SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 34152
DATE: 2012-02- 23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Thomas Ward and Jeanette Ward Plaintiffs/Respondents - and - THE CORPORATION OF THE MUNICIPALITY OF SOUTHWEST MIDDLESEX, formerly known as The Corporation of the Township of Ekfrid, A.M. SPRIET ASSOCIATES LIMITED also known as SPRIET ASSOCIATES, SPRIET ASSOCIATES LONDON LIMITED and JOHN H. WOLFE AND GRANT WOLFE Defendants/Applicants
Ms. Valerie M’Garry, Counsel for the Plaintiffs Mr. Brian McCall, Counsel for the Defendants, The Corporation of the Municipality of Southwest Middlesex Mr. Kris Hutton, Counsel for the Defendants, A.M. Spriet Associates Limited Mr. M. Paul Downs, Counsel for the Defendants, John H. Wolfe and Grant Wolfe
HEARD: October 11, 12, 13, 14, December 20, 21, 22, 2011 and January 9 and 10, 2012
Bryant J.
I The Summary Judgment Motion
[ 1 ] The Plaintiffs, Thomas Ward and his spouse Jeanette Ward (“Ward(s)”), filed a Notice of Action dated May 12, 2000, against the Defendants, t he Corporation of the Municipality of Southwest Middlesex, formerly known as the Corporation of the Township of Ekfrid (“the Municipality”), A.M. Spriet Associates Limited, also known as Spriet Associates (“A.M. Spriet”) and Spriet Associates London Limited (“Spriet Associates”) , John Wolfe and Grant Wolfe (“the Wolfe brothers”) for damages arising from negligence, injurious affection and nuisance. The Wards seek $200,000 for general damages, $200,000 for special damages and $100,000 for punitive damages.
[ 2 ] The Municipality, A.M. Spriet, Spriet Associates , and the Wolfe brothers (“the Defendants”) brought a summary judgment motion for the following relief: (1) an order for summary judgment dismissing the Plaintiffs’ action as being statute barred; and (2) an order that the costs of the motion and the costs of the action to date be paid to the Defendants on a substantial indemnity basis.
[ 3 ] The Plaintiffs filed a cross-motion seeking to have the action transferred to the Drainage Referee and/or to amend the Statement of Claim in relation to their claim for nuisance and to plead that the cause of action, for the purposes of the limitation period, did not begin to run by reason of the discoverability rule and/or fraudulent concealment. Counsel informed the Court that if the Court dismisses the Defendants’ motion for summary judgment, counsel for the Plaintiffs may further amend the Amended Statement of Claim to increase the monetary claim for damages and to plead the discoverability rule and fraudulent concealment to extend the limitation period. Counsel further agreed that the Plaintiffs would not pursue their motion to transfer their claims to the Drainage Referee.
II Facts
[ 4 ] On August 25, 1897, the Municipality enacted a by-law to provide for a drainage work, known as the Saxon Drain by-law. The Saxon Drain, except for the portion under Irish Drive, was mostly an open ditch about 6 - 8 feet deep, 3 feet wide at the bottom and as much as 10 - 12 feet wide at ground level. The Saxon Drain carried surface and subsurface water throughout the year. The Saxon Drain passed under Irish Drive and then flowed in a southerly direction, through two adjoining properties owned and farmed individually by each of the Wolfe brothers. The lands owned by the Wards, their neighbour to the west, Claire Huston (“Huston”), and the Wolfe brothers formed part of the watershed affected and drained by the Saxon Drain.
[ 5 ] In or about 1973, the Plaintiffs requested the Municipality to deepen and improve the Saxon Drain pursuant to the Drainage Act, R.S.O. 1970 c. 136. The Municipality appointed A.J. DeVos (“DeVos”) of the engineering firm of A.M. Spriet to prepare a plan, a profile and a report for the Saxon Drain as required by the Drainage Act .
[ 6 ] DeVos submitted a report dated January 14, 1974. This report stated that the “existing open ditch has silted up considerably and does not provide a suitable outlet for the affected area.” The report recommended that “the existing ditch be deepened and improved in accordance with the attached plans and specifications.”
[ 7 ] The Wolfe brothers wanted to reclaim part of the open ditch on their lands for farming purposes. In a meeting of some of the owners to be assessed, Huston, (whose surface water flowed south-westerly across the Ward lands and into the Saxon Drain), the Wards (whose subsurface and surface water flowed into the Saxon Drain), and the Wolfe brothers met with the appointed engineer DeVos. At this meeting, the Wolfe brothers persuaded DeVos to alter the original profile and report for the Saxon Drain despite the expressed concern of Huston.
[ 8 ] DeVos prepared a revised report, dated February 19, 1974, in connection with the proposed drain reconstruction (the “revised DeVos report”). On February 19, 1974, the Municipality enacted by-law 8-74 to provide for the reconstruction of the Saxon Drain. Under the revised plan, the northerly portion of the existing drain was to be filled in and an underground tile drain was to be installed. The proposed work consisted of approximately 200 lineal feet of open ditch cleanout and approximately 3166 lineal feet of 14 and 16 inch diameter field tile. The revised report stated that the enclosed tile would be of proper size and depth to address the Plaintiffs’ needs.
[ 9 ] From the installation of the Saxon Drain until 2001, the Plaintiffs experienced flooding of their lands as further outlined below.
[ 10 ] The Defendant, Grant Wolfe, was a drainage contractor. He successfully bid for the contract to construct the drain, almost all of which was on his and John Wolfe’s land. Grant Wolfe initially said there were two benchmarks; one was 4 inches or so higher than the other at the top end (Irish Drive). Counsel’s factum filed on this motion states that he was given the wrong benchmark at the top end of the Saxon Drain. This, Wolfe claimed, caused the tile to be installed too high and off-grade. In his cross-examination, the contractor asserted there were only two benchmarks, one at each end of the drain. It was Grant Wolfe’s evidence that he commenced construction at the southerly end of the proposed drain and worked in a northerly direction.
[ 11 ] The newly constructed Saxon Drain did not align with the Plaintiffs’ sole outlet for upstream subsurface and surface waters because there was limited overlap between the Plaintiffs’ drain and the Municipality’s newly constructed drain. On September 5, 1974, DeVos certified that his final inspection revealed no deficiencies or diversions from the specifications in the plan or profile. The Municipality and its appointed engineer DeVos were responsible for the design, supervision and construction of the new Saxon Drain before and during the construction period. On September 5, 1974, the engineer DeVos filed a report to the Ontario Ministry of Agriculture and Food which stated:
This is to certify that a final inspection has been made and that work has been completed on the subject drainage project to my satisfaction and was done generally as called for in the specifications and plans [without any expressed exceptions].
