ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-09-0534
DATE: 20130321

BETWEEN:

GARY GRANT

Plaintiff/Responding Party

– and –

THE TOWN OF COLLINGWOOD

Defendant/Moving Party

G. Grant, Self-Represented (Moving Party Cross Motion)

P. Harrington, for the Defendant/Moving Party (Responding Party Cross Motion)

HEARD: February 15, 2013

REASONS FOR DECSION

DiTOMASO J.

INTRODUCTION

1The Corporation of the Town of Collingwood (“Town”) seeks an order pursuant to rule 21.01(3)(b) of the Rules of Civil Procedure dismissing this action on the grounds that the plaintiff Gary Grant (“Mr. Grant”) is without legal capacity to maintain this action. The Town submits that Mr. Grant does not have a personal cause of action. Rather, the cause of action is a corporate one. To the contrary, Mr. Grant maintains that his cause of action is personal not corporate and that he is entitled to pursue his claims in this action.

2By way of cross-motion, Mr. Grant again asserts his entitlement to pursue his personal cause of action. However, if the company in which he is involved with Mr. Saks is required to be added to this litigation, then he seeks an order adding that company as a party plaintiff.

3In response to the cross-motion, the Town advances a limitation argument. Further, adding the company as a party plaintiff would require a corporate resolution or by-law which would not be forthcoming in this case given the acrimonious dispute in another action between Mr. Grant and Mr. Saks.

THE TOWN’S MOTION - BACKGROUND

4For easy reference the chronology of events in the Grant action against the Town is attached to these reasons and identified as Appendix A.

5The narrative of the facts in this matter is largely not in dispute. Those facts are summarized in the Factum of the Town in addition to which Mr. Grant by way of submission added additional facts.

6The factual context is as follows.

7According to Mr. Grant’s Statement of Claim, in December 2007, Mr. Grant entered into an Agreement of Purchase and Sale (the “P & S Agreement”) with Mr. Roy Edward Johnson (“Mr. Johnson”) to purchase the Site.

8On February 27, 2008, Mr. Grant filed an application pursuant to section 41 of the Planning Act for site plan approval to permit the redevelopment of the Site. Mr. Grant applied for site plan approval as agent for Mr. Johnson, who was still the owner of the Site at that time.

9On March 7, 2008, Mr. Grant, Mr. Johnson, and the Town entered into the Site Plan Agreement. The Site Plan Agreement identified Mr. Grant as the prospective “purchaser” of the Site.

10On March 13, 2008, the Site Plan Agreement was registered on title to the Site.

11On January 28, 2009, the Company was incorporated.

12On February 3, 2009, title to the Site transferred directly from Mr. Johnson to the Company. A title search shows that Mr. Grant at no time held title to the Site in his personal capacity.

13Upon transfer of title to the Company, the Company assumed all rights and obligations under the Site Plan Agreement. Section 20 of the Site Plan Agreement provides that the Agreement shall be registered upon title to the Site and states that the covenants, agreements, conditions, and undertakings provided for in the Agreement shall run with the lands and shall be binding upon any successors and assigns.

14On April 16, 2009, Mr. Grant commenced an Application against the Town. The Application sought an Order determining that Mr. Grant was not required to enter into the Site Plan Agreement and that Mr. Grant was under economic duress when he entered into the Site Plan Agreement. The Application further sought the return of all securities posted with the Town pursuant to the Site Plan Agreement as well as an award of damages in the amount of $200,000 “for costs that were attributed to and incurred by [Mr. Grant] through entering and signing the Site Plan Agreement...”

15On July 28, 2009, the Town moved to convert Mr. Grant’s Application into an Action. This motion was granted by me.

16On July 30, 2010, Mr. Grant served a Notice of Motion to Amend. In response, on August 10, 2010, the Town served a Notice of Cross-Motion for Summary Judgment. The Motion and Cross-Motion were heard by me on August 24, 2010. I granted the Motion to Amend and dismissed the Cross-Motion for Summary Judgment.

17On September 14, 2010, Mr. Grant served an Amended Statement of Claim. The Amended Statement of Claim adds claims of $400,000 in aggravated damages for “mental stress” as well as $1,000,000 in punitive damages “as a result of the egregious and oppressive actions of the [Town]”. The Town served its Amended Statement of Defence on October 6, 2010, denying all claims.

