SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-11-420068
DATE: 20120405

RE: HALEY WHITTERS and JULIE HENDERSON

Plaintiffs

• and -

FURTIVE NETWORKS INC., carrying on business as DEMARCATION POINT and BELL CANADA

Defendants

BEFORE: Justice S. Stevenson

COUNSEL:
Peter Cho , for the Plaintiffs

Rahool P. Agarwal , for the Defendant Furtive Networks Inc.

Lisa Alleyne , for the Defendant Bell Canada

DATE HEARD: March 5, 2012

E N D O R S E M E N T

[ 1 ] This is a motion brought by the Defendant Furtive Networks Inc (“Furtive”), carrying on business as Demarcation Point under Rules 21.01(1) (a) and 21.01(1)(b) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 for an order striking out the Plaintiff’s Statement of Claim and dismissing the action on the basis that the action was commenced after the applicable two-year limitation period. In the alternative, the Defendant Furtive seeks an order striking out the Plaintiff’s claim for public nuisance on the basis that it does not disclose a reasonable cause of action. The Defendant Furtive also seeks costs.

[ 2 ] Furtive seeks this relief based on the following grounds:

i) the Plaintiffs’ claim is for damages arising from holes in their roof allegedly caused by the Defendants;

ii) the Statement of Claim expressly pleads that the Plaintiffs discovered the roof damage on November 25, 2008;

iii) the Plaintiffs did not commence their action until February 11, 2011 after the two-year limitation period;

iv) it is plain and obvious that the claim is statute barred and no additional facts would alter that conclusion;

v) the Plaintiffs’ claim for public nuisance does not disclose a reasonable cause of action and does not plead the required elements of the tort, including that the alleged wrongful conduct affects the interests of the public and not simply the private interests of the Plaintiffs.

Background

[ 3 ] The Plaintiffs’ claim is that on November 25, 2008 a technician from Furtive attended at the Plaintiffs’ home to perform an installation of cable television services on behalf of the Defendant, Bell Canada. During the course of the installation the allegation is that the technician climbed up an antenna attached to the home in order to access the roof. The antenna detached from the home and as a result a number of shingles were removed from the roof. The technician proceeded to step onto the roof which appeared to create a hole.

[ 4 ] Prior to leaving the home, the Plaintiff, Julie Henderson, alleges that she asked the technician if damage was done to the roof and the technician advised her that there was minor damage, a few shingles had been broken and someone would repair the shingles. The Plaintiffs plead that Ms. Henderson asked the technician if any water could come in through the roof and was advised it could not.

[ 5 ] The Plaintiffs claim that they relied upon the assurances of the technician and they allege that the Defendants did not make any repairs to the roof.

[ 6 ] On February 14, 2009, a heavy rainfall occurred and water flooded the home. The Plaintiffs plead that the home suffered significant water damage throughout the home. The Plaintiffs claim that their damages arose from the flooding incident on February 14, 2009 and their cause of action arose on February 14, 2009.

[ 7 ] The Defendants allege that the Plaintiffs discovered their claim on November 25, 2008 and given they commenced their Statement of Claim on February 11, 2011 their claim is barred by the Limitations Act, 2002 , S.O. 2002, c. 24, Sched. B .

Issues

[ 8 ] The following are the issues for this motion:

(i) What is the test on a motion to strike a pleading?

(ii) Should the claim as against the Defendants be struck and the action dismissed on the basis that the action was commenced after the applicable two-year limitation period?

(iii) Should the Plaintiffs’ claim for public nuisance be struck on the basis that it does not disclose a reasonable cause of action?

Relevant Statutory Provisions

[3] Rule 21.01(1) of the Rules of Civil Procedure states:

21.01 (1) A party may move before a judge,

(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs; or

(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,

and the judge may make an order or grant judgment accordingly.

[4] Section 5(1)(a) of the Limitations Act states:

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 had 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, a proceeding would be an appropriate means to seek to remedy it[.]