[ 12 ] However, the Plaintiffs experienced flooding after the new tile drain was installed and the former ditch was filled in. The Plaintiffs looked to the Municipality for assistance and requested maintenance and/or a further engineer’s report.
[ 13 ] The Municipality assessed the Plaintiffs their proportionate share for the so-called improvement in the amount of $1,395. In a letter dated May 11, 1976, Mr. P. Radigan (“Radigan”), a Drainage Engineer of the Ministry of Agriculture and Food, wrote to the Municipality’s Clerk- Treasurer. According to the letter, DeVos had advised him that the new tile drain was designed to take only the subsurface water of the area and surface drainage from the road. The Saxon Drain prior to 1974 received both subsurface and surface water from the Plaintiffs’ lands.
[ 14 ] Radigan also reviewed DeVos’s design for the proposed tile drain. He stated that the drain seemed to be adequately designed. It does not appear that DeVos informed Radigan of the failure to construct the Saxon Drain in accordance with the purported design.
[ 15 ] In the spring of 1975, DeVos met with Grant Wolfe on site, took some supplemental survey levels and discussed the fact that the new tile was installed too high. DeVos did not amend or modify the 1974 report nor did he amend his certification certificate for the Saxon Drain.
[ 16 ] In a letter dated April 23, 1975, from DeVos to Mr. Howard Moore, Drainage Commissioner for the Municipality, DeVos confirmed his April 14, 1975, site meeting with Moore. DeVos advised: (1) the existing ground elevations along the course of the newly constructed Saxon Drain downstream of Irish Road were too high to provide an outlet for Ward’s excess surface water; (2) the newly constructed inlet catch basin was higher then called for on the plan; (3) he recommended that the ditch inlet catch basin be lowered by approximately 6 inches; (4) a waterway should be installed by a grader downstream from the road to provide an outlet for the excess surface water; (5) the new tile drain was higher than called for on the plan at the catch basin on the north side of Irish Drive and was the reason why the Wards’ existing tile drain on the south side of the road is a bit higher than the new Saxon Drain. DeVos stated that this problem would be eliminated once the existing tile was extended a sufficient distance downstream to provide the water with a proper outlet into the new Saxon Drain, which the contractor had purportedly consented to do. This was the proposed Relief Drain described later in these reasons.
[ 17 ] In the letter, DeVos recommended that the connection of the Wards’ existing 10” inch tile to the main drain be dug up and investigated to ensure that it was connected into the new 16 inch tile section of the newly constructed Saxon Drain. DeVos asserted that the contractor was responsible for these repairs and confirmed that Moore had already been in contact with Grant Wolfe and that Wolfe would start work shortly. Finally, DeVos recommended that all the work be completed as soon as possible.
[ 18 ] DeVos and the Wolfe brothers constructed a Relief Drain on the Wolfe brothers’ property to remedy the Plaintiffs’ inadequate drainage outlet to the Saxon Drain. The Municipality did not enact a new by-law relating to the construction or installation of the Relief Drain. The Relief Drain provided no relief from the flooding of the upstream lands of Huston and the Plaintiffs. As a result of the construction of the Relief Drain, the Plaintiffs lost their legal connection to the Saxon Drain because the Relief Drain was a private drain installed on private lands.
[ 19 ] John Wolfe disclaims any knowledge of the construction of the Relief Drain beneath his land at the time the Relief Drain was installed. In cross-examination on his affidavit, John Wolfe stated that he does not recall being involved in a discussion about the installation of the Relief Drain and that his brother would not have needed his permission to put it on his land. He also states, however, that he knew that there had been digging on his land which was obvious from observing the surface of the land.
[ 20 ] The Plaintiff, Tom Ward, worked at the Ford Talbotville plant in addition to farming his land. He was not present in 1974-75 during the construction and installation of the Saxon Drain or the Relief Drain. It is his evidence that he had no knowledge that the Relief Drain had been constructed in 1975.
[ 21 ] It was the Plaintiffs’ evidence that their property was flooded during heavy rains or seasonal melt conditions. A letter, dated February 27, 1979, from Huston to the Drainage Tribunal, stated that his lands were flooded every time there was a large rainfall since the open drainage ditch was filled in.
[ 22 ] The Wards’ septic system surcharged and was nonfunctional during periods of flooding. Two sump pumps in the Wards’ basement were unable to overcome the influx of water causing the furnace and any electrical equipment in the basement to short out. The Wards replaced their furnace and elevated it almost 2 feet off the ground to avoid future damage from floods. The Wards’ cement block basement walls caved in around 1978-79. Several times a year the Plaintiffs and their family of six children did not have a sink or bath or toilet facilities and had to move out of their home for health and safety reasons.
[ 23 ] The Wards knew that the open ditch had effectively received their subsurface and surface water but they did not know why the new drain was not effective. The Plaintiffs did not have the ability to inspect their outlet or to diagnose the deficient connection because the drain was buried and A.M. Spriet, DeVos and the Municipality did not inform the Wards about the misalignment of their drain and the newly constructed Saxon Drain. The undisputed evidence is that DeVos and Grant Wolfe knew that the design of the newly constructed Saxon Drain did not provide an effective outlet for the Wards’ subsurface and surface water. Neither DeVos nor Grant Wolfe informed the Plaintiffs about the design, construction and installation deficiencies of the newly constructed Saxon Drain and Relief Drain. There is evidence that Grant Wolfe knew or ought to have known the cause of the failure or ineffectiveness of the newly constructed Saxon Drain to drain subsurface and surface water from the Wards’ lands. Further, the certificate provided to the Ministry of Agriculture and Food was never amended by DeVos, notwithstanding that he knew of the construction and installation deficiencies on or before April 1975.
[ 24 ] As of April 23, 1975, Moore, the Municipal Drainage Commissioner, DeVos and Grant Wolfe knew that the newly constructed drain was deficient. The revised DeVos report was not amended to specify the deficiencies or to show the construction of the new tile referred to as the “Relief Drain.” The Municipality did not pass a by-law incorporating the Relief Drain as part of the Saxon Drain. The status of the Relief Drain remains a contested issue.
[ 25 ] The representatives of the Defendants A.M. Spriet and the Municipality and the Wolfe brothers failed to disclose the deficiencies to the Plaintiffs or the Plaintiffs’ neighbor Huston, who had made similar complaints to the Municipality and/or the Ministry of Agriculture and Food representatives, about the design, construction and installation of the Saxon Drain and the Relief Drain. There is no evidence that any of them made full disclosure to the Ministry of Agriculture.
