to each and any occurrence (of the removal of sand from the Plaintiffs’ lot) prior to 2007 expired prior to the commencement of the action, or, in the alternative, prior to May 5, 2011 (when Statement of Defence was filed).

[ 12 ] Dietrich argues that the Court no longer has discretion under Rule 26.01 of the Rules of Civil Procedure to authorize an amendment to the Statement of Claim that is to include claims which are barred by Section 4 of the Act.

[ 13 ] Dietrich submits that the amendment proposed by the Plaintiffs to incorporate a claim for damages with respect to claims which arose prior to 2007 should not be allowed, given the Plaintiff’s original claim was on its face restricted to a claim for damages suffered by the Plaintiffs and caused by the Defendants “in or about the spring, summer, and early fall of 2007”.

[ 14 ] Dietrich further argues even if the Plaintiffs did not have actual or deemed knowledge of the claim at the time the sand was removed from their lots, they had knowledge once the Statement of Defence was filed and, accordingly, the claim or claims are commenced in excess of the two-year limitation period.

The Law

[ 15 ] Rule 26.01 of the Rules of Civil Procedure provides,

“on motion at any stage of an action the Court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs of an adjournment.

Section 4 of the Limitations Act, S.O. 2002, Chapter 24 provides,

S.4 unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

S. 5 of the Limitations Act sets out the meaning of “discovered” as follows :

S.5(1) a claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew ,

(i) that the injury, loss or damage has occurred ,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission ,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, proceeding would be an appropriate means to seek to remedy it; and

(v) the day on which a reasonable person with the abilities and in the circumstance of the person with the claim first ought to have known of the matters referred to in clause (a).

[ 16 ] Presumption

(2) a person with a claim shall be presumed to have known of the matters referred to in clause (1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proven .

[ 17 ] Then it cites the decision of Innez Joseph v. Paramount Canada’s Wonderland (2008) O.C.A . for the proposition that Rule 26.01 must be applied giving effect to the new Limitation Act and that the Court does not have discretion to extend a limitation period. I agree this proposition advanced by the Defendant.

The Issue to be Determined

[ 18 ] The issue to be determined on this motion is whether or not the Plaintiffs’ claims prior to 2007 against the Dietrich Defendant are barred by virtue of Sections 4 and 5 of the Limitations Act, S.O. 2002 . In my view, there is an evidentiary issue as to whether or not the Plaintiffs’ claims prior to 2007 are barred by virtue of the Limitations Act. The issue turns upon the question of when the claim or claims were discovered by the Plaintiffs. It is the position of the Plaintiffs that the claims were not discovered until examination for discovery of the Defendants’ representative, Mr. Terry, and that, therefore, the limitation period does not apply in this case. The Defendants argue each separate act of removal of sand from the Plaintiffs’ lot constitutes a cause of action and that the Plaintiffs are “deemed” to have knowledge of the removal of the sand and that, therefore, all of the claims prior to 2007 were discoverable at the time the acts occurred and are barred by virtue of the Limitation Act .

[ 19 ] It is not for this Court to determine facts on this motion. Facts are properly determined at trial by the trier of fact.

[ 20 ] The law on this motion is not in dispute, however, the facts are. It is clear that, if there is no factual dispute on the limitation period, the Plaintiff’s Claim should not be extended. However, if the trier of fact accepts the Plaintiffs’ position after hearing all of the evidence, the claim or claims were not discoverable until much later and, in fact, not until the examinations for discovery, then the Limitation Act would not apply.

[ 21 ] At trial the Defendants may be successful in his argument that the Limitation Act applies; so, too, is it possible that the Plaintiffs may succeed. I cannot find as a fact, based on the evidence presented, the limitation period applies to these facts, nor should I at this stage of the proceedings.