The Test on Motion to Strike

[5] The Supreme Court of Canada in its recent decision in R. v. Imperial Tobacco Canada Ltd. , 2011 SCC 42 , [2011] S.C.J. No. 42 refined the test to be met on a motion to strike. McLachlin C.J. wrote at paragraph 17:

… A claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action: Odhavji Estate v. Woodhouse , 2003 SCC 69 , [2003] 3 S.C.R. 263, at para. 15 ; Hunt v. Carey Canada Inc. , 1990 SCC 90 , [1990] 2 S.C.R. 959, at p. 980. Another way of putting the test is that the claim has no reasonable prospect of success. Where a reasonable prospect of success exists, the matter should be allowed to proceed to trial: see, generally, Syl Apps Secure Treatment Centre v. B.D. , 2007 SCC 38 , [2007] 3 S.C.R. 83; Odhavji Estate ; Hunt ; Attorney General of Canada v. Inuit Tapirisat of Canada , 1980 SCC 21 , [1980] 2 S.C.R. 735.

Disposition

[6] The Plaintiffs submit that there are additional facts in this matter that need to be addressed at trial in order to determine when the Plaintiffs discovered their cause of action and when the appropriate limitation period commenced. They further submit that without the opportunity to address these additional facts, it would be premature to dismiss their claim at this time.

[7] The Plaintiffs submit that they did not know on November 25, 2008 that they had a claim for damages or that a proceeding would be an appropriate means to seek a remedy.

[8] In the case of Frumusa v. Ungaro, [2005] O.J. No. 2412 (S.C.J.) Justice Herman dealt with a similar motion to dismiss a claim under Rule 21.01(1) (a). At paragraph 36 Justice Herman stated:

While the facts, as pleaded in this statement of claim, suggest that the limitation period may have expired before the action was commenced, I cannot conclude that additional facts could not possibly be asserted that would lead to a different conclusion. In the result, it is my opinion that this part of the defendants' motion is premature.

[ 9 ] Similar to the reasoning of Justice Herman in Frumusa v. Ungaro , at this early stage, I cannot conclude that additional facts would not lead to a different conclusion. At this point no Statement of Defence has been filed by the Defendants and it is not plain and obvious that the Plaintiffs’ position on the limitation period would fail.

[ 10 ] As the Ontario Court of Appeal stated in the case of Beardsley v. Ontario Provincial Police, 2001 ONCA 8621 , [2001] O.J. No. 4574 at paragraphs 21 and 22 :

¶21 The motion to strike based on the expiry of a limitation period could only be made pursuant to Rule 21.01(1)(a), which provides that a party may move for the determination of a question of law "raised by a pleading". The expiry of a limitation period does not render a cause of action a nullity; rather, it is a defence and must be pleaded. Although we agree that it would be unduly technical to require delivery of a statement of defence in circumstances where it is plain and obvious from a review of a statement of claim that no additional facts could be asserted that would alter the conclusion that a limitation period had expired, a plain reading of the rule requires that the limitation period be pleaded in all other cases. See Pollakis v. Corner (1975), 1975 SCC 597 , 9 O.R. (2d) 691 (H.C.J.).

¶22 Plaintiffs would be deprived of the opportunity to place a complete factual context before the court if limitation defences were determined, on a routine basis, without being pleaded. Adherence to rules that ensure procedural fairness is an integral component of an appearance of justice. …

[ 11 ] It is premature at this stage to strike out the entire Statement of Claim and dismiss the action on the basis as alleged by the Defendants that the action was commenced after the applicable two-year limitation period. A full finding of the facts is necessary to determine when the claim was discovered by the Plaintiffs as set out in section 5 of the Limitations Act . I agree with the Plaintiffs’ submission that that the Plaintiffs would suffer a substantial degree of prejudice if they are not afforded the opportunity to provide the Court with a proper factual context surrounding the issue of when the cause of action arose.

[ 12 ] Justice Wein in the case of Charlton v. Beamish , 2004 35934 (ON SC) , [2004] O.J. No. 4540 (S.C.J.) similarly dealt with a Rule 21.01(1) (a) motion and the issue of a limitation period. At paragraph 26 of her decision, Justice Wein stated:

It is clear from its wording and as noted in the cases that rule 21.01(1) (a) is a discretionary rule. The determination of whether an issue is a question of law, a question of fact, or a question of mixed law and fact is not always easy to determine. Obviously the Court of Appeal has given clear direction that where there is any factual component to the issue relating to the application of the discoverability principle to the limitation period, the matter must be dealt with at trial.

[ 13 ] It is clear in this case that it would be inappropriate for me to determine the limitation period issue before trial where discoverability is an issue.