[ 26 ] In 1978, the Plaintiffs’ then counsel, Brian Morris, requested information from the Municipality and DeVos. The Municipality provided the engineer’s report which did not disclose the deficiencies in the newly constructed Saxon Drain or the subsequently constructed Relief Drain. An engineer from the Ministry of Agriculture informed Mr. Morris about the different standards for the proper sizing for new subsurface enclosed tile in 1974 but this difference in sizing was not the cause of the flooding of the Plaintiffs’ lands. DeVos suggested that a swale or surface grading would solve the flooding problem but he did not disclose the design or construction deficiencies to the Wards or their counsel, Mr. Morris. DeVos suggested that the Plaintiffs’ lands were in a “trapped area” incapable of being properly drained.
[ 27 ] In April of 1979, the Plaintiffs sought relief from the Drainage Tribunal under the Drainage Act . Mr. Morris, the Plaintiffs’ counsel, and Togham, an engineer, attended on behalf of the Plaintiffs (Tom Ward did not attend due to the receipt of incorrect information from the Municipality of the time and date of the hearing). Mr. A. Spriet from Spriet & Associates testified before the Drainage Tribunal.
[ 28 ] Murray Jeffery, the Municipality’s Drainage Superintendent for the 1979-1985 period, also attended the hearing. Mr. Jeffery attested that the Tribunal was not informed of the deficiencies in the newly constructed Saxon Drain or that the new tile had been constructed too high. Richard Tanner, the Municipality’s Drainage Superintendent for the period 1985-1990 attested that he did not know that the Saxon Drain was too high. It appears that Mr. A. Spriet did not inform the Tribunal of the design, construction or installation deficiencies.
[ 29 ] The undisputed evidence is that DeVos, Grant Wolfe and Moore knew of the construction and installation deficiencies of the reconstructed Saxon Drain. In light of the knowledge of representatives of the engineering firm and the Municipality, it is a matter for a trial judge to determine if Mr. A. Spriet, A.M. Spriet or the Municipality suppressed critical information at the hearing before the Drainage Tribunal.
[ 30 ] On November 14, 1980, the Drainage Tribunal directed the Municipality “to provide for surface drainage of excess surface water along the course of the Saxon Drain.” The Tribunal provided however that the swale or shallow waterway could be cultivated. The Tribunal stated: “The Tribunal was satisfied that the tile was not adequate to handle surface water, but was of the opinion that the proper grading of the surface along the route of the Drain to create a waterway would most economically alleviate the problem.” The Municipality did not construct the swale or shallow waterway until 1983.
[ 31 ] The flooding of the Plaintiffs’ lands continued after the new swale was constructed in 1983. The Municipality took the position that it had complied with the Drainage Act and that no further assistance would be forthcoming.
[ 32 ] The swale became degraded by cultivation and in 1991 the Municipality responded to a request for maintenance. A new profile, dated 1993, was developed by Spriet and Associates. In 1994, work on the swale was completed by a contractor selected by the Wolfe brothers. There were deficiencies and additional work was performed on the swale in 1995. As a result of a solicitor’s letter (May 11, 1995) complaining of a foot of water in the Plaintiffs’ basement, the swale was restored but it did not prevent the flooding of the Plaintiffs’ lands.
[ 33 ] In late 1996, a new Drainage Superintendent, Cliff Manchester, met with the Plaintiff Tom Ward in response to his complaints of flooding. The Plaintiff was advised that the Municipality could not dig up the Wards’ outlet to determine the cause of the flooding because the Drain was located on private land. It was the Municipality’s position that the Relief Drain was not part of the drainage work and that the Municipality could not enter upon private property to assess whether the Saxon Drain functioned in accordance with its design.
[ 34 ] On or about October 23, 1996, the Plaintiff Tom Ward, through his then counsel, Mr. Charles MacKenzie, Q.C., requested further information from the Township to clarify what he had been told by the Drainage Superintendent. Ms. Newitt, the Clerk–Treasurer, in her letter dated October 24, 1996, advised Mr. MacKenzie that there was an error in the original installation in 1975-76 of the Saxon Drain and that the Relief Drain had been extended downstream on Mr. Wolfe’s property. She advised that the Relief Drain was not included in the engineer’s report “so it is considered private” and that the Municipality has no authority over the drain and staff cannot go on private property to check if it was working.
[ 35 ] The Plaintiffs’ assert that they first learned about the construction error(s) and the installation of the Relief Drain upon receipt of this letter. The Plaintiffs also learned that their legal and protected outlet to the Saxon Drain was severed around 1974 or 1975 without their knowledge or consent. They realized that they had been assessed and paid for an outlet and an improved Drain, which had not been provided.
[ 36 ] In a resolution, dated December 6, 1999, the Municipality retained Raymond Dobbin P. Eng. (“Dobbin”) to investigate the engineering and efficiency of the Saxon Drain and to prepare a report pursuant to s. 78 of the Drainage Act .
[ 37 ] On May 12, 2000, the Plaintiffs commenced their action by issuance of a Notice of Action. In addition to commencing the civil action, counsel petitioned the Municipality pursuant to s. 4 of the Drainage Act for a drainage report. The Plaintiffs requested that an engineer other than Spriet Associates be appointed. The Municipality appointed Dobbin to prepare a new report.
[ 38 ] Dobbin submitted a preliminary report, dated November 1, 2000, an amended report dated February 3, 2001, and a final report, dated April 22, 2001 (“Dobbin report”), to the Municipality. Dobbin identified deficiencies in the design, construction and installation of the Saxon Drain in 1974-75 and subsequent years.
[ 39 ] Dobbin determined that the Saxon Drain had been installed approximately 6 - 7 inches too high throughout its length and was almost a foot too high at the top end. This meant the bottom inside level (the invert) of the new tile drain was approximately 7 inches above the Plaintiffs’ 8-inch tile which was the Plaintiffs’ sole outlet and point of connection to the newly constructed Saxon Drain. Accordingly, there was approximately a one inch overlap between two pipes that were designed to butt up against each other. The drains were buried beneath the Wolfe brothers’ land which covered over these deficiencies and prevented inspection by the Plaintiffs.
[ 40 ] The Dobbin report noted that the tile drain from the Ward property had been disconnected from the Saxon Drain when the Relief Drain was installed and suggested that the Relief Drain was not part of the municipal drainage system. Dobbin recommended that a second covered drain be installed to provide additional capacity for the Plaintiffs’ subsurface and surface waters. In 2001, the Municipality installed a new drain which alleviated the flooding problems the Plaintiffs had been experiencing since 1974.