[ 22 ] The Defendants’ subsidiary argument is that the limitation period commenced when the Defendant Dietrich filed its Statement of Defence on May 5, 2009. In its Statement of Defence the Dietrich Defendant stated at paragraph 3, “ Dietrich has done work for the other Defendants herein over a period which extends back many years. ” Further in paragraph 4 of the Statement of Defence they state, “ In the course of performing some of that work, Dietrich has excavated and transported sand material from the “sand lot” described in paragraph 8 of the Statement of Claim to other nearby portions of the Turnbull properties ”.

[ 23 ] The Defendant argues this is notice to the Plaintiffs that Dietrich admitted removing the sand from the Plaintiffs’ property from the time the Plaintiffs acquired the property in 1998 to and including 2007. In my view, there is no express admission by the Defendants that they removed sand in the disputed period between 1998 and 2007. One interpretation could be that the Dietrich Defendant removed sand prior to the Plaintiffs acquiring the property, which is irrelevant to this motion. It was not until the discovery of the Defendants’ representative that Mr. Terry made specific admissions of removing sand after the Plaintiffs acquired the property in 1998 that the Plaintiffs had specific knowledge and/or admission from the Defendants of the dates involved.

[ 24 ] I agree that, if I were satisfied that the limitation period had been exceeded, as a fact the law is presumed to be prejudicial to the Defendants.

[ 25 ] For the reasons stated above, I cannot find that the limitation period has been violated on the facts of this case.

[ 26 ] Further, I am not satisfied that the amendments sought create a new allegation of a new tort.

[ 27 ] Pursuant to Rule 26.01 , the Court is mandated to grant an amendment to the pleadings even in cases such as this where the matter has been set down for trial, unless the party opposing the amendment shows prejudice that could not be compensated for in costs or by an adjournment.

[ 28 ] Trial is not scheduled until October, 2012. Having dealt with the issue of the Limitation Act, I find the Defendant has not shown prejudice and, therefore, I am required to grant the amendment.

[ 29 ] Accordingly, I grant the Plaintiffs’ motion in accordance with paragraph 1 of the Notice of Motion.

[ 30 ] The Plaintiffs shall forthwith serve and file their amended amended Statement of Claim and the Dietrich Defendant shall have thirty days from the date of service upon them to file an amended Statement of Defence, if any.

[ 31 ] Notwithstanding this action has been set down for trial, the Dietrich Defendant shall be permitted to conduct such further examinations for discovery of both the Plaintiffs and co-defendants prior to the 31 st day of August, 2012, limited only to new issues arising from the new amendments.

[ 32 ] The Dietrich Defendant shall be permitted until the 31 st day of August, 2012, to serve a report signed by any expert retained by Dietrich which complies with the requirements of Rule 53.03(2.1) of the Rules of Civil Procedure and upon which Dietrich may rely at trial, as it relates to the amendments permitted herein.

[ 33 ] I am not satisfied that this is an appropriate case for security of costs. There is no evidence that the Plaintiffs are impecunious. The subject matter of this litigation is two lots of land that are owned by the Plaintiffs. I am not in a position at this time to determine what, if any, costs incurred by the Defendant as a result of this amendment. Therefore, the issue of costs incurred by the Defendant shall be reserved to the trial judge for determination of whether (a) costs should be awarded to the Defendant and, if so, (b) the quantum of such costs.

[ 34 ] If counsel cannot agree upon the costs of this motion, the Plaintiff shall prepare and serve submissions on costs limited to three pages, together with a Bill of Costs. The Plaintiff shall serve their submissions upon the Defendants within twenty-one days and the Defendant shall have the right to serve and file a response also limited to three pages twenty-one days after service. Submissions should be directed to my Chambers at Brockville, Ontario, with a copy filed at the Court in Kingston. Submissions may be faxed to my Chambers.

The Honourable Mr. Justice J. M. Johnston

Released: March 12, 2012

COURT FILE NO.: CV-09-169-00
DATE: 2012/MAR/12

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Alison Turnbull-Smith and Jeffrey Smith Plaintiffs – and – Bruce Turnbull, Thomas Turnbull and Charles Dietrich Construction Limited Defendants RULING ON MOTION The Honourable Mr. Justice J. M. Johnston

Released: March 12, 2012