ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 1477/09
DATE: 2012-10-01
BETWEEN:
948298 ONTARIO INC. Plaintiff/Responding Party – and – SREIT (MILTON MALL) LTD., PENRETAIL II LTD. and BENTALL RETAIL SERVICES LP Defendants
Douglas A. Quirt, Counsel for the Plaintiff/Responding Party
Elizabeth Bowker, Counsel for the Defendants/Moving Parties, Penretail II Ltd. and Bentall Retail Services LP
HEARD: October 1, 2012
REASONS FOR JUDGMENT
GRAY J.
[ 1 ] The defendants bring a motion for summary judgment, to dismiss the plaintiff’s action on the ground that the relevant limitation period has expired.
[ 2 ] The plaintiff says the limitation period has not expired, or at the very least the issue of discoverability should be left to trial.
[ 3 ] For the reasons that follow, I am satisfied that the limitation period has expired, and the action must be dismissed.
Background
[ 4 ] The plaintiff was the lessee of some premises in the Milton Mall, and operated a restaurant. The defendants, or at least some of them, were the landlord.
[ 5 ] The plaintiff had a number of complaints against the defendants. It is alleged that the defendants undertook construction in the mall that interfered with the plaintiff’s business. It is alleged that the defendants interfered with the plaintiff’s signage. It is alleged that other actions were taken that resulted in a severe decrease in the plaintiff’s business.
[ 6 ] Ultimately, the plaintiff decided that it could no longer carry on business.
[ 7 ] Mr. George Wright was examined for discovery on behalf of the plaintiff. On his discovery, Mr. Wright testified as follows:
- QUESTION: And you say there that, “Our sales over the last 11 days since the parking lot destruction and construction began, are down about 30 percent by about $8,200”. Sitting here today do you agree with that?
ANSWER: With some allowance for margin of error, in light of the immediacy with which these letters were prepared. Understand it’s like we hit an iceberg and we’re sinking, and I go to see Holly and I say, what are we doing, and she says put it in writing. And I put it in writing – to the best of my knowledge that’s fair, reasonable and accurate information.
- QUESTION: Did you think your business was sinking by July 2006?
ANSWER: No, I knew it was.
[ 8 ] A Notice of Action was issued on February 25, 2009.
[ 9 ] Mr. Wright swore an amended affidavit on September 24, 2012, in response to the motion for summary judgment. In his affidavit, Mr. Wright swore as follows:
Saturday, February 24, 2007 was the last full day of business of “Wright’s Corners”.
On Sunday, February 25, 2007 I removed the chattels from the leased premises at Milton Mall.
On Monday, February 26, 2007, I returned to the leased premises at approximately 8:30 a.m. in the company of Helen Craig and other staff members and we removed personal items.
On Monday, February 26, 2007, I left the keys for the premises on the bar and left.
When I originally swore to this affidavit, I did not consult a calendar regarding which day of the week February 24, 2007 fell on. Having reviewed a 2007 calendar, I am able to indicate that February 24, 2007 was a Saturday and that was the last full day of business.
I did not have the requisite knowledge that I was entitled to commence a proceeding for damages and that it was appropriate to do so, until “Wright’s Corners” was forced to vacate the leased premises on February 26, 2007.
[ 10 ] The defendants delivered a document entitled “Opening/Move Out Notice”, dated February 26, 2007, which recorded a “move-out date” of February 25, 2007, and which gives as a reason for the move-out as “tenant vacated premises”. There is no indication on the document that it serves as notice to the plaintiff that the lease is terminated, or that it records anything other than the date the tenant moved out.
Submissions
[ 11 ] Ms. Bowker, counsel for the defendants, submits that the relevant limitation period has expired, and the action should be dismissed.
[ 12 ] Ms. Bowker submits that the action must be commenced within two years of the discovery of the cause of action by the plaintiff. The action was commenced on February 25, 2009, and the plaintiff’s discovery of the cause of action occurred well before the period of two years before the action was commenced.
[ 13 ] The defendants submit that the plaintiff had many complaints about the actions of the defendants, and they all occurred well before the period of two years before the action was commenced. The fact that the plaintiff moved out of the premises on February 25 th or 26 th , 2007, does not mean the limitation period commenced then. Assuming that the plaintiff discovered its cause of action when it realized that the actions of the defendants meant that it could no longer continue in business, that occurred well before the date that the plaintiff moved out. According to Mr. Wright, on the plaintiff’s examination for discovery, he knew that the business was sinking by July, 2006. Accordingly, the plaintiff discovered that it had a cause of action by July, 2006, at the latest. Thus, the action should have been commenced by July, 2008, at the latest.