[ 41 ] T he Wards retained John Kuntze P.Eng. in 2006 to assess and evaluate the revised DeVos report, dated February 19, 1974. In a report dated May 24, 2006, (“the Kuntze report”), he criticized the February 1974 DeVos report including: (1) the proposed reconstruction of the Saxon Drain did not provide an adequate outlet for lands north of Irish Drive because it provided less outlet capacity for the upper watershed than had been available prior to 1974; (2) the Saxon Drain was not constructed and installed in 1974-75 in accordance with the 1974 engineering design which further reduced the outlet capacity for the Wards; (3) there were deficiencies in the design, construction and installation of the 1974/1975 Relief Drain; (4) the Relief Drain “resulted in Ward no longer having a secure outlet to the Saxon Drain as his private drain was now crossing private lands south of Irish Drive”; and (5) the design and construction of the 1993 swale was not effective. It was Kuntze’s opinion that the Relief Drain created an additional problem since the Wards’ outlet had to traverse 700 feet of private drain which was not part of the Saxon Drain and the Tribunal’s order did not improve the surface water drainage outlet for Wards’ lands.
[ 42 ] DeVos did not file an affidavit to respond to Tom Ward’s allegations or to deny the expert reports filed on the motion.
III The Materials Filed and Counsels’ Submissions
[ 43 ] The Notice of Action was issued on May 12, 2000. The Defendants pled that the action was statute barred. The motion for summary judgment was scheduled for two days to commence on October 11, 2011. Counsel for the moving parties completed their submissions four days later on October 14, 2011. Counsel informed the Court that counsel for the Respondent would complete her submissions in one and one-half days and counsel for each applicant would require one hour for reply. The Trial Coordinator and counsel fixed December 20, 21, and 22, 2011 for the completion of submissions.
[ 44 ] On November 24, 2011, the Court wrote counsel requesting submissions on questions posed by the Court in relation to the tort of nuisance and whether the Defendants had a duty to disclose the deficiencies of the design, construction and installation of the Saxon Drain or the Relief Drain. All counsel filed written submissions prior to the return of the motion on December 20, 2011.
[ 45 ] The Court of Appeal’s decision in Combined Air Mechanical Services Inc. v. Flesch , 2011 ONCA 764 [“ Combined Air ”] was released prior to the continuation of the motion on December 20, 2011. The Court invited counsel to make submissions with respect to the interpretation and application of the Court of Appeal’s decision in Combined Air . Counsel made oral submissions at the continuation of the hearing on December 20, 2011.
[ 46 ] Counsel for the Plaintiffs responded to the Defendants’ summary judgment motion but she did not complete her responding submissions or the Plaintiffs’ cross-motion to amend the statement of claim with respect to “discoverability” and “fraudulent concealment” after three further days of argument. Plaintiffs’ counsel completed her submissions and counsel for the Defendants completed their reply submissions on January 9 and 10, 2012.
[ 47 ] Counsel agreed that the Court may grant leave to the Plaintiffs to amend their pleadings if the Court dismisses the Defendants’ summary judgment motion.
IV Summary Judgment
[ 48 ] The materials filed on the motion were voluminous. The attached schedule A lists the materials filed on the motion and submissions filed in response to the Court’s request to address questions on the issue of nuisance and whether any of the Defendants had a duty to inform the Plaintiffs of negligent acts or omissions or the severance of their legal outlet.
[ 49 ] The attached schedule B lists the transcripts of the examinations for discovery and the cross-examinations of nine persons over the course of fifteen days. The Plaintiff Tom Ward was examined for five days. The stack of materials filed was greater than two feet in height.
[ 50 ] One of the difficulties was the shifting grounds for and against the motions and the filing of additional materials, case law and statutory excerpts during the argument. Mr. Downs, counsel for the Wolfe brothers, opened his reply submissions as follows:
Now the arguments that I’m about to make your Honour will allow you to disregard at least ninety percent of the materials that have been filed on this motion and ninety percent of the submissions that have been made.
V Issues
[ 51 ] Counsel for the moving parties submitted that the motion should proceed on the grounds that the Plaintiffs’ claim was without merit; and/or that the issues can be fairly and justly resolved by the Court exercising its powers under rule 20.04(2.1).
(a) The Plaintiff’s Knowledge
[ 52 ] Counsel for A.M. Spriet and Spriet Associates submitted that the Defendants’ motion for summary judgment should be granted because the Plaintiffs knew or ought to have known the material facts for their claim and the identity of the tortfeasors in 1975. Counsel referred the Court to numerous excerpts from the discovery transcripts to support his clients’ position. Counsel did not bring to the Court’s attention other excerpts which showed that the Plaintiffs did not know the material facts prior to the letter from the Clerk-Treasurer of the Municipality to the solicitor Mr. McKenzie, dated October 24, 1996. Counsel asked the Court to disregard or minimize Tom Ward’s supplementary affidavit because it was self-serving.
[ 53 ] Counsel for the Plaintiffs relied upon Tom Ward’s affidavits and his evidence given during his examination for discovery that he did not know the material facts which were first disclosed to him in October 1996 and the following years. Counsel submitted that the Plaintiffs did not know about the deficiencies in the design, construction and installation of the tile in 1974-75 but gained that knowledge after October 1996 from the expert reports of Dobbin and Kuntze. She submitted that the Plaintiffs were unable to conduct an inspection of their outlet which was buried below the ground on the Wolfe brothers’ farms and were not told about the existence of the Relief Drain until October 1996.
[ 54 ] Counsel for A.M. Spriet and Spriet Associates also relied upon the limitation period set out in s. 46(1) of the Professional Engineers Act , R.S.O. 1990 c. P.28 (“ PEA ”). Counsel for the engineering firms submitted in the alternative that if the Plaintiffs learned around October 1996 about the deficiencies in the design, construction and installation of the Saxon Drain, the claim should have been initiated within one year of the Plaintiffs’ knowledge of the claim as required by s. 46(1) of the PEA . Counsel further submitted that s. 46(2), which allows a court to extend the limitation period, does not apply as was held by the Court of Appeal in Iroquois Falls Power Corporation v. Jacobs Canada Inc. , 2008 ONCA 320 .
[ 55 ] Counsel for the Wolfe Brothers submitted that the cause of action arises for the purpose of a limitation period when the material facts on which it is based have been discovered or ought to have been discovered by the Plaintiffs by the exercise of reasonable diligence, Central Trust Co. v. Rafuse , 1986 29 (SCC) , [1986] 2 S.C.R. 147 , at para. 77 . Counsel for the Wolfe brothers acknowledged that: (1) the 1974 design was defective because it was not designed to carry both subsurface and surface water from the Plaintiffs’ lands; (2) the Ward outlet to the Saxon drain was not properly provided for in the design; (3) DeVos made an error in establishing the benchmark which resulted in the new tile not being deep enough; and, (4) the Relief Drain performed in accordance with its defective design.