18For the next year and a half, the Town was not contacted by and did not receive any correspondence from Mr. Grant.

19During this period of inactivity, Mr. Grant was involved in a separate action against Mr. Uri Saks (“Mr. Saks”), who is the majority shareholder as well as a director and officer of the company (“Grant and Saks I”). A decision in Grant v. Saks I was issued by Justice A.M. Mullins on May 18, 2012.

20In her decision, Justice Mullins made the following findings of fact:

(a) Under the P & S Agreement between Mr. and Mr. Johnson, Mr. Grant was to be a purchaser “in Trust” for the Company.

(b) Mr. Grant entered into a lease agreement with TSC Stores in respect of the Site “in Trust” for the Company.

(c) Mr. Grant is a minority shareholder and director/officer of the Company.

(d) The Company did not authorize Mr. Grant to commence a proceeding against the Town respecting the Site or the Site Plan Agreement.

21Mr. Grant added that on January 5, 2008 he picked up the building permit in respect of the first phase of the work. All the work was completed in respect of the first permit. Over $100,000 had been spent in connection with this work.

22The second building permit related to interior renovations. The drawings for those renovations took a lot longer to prepare. The building department for the Town advised that the building permit was approved and ready to be picked up. However, it was not released because the Town required a Site Plan Agreement.

POSITIONS OF THE PARTIES

Position of the Town

23The Town submits that Mr. Grant is without legal capacity to maintain this action and relies upon rule 21.01(3)(b) of the Rules of Civil Procedure.

24The Company has not consented to being added as a Plaintiff to Mr. Grant’s claim. The available record conclusively demonstrates that the Company has never authorized Mr. Grant to sue the Town in respect of the Site Plan Agreement. Mr. Grant further admits that he does not have the Company’s consent.

25Regardless, the Limitations Act, 2002 precludes the addition of the Company at this late stage, even if the Company was a willing Plaintiff. Any cause of action accruing to the Company in respect of the Site Plan Agreement has long since expired.

26Accordingly, the Town submits that Mr. Grant’s cross-motion be dismissed with costs.

27The Town relies upon the facts as outlined in its Factum dated February 5, 2013. In addition, the Town notes the following additional facts arising from Mr. Grant’s affidavit on his cross-motion.

28Mr. Grant was advised (by his legal counsel at the relevant time) that the requirement to enter into a Site Plan Agreement could be challenged by way of motion before the Ontario Municipal Board (pursuant to subsections 41(4.2) and (4.3) of the Planning Act). Due to timing constraints imposed by Mr. Grant’s private arrangements with his venture partner (Mr. Uri Saks) and his prospective tenant (TSC Stores), Mr. Grant opted not to pursue relief from the Ontario Municipal Board.

29It is submitted that Mr. Grant purchased lands in trust for a company, entered into a lease agreement in trust for a company and entered into Site Plan Agreement in trust for a company. When Mr. Grant sought site plan approval, he acted as agent for the former owner. When the lands were eventually sold, they were sold directly to the company. The Town submits that the company garnered all the benefits and obligations of the Site Plan Agreement and not Mr. Grant. He does not have standing to sue in respect of the Site Plan Agreement.

30Mr. Grant is a minority shareholder, director and officer of the company and has not been authorized by the company to commence this action.

31Accordingly, the Town seeks dismissal of Mr. Grant’s action.

Position of Mr. Grant

32Mr. Grant submits that his claims are not corporate claims but rather they are personal claims. The company did not have authority to sue the Town but Mr. Grant had the implied consent of Mr. Saks to commence this action.

33The company has not paid one penny into the project and therefore has no claim. Those funds came from Mr. Saks and Mr. Grant. He sues in his personal capacity to void the Site Plan Agreement as well as for costs associated with the time spent to correct the Site Plan Agreement, delay, economic duress, malfeasance and abuse of public office.