[ 14 ] I am also concerned that at this early stage it would be fundamentally unfair to the Plaintiffs to dismiss their claim in its entirety on the basis that they should have commenced the action earlier if, in fact, they could not have reasonably discovered that they had a cause of action until later. This will all depend on the facts; examinations for discovery will need to take place and, ultimately, a trial if necessary to resolve the matter.

The Plaintiffs’ Claim for Public Nuisance

[ 15 ] The Plaintiffs plead, in the alternative, that the damage to the home was caused by a public nuisance created by the Defendants and their servants, agents, employees and that the Plaintiffs suffered particular and special damages that are distinct from those suffered by other members of the public due to the holes in the roof of the home.

[ 16 ] The Supreme Court of Canada described the elements of the tort of public nuisance in the case of Ryan v. Victoria (City) , 1999 SCC 706 , [1999] 1 S.C.R. 201 at paragraph 52 :

The doctrine of public nuisance appears as a poorly understood area of the law. ‘A public nuisance has been defined as any activity which unreasonably interferes with the public's interest in questions of health, safety, morality, comfort or convenience’: see Klar [Klar, Lewis N. Tort Law , 2nd ed. Scarborough, Ont.: Carswell, 1996], at p. 525. Essentially, ‘[t]he conduct complained of must amount to . . . an attack upon the rights of the public generally to live their lives unaffected by inconvenience, discomfort or other forms of interference’: See G. H. L. Fridman, The Law of Torts in Canada , vol. I (1989), at p. 168. An individual may bring a private action in public nuisance by pleading and proving special damage. See, e.g., Chessie v. J. D. Irving Ltd. (1982), 1982 2918 (NB CA) , 22 C.C.L.T. 89 (N.B.C.A.). Such actions commonly involve allegations of unreasonable interference with a public right of way, such as a street or highway. See ibid. , at p. 94.

[ 17 ] The public element of the tort was further dealt with by P. Lauwers J. in the decision of Sunnybrae Springbrook Farms Inc. v. Trent Hills (Municipality), 2010 ONSC 1123 at paragraph 77 , affirmed on appeal: 2011 ONCA 179 :

Importantly, however, while the whole public need not be affected by the nuisance, a substantial number of people must be. See: Allen M. Linden and Bruce Feldthusen, Canadian Tort Law , 8th ed. (Canada: LexisNexis Canada Inc., 2006) at 561. This is in accordance with the pronouncement by Lord Denning that ‘a public nuisance is a nuisance which is so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it, but that it should be taken on the responsibility of the community at large.’: Attorney General v. P.Y.A. Quarries Ltd. , [1957] 2 Q.B. 169, [1957] 1 All E.R. 894 at 190-191(Eng. C.A.) , cited in Sutherland v. Canada (Attorney General) 2002 BCCA 416 at para. 32 .

[ 18 ] I agree with the submissions of the Defendant that the Statement of Claim does not sufficiently advance the requisite elements of the tort of public nuisance. Further, it does not disclose a reasonable cause of action.

[ 19 ] The key elements of the tort of public nuisance are absent. I agree that there is no public aspect to the alleged wrongful activity. The damage resulted from the alleged actions of the technician and affected the Plaintiffs’ private interests. The alleged wrongdoing has not affected a "substantial number of people".

[ 20 ] I do not find that the Plaintiffs’ damages as pleaded are special damages for the purposes of the tort of public nuisance. The damages are not in respect of a nuisance that is public in effect.

[ 21 ] I also do not find on the facts pleaded that there is the requisite element of unreasonable interference. I agree with the submissions of the Defendant that this necessary element is absent. The technician was invited to the Plaintiffs' home and on the facts as pleaded there can be no unreasonable interference.

[ 22 ] For those reasons, I do not find that the Plaintiffs' claim discloses a reasonable cause of action with respect to the tort of public nuisance and I therefore strike the Plaintiffs’ claim for public nuisance.

Order

[ 23 ] The Defendant Furtive’s motion for an order striking out the Plaintiffs’ Statement of Claim and for an order dismissing the action on the basis that the action was commenced after the applicable two-year limitation period is dismissed. The Defendant Furtive’s motion for an order striking out the Plaintiffs’ claim for public nuisance is granted.

[ 24 ] Both parties submitted Costs Outlines, but based on the mixed success of the motion, there shall be no order as to costs.

Stevenson J.

DATE: April 5, 2012