[ 56 ] Counsel for the Wolfe brothers submitted that the remedies for damages under the Drainage Act are limited to the Municipality as the Act does not contemplate a civil lawsuit against persons other than a Municipality. Counsel concluded that the Plaintiffs’ action has no chance of success against the engineer, contractor or the Wolfe brothers.
[ 57 ] Counsel for the Municipality submitted that the governing limitation period for the Plaintiffs’ claim is set out in s. 111 of the Drainage Act . Counsel submitted that the Plaintiffs did not serve a notice of the claim setting forth the grounds of the claim upon all persons concerned as required by s. 111(2) which requires the notice to be filed with the local registrar of the Superior Court and served within two years from the time the cause of complaint arose. Counsel submitted that the notice had to be given within two years of the receipt of Ms. Newitt’s letter, dated October 24, 1996, to Mr. McKenzie.
[ 58 ] Counsel for the Plaintiffs submitted that Tom Ward testified that he did not know that the newly constructed Saxon Drain was too high or that the Relief Drain had been installed. Tom Ward first learned about the severed outlet when Manchester from the Municipality told him sometime in 1996 that his subsurface water went down a private drain.
(b) The Nuisance Claim
[ 59 ] The Court asked counsel whether the facts as pled support a claim for nuisance and whether the pleadings would need to be amended to advance a claim of nuisance. Each counsel filed written submissions. Counsel for the Defendants submitted that the claim was not framed in nuisance but was framed in negligence. Counsel further submitted that the Plaintiffs would be required to amend their statement of claim to advance a claim in nuisance.
[ 60 ] Counsel for the Plaintiffs submitted that the Notice of Action specifies that the Plaintiffs claim against the Defendants is for negligence and nuisance. Counsel submitted that nuisance is claimed in paragraphs 28, 30, 31 and 34 of the Amended Statement of Claim. Counsel further submitted that a generous reading of the pleading as supplemented by the oral and documentary evidence would support a finding of nuisance.
(c) The Submissions on Combined Air
[ 61 ] The Court requested counsel to make submissions in relation to the Court of Appeal’s decision in Combined Air which was released after the Defendants had completed their initial submissions. Each counsel made oral submissions.
[ 62 ] Counsel for the Wolfe brothers submitted that the Defendants’ motion fit within the second type of summary judgment because the claim has no chance of success on a question of law. Counsel submitted that the Plaintiffs’ claims are governed by the Drainage Act and the Plaintiffs should have: (1) appealed to the Drainage Tribunal in relation to the quality of construction pursuant to s. 64 of the Act ; (2) sought an order from the Drainage Referee to compel the Municipality to maintain or repair the Saxon Drain pursuant to s. 79(1) of the Act ; or (3) requested the Municipality to issue an order against a land owner (presumably his clients) responsible for an obstruction pursuant to s. 80 of the Act .
[ 63 ] Counsel for the Municipality submitted that this motion falls within the second type of case in Combined Air because the two year limitation period under the Drainage Act expired prior to the commencement of this action. Counsel submitted that the October 24, 1996, letter from the Municipality to Mr. McKenzie Q.C. does not comply with the mandatory notice requirements of the Drainage Act .
[ 64 ] Counsel for A.M. Spriet and Spriet Associates adopts the submissions of counsel for Wolfe that the summary judgment should be granted under the second and third type of case suggested by the Court of Appeal. Counsel submitted that the Court can have a full appreciation of the evidence from productions and the cross-examinations of the witnesses.
[ 65 ] Counsel for the Plaintiffs submitted that the record was voluminous and contains conflicting evidence of what the Plaintiffs and others knew over a period of 25 years. Counsel submitted that the governing limitation period and when the limitation period started to run were genuine issues requiring a trial.
[ 66 ] Counsel for the Plaintiffs submitted that the Superior Court has jurisdiction to hear this action as the Drainage Act does not oust the Superior Court’s jurisdiction over the subject matter of the Plaintiffs’ claim. Counsel submitted that the Drainage Referee or the Drainage Tribunal do not have exclusive jurisdiction over the subject matter of this litigation. She also noted that the Defendants would not consent to transfer the action to a Drainage Referee under the Drainage Act .
VI Analysis and Decision
(a) Interpretation and Application of Combined Air
[ 67 ] The Court of Appeal’s judgment in Combined Air held that the purpose of a summary judgment motion is to provide a means for resolving litigation expeditiously and with comparatively less cost than is associated with a conventional trial. The Court stated that its decision marked a new departure and a fresh approach to the interpretation and application of the amended Rule 20 and that the purpose of the amended Rule was “to eliminate unnecessary trials, not to eliminate all trials” (para. 38).
[ 68 ] Counsel for the moving parties forcefully argued that no judge would be in a better position than the motions judge to determine the issue of what the Plaintiffs knew after the 1974/1975 construction. I disagree.
[ 69 ] A critical issue in this motion and at trial is Tom Ward’s knowledge of the material facts in dispute for the period commencing 1974 to the receipt of Ms. Newitt’s letter dated October 24, 1996. The Defendants argued that Ward knew or ought to have known about the deficiencies because the flooding of his property occurred for the first time after the reconstructed Saxon Drain was installed. It was Mr. Ward’s evidence that he did not know the material facts, such as the deficiencies in the design, construction or installation of the Saxon Drain or the construction and installation of the Relief Drain. Further, he did not have the ability to determine the material facts because the new tile of the Saxon Drain and of the Relief Drain were buried beneath the surface of the Wolfe brothers’ land and he was never informed that his tile was connected to the so-called Relief Drain.
[ 70 ] It is paradoxical that the Defendants forcefully argue that the Plaintiffs knew the material facts of the deficiencies of the newly constructed Saxon Drain and the installation of the Relief Drain and its purpose when the engineer DeVos, the contractor Wolfe, the responsible municipal officials and the landowner Wolfe did not inform the Plaintiffs of the critical information to allow the Plaintiffs to commence a claim against the engineering firm, the contractor Grant Wolfe, the Municipality and John Wolfe. It is the position of the Defendants that they did not inform the Plaintiffs of the deficiencies and the installation of the so-called Relief Drain because they did not have a duty to tell the Plaintiffs even though the Defendants knew or ought to have known that the flooding was caused by survey, design, construction and installation deficiencies and that the Plaintiffs and their children would be exposed to health and safety risks, crop losses and damage to their lands. The Defendants knew or ought to have known that these deficiencies caused damages and would continue to inflict damages upon the Plaintiffs and to their land unless corrective action was taken by the Defendants.