34Mr. Grant takes the position that he executed the Site Plan Agreement under economic duress. All attempts to dissuade the Town from insisting upon site plan control and approval failed. Despite his protest and despite hiring counsel, the Town would not relent. Mr. Grant executed the Site Plan Agreement as he felt he had no choice and he felt that he was being held to ransom by the Town. The Site Plan Agreement included further expenditures to be made at the Town’s insistence which Mr. Grant paid.

35Mr. Grant submits that he has a personal claim to recover certain monies which he paid as well as a personal claim for damages including a claim for aggravated and punitive damages in the amount of $1.4 million.

36He argues that he does have standing and that the Town’s motion ought to be dismissed.

ISSUE

37The sole legal issue to be decided on the Town’s motion is whether Mr. Grant has standing to maintain this action.

ANALYSIS

38The Town’s seeks a determination pursuant to rule 21.01(3)(b) of the Rules of Civil Procedure which provides:

21.01(3) A Defendant may move before a judge to have an action stayed or dismissed on the ground that,

(b) Capacity – the plaintiff is without legal capacity to commence or continue the action...

39The legal test to be applied on these types of motions has been affirmed by the Supreme Court of Canada and adopted by the Ontario courts. The test is whether it is plain and obvious that the Statement of Claim discloses no reasonable cause of action.¹

40A determination of legal capacity pursuant to rule 21.01(3)(b) is not affected by what the claim “thought” his or her legal status was. Either the plaintiff had the legal capacity to commence the action or he/she did not.²

41The Court of Appeal has determined that a Site Plan Agreement is not like a regular contract. Instead, a Site Plan Agreement operates primarily as a planning instrument.

42The Agreement secures the performance of the land owner in carrying out the conditions under which site plan approval was granted by the municipality. The Agreement is registered on title, runs with the land and binds the owner of the land.³

43I find that Mr. Grant has not nor has ever been the owner of the site. Justice Mullins in Grant v. Saks I, found that Mr. Grant entered into the purchase and sale agreement in his capacity as a purchaser “in Trust” for the Company. At that time, Mr. Grant had beneficial title to the property, not legal title.⁴

44Once the Company was incorporated, legal title to the Site passed directly from the Site’s previous owner, Mr. Johnson, to the Company. As trustee, Mr. Grant would have only been bound by the provisions of the purchase and sale agreement prior to the Company’s incorporation.

45Title to the Site was transferred to the Company on February 3, 2009. Upon that transfer, the Company assumed all rights and obligations under the Site Plan Agreement.

46Mr. Grant commenced this action against the Town in his personal capacity on April 16, 2009. Mr. Grant submits that he had the implied consent of the majority shareholder Mr. Saks to commence proceedings against the Town. I do not agree that he had any such implied consent. To the contrary, Mr. Saks did not wish to pursue action against the Town by virtue of the “settlement agreement” dated January 21, 2009.⁵

47Further, there were no corporate resolutions or by-laws authorizing Mr. Grant to commence this action in any capacity against the Town. Rather, the evidentiary record shows that Mr. Grant was embroiled in lengthy and acrimonious litigation with Mr. Saks which would have made entirely unlikely the generation of any corporate documents authorizing commencement of litigation against the Town on a corporate basis. There is no consent from Mr. Saks or the Company implied or otherwise. There were no corporate resolutions or by-laws authorizing any commencement of action against the Town.

48Nevertheless, Mr. Grant submits that quite apart from the argument of implied consent (which I reject) he had the personal capacity to commence these proceedings and did not require corporate authorization because his claims were personal. He is personally aggrieved and he has invested personal monies. He alleges economic duress and he seeks punitive and aggravated damages.

49The relief sought by Mr. Grant are set out at Tab I commencing at page 75 of the Town’s Motion Record. At this Tab can be found Mr. Grant’s Amended Statement of Claim. The Amended Statement of Claim really takes the form of Mr. Grant’s Notice of Application found at Tab F of the plaintiff’s Motion Record commencing at page 46. The only difference between the two documents is that in respect of the Amended Statement of Claim, Mr. Grant had added handwritten additions to include a claim for aggravated and punitive damages totally $1.4 million, and a claim for damages for mental stress and punitive damages for the Town’s actions described as reprehensive, vindictive, harsh and high-handed. He also sought damages for economic duress. His Amended Statement of Claim further included other paragraphs which might well be characterized as evidence or argument but the relief sought was essentially the same as advanced in his Notice of Application but for the handwritten additions.