[ 14 ] Ms. Bowker relies primarily on Consumers Glass Co. Ltd. v. Foundation Co. of Canada Ltd./Compagnie Foundation du Canada Ltée et al (1985), 1985 159 (ON CA) , 51 O.R. (2d) 385 (C.A.).; Peixeiro v. Haberman , 1997 325 (SCC) , [1997] S.C.J. No. 31; Hamilton (City) v. Metcalfe & Mansfield Capital Corp. , 2012 ONCA 156 ; and Lipson v. Cassels Brock & Blackwell LLP (2011), 2011 ONSC 6724 () , 108 O.R. (3d) 681 (S.C.J.).
[ 15 ] Mr. Quirt, counsel for the plaintiff, submits that the limitation period did not expire prior to the issuance of the Notice of Action. If there is any doubt about the matter, the issue of discoverability should be left until trial.
[ 16 ] Mr. Quirt submits that it should be concluded that the plaintiff did not make a final decision that the business was adversely affected, irretrievably, by the actions of the defendants until the plaintiff moved out of the premises on February 25, 2007, or until the plaintiff had received the Move Out Notice on February 26, 2007. That being the case, the limitation period had not expired by the time the Notice of Action was issued on February 25, 2009.
[ 17 ] Mr. Quirt particularly relies on s. 5(1)(a)(iv) of the Limitations Act , 2002 , which provides that a claim is not discovered until the plaintiff knows that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it. In this case, the plaintiff would not have that knowledge until Mr. Wright made the decision that he could no longer continue in business, and that decision was not made until the plaintiff moved out of the premises.
[ 18 ] Mr. Quirt specifically relies on the dissenting reasons of Juriansz J.A. in Hare v. Hare (2006), 2006 41650 (ON CA) , 83 O.R. (3d) 766 (C.A.); and Everding v. Skrijel (2010), 2010 ONCA 437 () , 100 O.R. (3d) 641 (C.A.).
Analysis
[ 19 ] Pursuant to Combined Air Mechanical Services Inc. v. Flesch (2011), 2011 ONCA 764 () , 108 O.R. (3d) 1 (C.A.), I should not grant summary judgment unless I am convinced that I can do so with a full appreciation of the issues and the evidence without the advantage of a trial. I am persuaded that I can do so here.
[ 20 ] Sections 4 and 5 of the Limitations Act , 2002, provide as follows:
Basic limitation period
- 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.
Discovery
- (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; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).
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 proved.
Demand obligations
(3) For the purposes of subclause (1) (a) (i), the day on which injury, loss or damage occurs in relation to a demand obligation is the first day on which there is a failure to perform the obligation, once a demand for the performance is made.
Same
(4) Subsection (3) applies in respect of every demand obligation created on or after January 1, 2004.
[ 21 ] It is clear from the authorities relied on by the defendants that the discovery of a cause of action occurs when a plaintiff knows that the defendant has done something to cause him or her harm, and is aware that some damage has occurred: see Peixeiro , supra , at para. 18 , and Hamilton (City) , supra , at para. 61 . Neither the extent of damage nor the type of damage need be known.
[ 22 ] In this case, the plaintiff’s discovery of its cause of action occurred, at the very latest, on the date it realized that it could no longer carry on business. I do not accept the plaintiff’s argument that this occurred on the date the plaintiff moved out of the premises. Common sense would suggest that the plaintiff would have decided it could no longer carry on business some time before the date it moved out, and a reasonable interpretation of Mr. Wright’s examination for discovery would suggest that he knew that that was the case in July, 2006.
[ 23 ] As discussed in Combined Air, supra, at para. 56, each side must put its best foot forward. If it was the case that Mr. Wright had not made a decision to close the business until the date the plaintiff moved out of the premises on February 25, 2007, one would have expected him to say so. However, nowhere in his affidavit does he say so.
[ 24 ] It is clear, in my view, that the plaintiff discovered its cause of action some considerable time before February 25, 2007. Accordingly, the plaintiff commenced this action well outside the limitation period prescribed by s. 4 of the Limitations Act, 2002 . Thus, the action must be dismissed.
Disposition
[ 25 ] For the foregoing reasons, the action is dismissed.
[ 26 ] As agreed by counsel at the hearing of the motion, costs are awarded to the successful party, in this case the defendants, fixed in the amount of $4,000, all-inclusive.
GRAY J.
Released: October 1, 2012
COURT FILE NO.: 1477/09
DATE: 2012-10-01
ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: 948298 ONTARIO INC. Plaintiff – and – SREIT (MILTON MALL) LTD., PENRETAIL II LTD. and BENTALL RETAIL SERVICES LP Defendants REASONS FOR JUDGMENT Gray J.
Released: October 1, 2012