[ 71 ] A full appreciation of the disputed factual and legal issues cannot be determined on the record before the Court and can only be achieved at trial for the following reasons:
the motion record is voluminous;
there were eight witnesses;
credibility determinations are essential for the determination of the factual disputes;
different theories of liability are advanced against each of the Defendants;
different theories of defence are advanced by the Defendants;
different limitation periods apply to different Defendants which are dependent on disputed factual findings;
cross-claims exist between the Defendants and their evidence is contradictory in part; and,
the law is disputed.
[ 72 ] The submissions on the motion required nine days to complete which demonstrates the complexities of the factual and legal issues.
[ 73 ] A trial judge will benefit from an extensive exposure to the evidence and the unfolding of events covering a twenty-five year period, which will assist her or him to gain an appreciation of the issues. The trial judge will benefit from hearing the oral testimony of the witnesses on the issue of credibility which is difficult to appreciate on a written record. It is not possible to weigh the evidence of Tom Ward who was examined on discovery for five days on a printed record. In my view, a full appreciation of Tom Ward’s knowledge and other critical facts can only be achieved by a trial judge and cannot be resolved on a motion for summary judgment ( Combined Air paras. 42, 46, 47, 50, and 55 ).
[ 74 ] The evidence of other witnesses may become important at trial. DeVos was the engineer involved in the design, construction and installation of the Saxon Drain and the Relief Drain. He lives in Ontario and resides in Florida in the winter season. A.M. Spriet participated in the hearing before the Drainage Tribunal in 1979 and resides in Ontario. What each of them knew, when they knew it and what they did or did not do may be important to the ultimate outcome. I was not told why their evidence had not been provided to the Court on this motion. It is my view that the engineering firms did not “put its best foot forward” for this motion ( Combined Air para. 56 ).
[ 75 ] There is a dispute in the evidence between the contractor and the engineer as to who was responsible for the benchmark errors which may have resulted in the misalignment between the Plaintiffs’ outlet and the Saxon Drain depending on whose evidence the trial judge accepts. There is a dispute over whether the so-called Relief Drain is a private or public drain, which may affect which limitation period applies or the available remedies. These and other disputed factual and legal issues should be determined by the trial judge and should not be determined by a motions judge.
[ 76 ] The trial judge after a full appreciation of the evidence will be in a better position to make the decision on the limitation period or periods which apply to each Defendant. I find that this motion does not fit within the second or third type of case identified by the Court of Appeal in Combined Air as submitted by the Defendants.
(b) Disputed Factual and Legal Issues
[ 77 ] There are multiple disputed factual and legal issues. One disputed issue is the interpretation and application of the Drainage Act . Counsel for t he Defendants submit that the claim for the alleged negligent construction and installation of the Saxon Drain and the resulting damages are governed by the Drainage Act . It is the Defendants’ position that the two year limitation period set out in s. 111 of the Drainage Act applies to the Plaintiffs’ claim for damages. Counsel for the Defendants also rely upon the recent case of Hud v. West Nipissing (Municipality) , 2011 ONSC 6294 but the motions judge in Hud at paragraph 29 stated: “I have not been provided with, nor have I been able to find, any cases in which a failure to provide the notice required by s. 111 has been considered.”
[ 78 ] Counsel for the Plaintiffs submits that the reference to sections of the Drainage Act in their pleadings does not convert their civil tort action into a claim for damages under the Drainage Act . Counsel further submits that s. 111 should be interpreted in the context of the interrelated sections of the Drainage Act and the trial judge should rely upon section 120 of the Drainage Act which states:
Where an action is brought or is pending and the court in which the action is brought or is pending or a judge thereof is of opinion that the relief sought therein is properly the subject of a proceeding under this Act or that it may be more conveniently tried before and disposed of by the referee, the court or judge may, on the application of either party, at any stage of the action make an order transferring it to the referee on such terms as appear just, and the referee shall thereafter give directions for the continuance of the action before him or her.
This section applies only where the action is brought within the period limited by this Act for taking proceedings on notice [s. 111].
[ 79 ] It appears that section 120 of the Drainage Act recognizes that the Superior Court of Justice and the tribunal/referee have jurisdiction over a claim for damages for the negligent construction of drainage works and resultant flooding as was recognized by the motions judge in Hud v. West Nipissing ( supra , paras. 36-39 )
[ 80 ] The current version of the Drainage Act has a long statutory history dating back to the late 1800’s. Counsel filed vintage case law interpreting earlier versions of the Drainage Act or its predecessor legislation but counsel did not provide a copy of the corresponding statute. I informed counsel that corresponding statutes were required to assess the precedential value of the historical case law.
[ 81 ] There are other factual and legal disputes concerning the applicable limitation period. Counsel for the engineering firms submitted that the one year limitation period under s. 46(1) of the PEA was the governing limitation period for his clients. Counsel further submitted that s. 46(2) of the PEA , which permits a court to extend the limitation period, did not apply. Counsel relied upon the Court of Appeal’s decision in Iroquois Falls , supra , which held that s. 46(2) PEA was not a vested right .
[ 82 ] In Iroquois Falls , the plaintiff issued a claim in respect of acts or omissions that took place before the effective date (January 1, 2004) of the new Limitations Act , 2002 , S.O. 2002, c. 24 Sch. B. Moreover, the plaintiff did not commence the action until after the effective date had passed and thus the plaintiff could not rely upon s. 46(2) . The facts of this case are different. In this action, the Plaintiffs served and filed their Notice of Action in 2000 prior to the effective date of the new Limitations Act . This issue should be determined by the trial judge together with the other disputes as to the applicable limitation period.
[ 83 ] Another disputed factual and legal issue which may inform the limitation period is whether the engineer, the Municipality or the Wolfe brothers owed a duty to disclose the construction and installation deficiencies and the severance of his lawful outlet to the Plaintiffs. Counsel for the Defendants and the Plaintiffs disagreed as to whether the Defendants had a duty to disclose.
[ 84 ] DeVos’s April 23, 1975, letter to Moore is evidence that his certification of September 5, 1974, to the Ministry was not accurate as he knew or ought to have known that the recently constructed Saxon Drain had not been constructed in accordance with the plans and specifications which in turn caused flooding of the Plaintiffs’ lands. There is no evidence that DeVos notified the Wards or the Ministry of Agriculture and Food that the newly constructed Saxon Drain was not constructed according to the plans and specifications.