50This brings us to the essential question to be determined on this motion which is whether Mr. Grant has the capacity to maintain this action in his personal capacity.

51It is clear from a review the relief sought in his Amended Statement of Claim that Mr. Grant is seeking to have the Site Plan Agreement declared void and an award of damages against the Town to be paid to Mr. Grant in his personal capacity.

52At the time that Mr. Grant commenced his action against the Town, I find that he did not possess any personal rights, nor was he burdened with any of the personal obligations under the Site Plan Agreement. Rights and obligations of the Site Plan Agreement belonged, at that time, to the Company. Such remains the case today.

53I find that for the following reasons that Mr. Grant cannot sue upon the Company’s Site Plan Agreement.

54I find that the rule Foss v. Harbottle, as enunciated by Justice LaForest in Hercules Management is applicable to the facts of this case:

The rule in Foss v. Harbottle provides that individual shareholders have no cause of action for any wrongs done to the corporation and that if an action is to be brought in respect of such losses, it must be brought either by the corporation itself (through management) or by way of a derivative action.⁶

55The Court of Appeal has confirmed that a shareholder of a corporation cannot personally maintain a claim for damages sustained by his or her corporation. In Meditrust Healthcare Inc. v. Shoppers Drug Mart, the Court of Appeal held as follows:

The rule in Foss v. Harbottle provides simply that a shareholder of a corporation – event a controlling shareholder or the sole shareholder – does not have a personal cause of action for a wrong done to the corporation. The rule respects a basic principle for corporate law: a corporation has a legal existence separate from that of its shareholders. See Salomon v. Salomon & Co. Ltd., [1897] A.C. 22, 66 L.J. Ch. 35 (H.L). A shareholder cannot be sued for the liabilities of the corporation and, equally, a shareholder cannot sue for the losses suffered by the corporation.⁷

56I find as a minority shareholder, director and officer of the company, Mr. Grant does not have a personal cause of action for an alleged wrong done to the company. Further, as it is the company that owns this Site and bound by the Site Plan Agreement, Mr. Grant cannot seek damages from the Town in his personal capacity for alleged wrongs associated with Site Plan Agreement.⁸

57On October 12, 2011, Mr. Grant brought a motion against Mr. Saks (“Grant v. Saks II”) seeking, inter alia, the following relief:

...that the parties agree forthwith on a mutual experienced planning lawyer to continue on with the action against the Town of Collingwood commenced by the applicant and any proceeds won, to be split between the parties in the percentage of their share of ownership...

Justice S.E. Healey dismissed this requested relief. Regardless, the relief requested by Mr. Grant demonstrates that Mr. Grant knows that he is not entitled to the proceeds of the within action in his personal capacity.⁹

58Further, in his submissions, Mr. Grant stated that if he was successful he does not get to keep any money because he and Mr. Saks were joint venturers in respect of this project. He cited the Partnership Act, 1990 and his partnership with Mr. Saks as the basis for advancing these claims in this action both personal and as part of the partnership.

59I reject Mr. Grant’s argument that somehow he is entitled to commence this action against the Town on behalf of his partnership with Mr. Saks. There is no suggestion anywhere in the Amended Statement of Claim that Mr. Grant is suing the Town in anything other than in his personal capacity. I find his submissions on this motion and the relief requested by Mr. Grant before Justice Healey (Grant v. Saks II) underline the fact that Mr. Grant knows he is not entitled to the proceeds of this action in his personal capacity.

60An action on behalf of a corporation may only be commenced with the authority of a resolution on the corporation’s directors or shareholders. Courts have concluded that in “any proceeding brought to redress a wrong done to the corporation or to recover property of the corporation, or to enforce rights of the corporation, the corporation is the only proper plaintiff.”¹⁰

61Mr. Grant, as a minority shareholder and director of the Company, required authorization to commence the within action – particularly where the relief being requested is to void the Site Plan Agreement. As found by Justice Mullins In Grant v. Saks I, Mr. Grant did not have authorization from the Company or the majority shareholder to commence the within action.¹¹

62In addition, in Grant v. Saks II, Mr. Grant also sought the following:

An order the [Mr. Grant] be paid reasonable fees for his expended time relative to [the within action]; or

If [Mr. Saks] refuses to agree within 10 days of the hearing of this motion to [the Company] taking over the action against Collingwood, an order is requested that [Mr. Grant] be allowed to continue on his own with the Collingwood action, and as such be responsible to pay for all aspects of the action and in turn, receive and keep any proceeds awarded...¹²

63The foregoing clearly shows that Mr. Grant is aware that he does not have the requisite authorization from the Company to continue the within action. Mr. Grant sought a court order authorizing him to continue the action in his personal capacity. This order was denied by Justice Healey in December 2011 (during Mr. Grant’s period of inactivity in respect of the within action).

64A more recent decision by Justice Healey was released on November 15, 2012 (“Grant v. Saks III”) regarding a motion brought by Mr. Grant against Mr. Saks requesting that Mr. Saks forfeit fifty percent of his shares in the Company to Mr. Grant. Justice Healey noted that Mr. Grant has commenced a “shotgun” procedure under the Ontario Business Corporations Act, R.S.S. 1990, c.B.16.¹³

65For reasons best known to Mr. Grant, his action against the Town is somehow related to Mr. Grant’s ongoing and bitter litigation with Mr. Saks.

66I am not called upon to make any rulings here in respect of Mr. Grant’s ongoing dispute with Mr. Saks and regardless of the outcome of that litigation, I find that at the time Mr. Grant commenced his action against the Town, he did not have standing in his personal capacity to sue the Town for recession of the Site Plan Agreement or claim damages in respect of the Site. In essence, this is the nature of his claim as evidenced by the Amended Statement of Claim. It is also clear that the Company had never authorized Mr. Grant to sue the Town on its behalf.

67Regarding the Site or the Site Plan Agreement, the Town does not admit any liability to Mr. Grant or to the Company. I find that any claim against the Town pertaining to the Site or the Site Plan Agreement properly belongs to the Company and not Mr. Grant.

68I agree with the submission of counsel for the Town that if Mr. Grant wishes to bring a personal claim for damages or mental distress associated with the Site or the Site Plan Agreement, Mr. Grant’s claim is properly against either Mr. Johnson (for whom Mr. Grant personally acted as agent) or the Company (for whom Mr. Grant personally acted as trustee). Regardless, Mr. Grant has no personal claim against the Town. I find it is plain and obvious that Mr. Grant has disclosed no reasonable cause of action in his Amended Statement of Claim.

DISPOSITION

69For the above reasons, Mr. Grant’s Amended Statement of Claim is hereby struck and his action is dismissed.

MR. GRANT’S CROSS-MOTION

70Mr. Grant and counsel for the Town rely on their previous arguments in respect of this motion.

71Mr. Grant seeks to dismiss the Town’s motion and seeks an order adding the Company as a party plaintiff “if the court determines that is a requirement and a necessity”.

72The Town is opposed as the Company has not consented to being added as a plaintiff to Mr. Grant’s action. Regardless, the Limitations Act, 2002 would preclude the addition of the Company at this late stage, even if the Company was a willing plaintiff.

Background

73The Town relied upon the facts outlined in its Factum on the Town’s motion above.

74In addition, the Town noted the following additional facts arising from Mr. Grant’s affidavit on the cross-motion:

(a) Mr. Grant was advised (by his legal counsel at the relevant time) that the requirement to enter into a Site Plan Agreement could be challenged by way of a motion before the Ontario Municipal Board (pursuant to subsections 41(4.2) and 4.3) of the Planning Act). Due to timing constraints imposed by Mr. Grant’s private arrangements with his venture partner (Mr. Uri Saks) and his prospective tenant (TSC Stores), Mr. Grant opted to not pursue relief from the Ontario Municipal Board.

(b) Instead, Mr. Grant decided to “...sign the [Site Plan Agreement] and then sue Collingwood after TSC had opened for business.” Mr. Grant has thus admitted that he entered into the Site Plan Agreement in bad faith.

(c) Mr. Grant further admits that despite his plan to sue the Town, he spent “well over $100,000” performing part of the site work required by the Site Plan Agreement. This site work was undertaken prior to Mr. Grant initiating his claim against the Town and constitutes partial performance under the Site Plan Agreement.