[ 85 ] The PEA , supra, and O. Reg. 480/09 set out the practice and duties of a professional engineer. The PEA defines the practice of engineering as:
any act of planning, designing, composing, evaluating, advising, reporting, directing or supervising that requires the application of engineering principles and concerns the safeguarding of life, health, property, economic interests, the public welfare or the environment, or the managing of any such act
[ 86 ] Section 72(1) of O. Reg. 480/09 defines negligence. It provides:
“negligence” means an act or an omission in the carrying out of the work of a practitioner that constitutes a failure to maintain the standards that a reasonable and prudent practitioner would maintain in the circumstances.
Section 72(2) states that for the purposes of the PEA and this Regulation,
“professional misconduct” means,
(a) negligence,
(b) failure to make reasonable provision for the safeguarding of life, health or property of a person who may be affected by the work for which the practitioner is responsible,
(c) failure to act to correct or report a situation that the practitioner believes may endanger the safety or the welfare of the public,
[ 87 ] The PEA acknowledges that a corporation holding a certificate of authorization is subject to the same fiduciary duty as a member. Section 20 states:
A corporation that holds a certificate of authorization has the same rights and is subject to the same obligations in respect of fiduciary, confidential and ethical relationships with each client of the corporation that exist at law between a member of the Association and his client.
[ 88 ] The trial judge will be in a better position to determine if the engineering firms, the Municipality or the contractor had a duty to disclose the deficiencies and the consequences, if any, for failing to disclose. A related factual issue is the basis for assessing the Plaintiffs for the improvements which DeVos claims were never designed to receive the Plaintiffs’ surface water.
[ 89 ] There are numerous statutes with arguably conflicting provisions and limitation periods. Attempting to determine their application, limitations and interrelationship involves knowledge and a full appreciation of a long, complicated factual history which is impossible to obtain on a documentary record, even one as voluminous as this one, notwithstanding the efforts of counsel over nine days of hearing. A trial judge with a full appreciation of the evidence will be in a better position than a motions judge to make findings of fact and determine these and the other disputed factual and legal issues.
[ 90 ] I dismiss the Defendants’ motion for summary judgment for the above reasons.
VII Amendments of Pleading
[ 91 ] The Court raised the issue of nuisance in the context of the different limitation periods for different torts. All counsel filed written submissions. The Defendants argued that the Amended Statement of Claim was not framed in nuisance. In Smith v. Inco Ltd. , 2011 ONCA 628 , 107 O.R. (3d) 321 , the Ontario Court of Appeal considered the tort of private nuisance in the context of a class action. The Court held that nuisance is an action distinct from negligence. Whereas negligence focuses on the defendant’s conduct, nuisance focuses on the effect on the plaintiff. As noted by the Court of Appeal in Inco at paragraph 40, “[T]he defendant’s conduct may be reasonable and yet result in an unreasonable interference with the plaintiff’s property rights.”
[ 92 ] The Court in Inco adopted a working definition of nuisance from St. Pierre v. Ontario (Minister of Transportation and Communication) , 1987 60 (SCC) , [1987] 1 S.C.R. 906 , at para. 10 :
A person, then, may be said to have committed the tort of private nuisance when he is held to be responsible for an act indirectly causing physical injury to land or substantially interfering with the use or enjoyment of land or of an interest in land, where, in the light of all the surrounding circumstances, this injury or interference is held to be unreasonable. [Emphasis added by the Court of Appeal]
[ 93 ] The Court held that there are two different types of private nuisance. The first occurs where there is actual physical injury to the land. The second occurs where there is interference with the plaintiff’s use and enjoyment of the land. The tort of nuisance seeks to balance competing interests in the use of land. The task for the trial judge is to determine which interest will prevail. The Court noted that this is done by asking “whether in all the circumstances the harm caused or the interference done to one person’s property by the other person’s use of his or her property is unreasonable”(para. 39).
[ 94 ] The approach to reasonableness differs based on whether there is physical damage to the land, or whether the interference is with the plaintiff’s use and enjoyment. Where the interference is with use and enjoyment, the court examines various factors to determine reasonableness. These may include, but are not limited to, the nature of the interference, the location, the severity of the harm, the utility of the defendant’s conduct and the sensitivity of the plaintiff. However, where there is physical damage, the damage itself is proof of unreasonable interference.
[ 95 ] As mentioned, the Plaintiffs claimed damages for nuisance in the Notice of Action. In paragraph 28 of the Amended Statement of Claim the Plaintiffs claim that their lands were flooded during heavy rains or seasonal melts which caused property damage, economic loss and inconvenience. Paragraph 30 further alleges that the Defendants’ failure to fulfill their statutory duties has caused loss of use and quiet enjoyment of the Plaintiffs’ property, inconvenience, damage to the structure of buildings and systems located on the Plaintiffs’ property and delays in spring planting. Paragraph 31 alleges that the Plaintiffs have incurred expenses due to the flooding and have paid for ineffective drainage works. The Plaintiffs allege that the Defendants’ failed to inform the Plaintiffs of the true reason for the failure of the Saxon Drain and that the failure to correct the deficiencies caused flooding and damages every year.
[ 96 ] In Roberts v. Portage la Prairie , 1971 128 (SCC) , [1971] S.C.R. 481 nuisance was alleged when polluted water from a sewage lagoon flooded the plaintiff’s land. The Supreme Court of Canada found that the nuisance was continuous and that an original cause of action arose each day that the nuisance remained unabated. The Court quoted with approval from R.F.V. Heuston, ed., Salmond on The Law of Torts , 15 th ed. (London: Sweet & Maxwell, 1969):
When the act of the defendant is a continuing injury, its continuance after the date of the first action is a new cause of action for which a second action can be brought, and so from time to time until the injury is discontinued.
[ 97 ] The Plaintiffs pled that their lands were flooded and the effect of the flooding. The Plaintiffs alleged that the Defendants caused the flooding of their property. The Defendants do not claim that they were not aware that the Plaintiffs’ lands were flooded.
[ 98 ] I adopt the functional approach to pleading set out by Lauwers J. in Ivany v. Financiere Telco. Inc. , 2011 ONSC 2785 , at paras. 26-37 and find that the Plaintiffs’ claim of nuisance does not spring from a new factual matrix. Since the Plaintiffs did not expressly refer to the tort of nuisance in the Amended Statement of Claim, I grant leave to the Plaintiffs to further amend their Amended Statement of Claim to better particularize the claim for nuisance.
[ 99 ] The evidence adduced on the motion shows that the Plaintiffs’ claim has merit and they have suffered damages for a quarter of a century as a result of the flooding caused by the design, construction and installation deficiencies of the Saxon Drain and the so-called Relief Drain. The Municipality told the Plaintiffs in 1996 of the deficiencies and corrected the problem in 2001 after the Notice of Action was served in May 2000.
[ 100 ] The Court grants leave to the Plaintiffs to further amend their Amended Statement of Claim to plead the discoverability rule and fraudulent concealment pursuant to the agreement of counsel. The amendments authorized by these reasons shall be made within 60 days.
VIII Directions
[ 101 ] The summary judgment motion has not advanced the litigation and has resulted in delaying the commencement of the trial. Some of the witnesses like DeVos are elderly and the trial should proceed as expeditiously as possible.
[ 102 ] In an effort to assist the parties and reduce costs, the affidavits of the parties and individuals on the motion and the cross-examinations may be used at trial in the same manner as examinations for discovery. Further discovery should be limited to matters not already covered in those affidavits and the cross-examinations.
IX Costs
[ 103 ] If counsel are unable to resolve the matter of costs, counsel for the Plaintiffs shall make submissions on costs limited to five pages plus appendices within 20 days of the release of this decision. Counsel for the defendants shall have 15 days to file responding submissions together with any appendices.
“Justice A. W. Bryant”
Justice A.W. Bryant
Released: February 23, 2012
Schedule A
Party
Date
Record
Thomas Ward and Jeanette Ward (Plaintiffs) Counsel: Valerie M’Garry
November 25, 2008
Trial Record
March 25, 2009
Motion Record of the Responding Parties, Thomas Ward and Jeanette Ward (Plaintiffs)
August 17, 2010
Motion Record
September 29, 2011
Factum of the Plaintiffs (Moving Parties)
September 29, 2011
Supplemental Factum of the Plaintiffs (Responding Parties)
September 29, 2011
Supplementary Affidavit of Thomas Ward
September 29, 2011
Book of Authorities of the Plaintiffs (Moving Parties)
October 5, 2011
Motion Record of the Responding Parties (Plaintiffs) to the Cross-Motions of the Defendants
October 5, 2011
Supplementary Motion Record of the Moving Parties (Plaintiffs)
October 5, 2011
Factum of the Plaintiffs Re: Summary Judgment and Limitations
October 5, 2011
Book of Authorities of the Plaintiffs Re: Summary Judgment and Limitations
December 12, 2011
Submissions of the Plaintiffs, Thomas Ward and Jeanette Ward
December 12, 2011
Book of Authorities
December 12, 2011
Correspondence from Valerie McGarry - Re: Answers/submissions of plaintiffs
December 13, 2011
Correspondence from Valerie McGarry case law and authorities brief and hard copy of submissions
December 14, 2011
Correspondence from Valerie McGarry re: nuisance
December 15, 2011
Correspondence from Valerie McGarry re: Combined Air Mechanical Service Inc. v. Flesch decision
December 16, 2011
Email from Valerie McGarry
December 16, 2011
Email from Valerie McGarry re: Drainage Act excerpts
December 16, 2011
Correspondence from Valerie McGarry re: response to Mr. Downs correspondence
The Corporation of the Municipality of Southwest Middlesex (Defendants) Counsel: Brian McCall
January 13, 2009
Motion Record
April 15, 2009
Supplementary Motion Record
February 15, 2011
Cross Motion
Case Brief of the Defendant, The Corporation of the Municipality of Southwest Middlesex
March 18, 2011
Brief of Authorities of the Defendants
March 23, 2011
Factum of the Defendant
December 12, 2011
Correspondence from Brian McCall – Re: Response to Request for Submissions of Southwest Middlesex
December 15, 2011
Correspondence from Brian McCall – Re: no intention to file further submissions
December 20, 2011
Memorandum and Case law
A.M. Spriet Associates Limited (Defendants) Counsel: Kris Hutton
Motion Record – Part I
Motion Record – Part II
March 7, 2011
Cross-Motion Record
October 6, 2011
Factum and Brief of Authorities of the Defendants, A.M. Spriet and Associates (Cross-Motion returnable October 11 and 12, 2011 for Drainage Referee)
October 6, 2011
Factum and Brief of Authorities of the Defendants, A.M. Spriet and Associates (Cross-Motion returnable October 11 and 12, 2011 for Summary Judgment)
December 13, 2011
Correspondence from Kris Hutton – Re: Response to Request for Submissions of A.M. Spriet
December 16, 2011
Correspondence from Kris Hutton – Re: no intention to file further submissions
December 16, 2011
Email from Kris Hutton re: intention to seek adjournment
John H. Wolfe and Grant Wolfe (Defendants) Counsel: M. Paul Downs
February 3, 2009
Motion Record
March 29, 2009
Supplementary Motion Record of the Defendants John H. Wolfe and Grant Wolfe
September 16, 2011
Second Supplementary Motion Record of the Defendants, John H. Wolfe and Grant Wolfe
September 26, 2011
Cross Motion of the Defendants
October 4, 2011
Brief of Authorities of the Defendants John H. Wolfe and Grant Wolfe
October 4, 2011
Factum
October 10, 2011
Supplementary Factum of the Defendants John H. Wolfe and Grant Wolfe
December 12, 2011
Correspondence from Paul Downs – Re: written submissions of defendants
December 14, 2011
Correspondence from Paul Downs – Re: Response to Justice Bryant’s Inquiries
December 15, 2011
Correspondence from Paul Downs – Re: no intention to make further submissions
December 16, 2011
Correspondence from Paul Downs – Re: Limitation period
December 19, 2011
Supplementary Brief of Authorities of the Defendants
Schedule B
Name of Witness
Date of Examination
Grant Wolfe
February 2, 2007
Grant Wolfe
March 30, 2009
Janneke Newitt
April 4, 2007
Janneke Newitt
June 8, 2009
Thomas Ward
February 1, 2007
Thomas Ward
February 2, 2007
Thomas Ward
June 3, 2008
Thomas Ward
October 10, 2008
Thomas Ward
July 8, 2009
Richard Tanner
April 17, 2009
William Galbraith
June 8, 2009
Ronald Crawford
June 8, 2009
Murray Jeffrey
June 8, 2009
John R. Spriet
April 11, 2007
John R. Spriet
June 6, 2007
John R. Spriet
October 20, 2009
John R. Spriet
March 8, 2011
John H. Wolfe
March 30, 2009
Valerie M’Garry
March 10, 2011
COURT FILE NO.: 34152
DATE: 2012-02-23
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N:
Thomas Ward and Jeanette Ward Plaintiffs - and - THE CORPORATION OF THE MUNICIPALITY OF SOUTHWEST MIDDLESEX, formerly known as The Corporation of the Township of Ekfrid, A.M. SPRIET ASSOCIATES LIMITED also known as SPRIET ASSOCIATES, SPRIET ASSOCIATES LONDON LIMITED and JOHN H. WOLFE AND GRANT WOLFE Defendants
REASONS FOR JUDGMENT Bryant J.
Released: February 23, 2012