(d) Mr. Grant confirms that TSC Stores did not terminate its lease for the Site and, in fact, took possession of the Site in May 2008. A TSC Store continues to operate on the Site today.

(e) Mr. Grant attests that in January 2009, he entered into a “settlement agreement” with Mr. Saks to resolve portions of their ongoing dispute. One of the terms agreed to by Mr. Grant was that he would not start an action against the Town. Mr. Grant broke this covenant. These facts are confirmed in the findings of Justice Mullins in Grant v. Saks I.¹⁴

(f) The fact Mr. Grant breached his covenant with Mr. Saks disproves Mr. Grant’s assertion that he had Mr. Saks’ “implied consent” to sue the Town.

(g) Mr. Grant goes on to confirm, at paragraph 42 of his affidavit, that the Company has not given any approval to his commencing or maintaining the within action against the Town. Again, this is consistent with the findings of Justice Mullins in Grant v. Saks I.¹⁵

POSITIONS OF THE PARTIES

Position of Mr. Grant

75Mr. Grant submits that the matter ought to proceed to trial. If the court finds that the Company ought to be added as a plaintiff then he asks the court to do so at this time. He asserts that he still can maintain a personal claim without being owner of the property. The Town’s motion ought to be dismissed and if necessary and required, the Company ought to be added as a party plaintiff.

Position of the Town

76The Town submits that the addition of the Company as a plaintiff requires the Company’s consent. There is no corporate consent and the plaintiff is not close to obtaining it given Mr. Grant’s litigation with Mr. Saks. In addition, the Town submits that it would not be reasonable to await the outcome of Mr. Grant’s other legal proceedings. Presently, he does not presently have legal standing to maintain this action.

77In addition, the Town relies upon subsection 21(1) of the Limitations Act, 2002 in support of its argument that the two year limitation period for adding the Company as a plaintiff to this action has expired. Accordingly, Mr. Grant’s cross-motion ought to be dismissed.

78The question to be determined is whether the Company can be added as a party plaintiff at this time.

ANALYSIS

A. Rule 5.04(3) Requires the Company’s Consent

79Rule 5.04(3) of the Rules of Civil Procedure states that no person shall be added as a Plaintiff or an Applicant unless the person’s consent is filed.

80Mr. Grant has failed to file any resolution of the Company confirming its consent to being added as a Plaintiff. In fact, the opposite is true – Mr. Grant has confirmed that he does not have the Company’s consent.

81Mr. Grant’s ongoing litigation against Mr. Saks confirms that the Company’s consent will not be forthcoming unless, through other legal proceedings, Mr. Grant seizes control of the Company.

82Any suggestion that the addition of the Company as a party plaintiff somehow must await the outcome of Mr. Grant’s other legal proceedings is neither fair nor reasonable and I reject same. Mr. Grant does not have legal standing to maintain this action and absent a remedy granted by another panel of this Court, he will not obtain the consent of the Company to being added or substituted in Mr. Grant’s place. This conclusion is evidenced by the evidentiary record referenced above and again, by virtue of the ongoing and bitter litigation between Mr. Grant and Mr. Saks.

B. The Limitations Act Bars Adding the Company at this Stage

83Subsection 21(1) of the Limitations Act, 2002 applies to Mr. Grant’s request to add the Company to his claim:

Adding party

21(1) If a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding.¹⁶

84The Court of Appeal has confirmed that rule 5.04 must be interpreted and applied in accordance with subsection 21(1) of the Limitations Act, 2002. If a claimant’s limitation period has expired, the claimant cannot be added as a plaintiff to an existing action.¹⁷

85The Company came into existence on January 28, 2009. Six days later, on February 3, 2009, title to the Site was transferred to the Company. The Site Plan Agreement was registered on title when the Company acquired the Site. The Company accordingly had notice of the Site Plan Agreement as of February 3, 2009.

86Mr. Grant initiated his original claim against the Town two months later on April 16, 2009. Mr. Grant’s claim was converted to an action on July 28, 2009, and was later amended by Mr. Grant on September 14, 2010.

87The foregoing chronology confirms that it has been well over two years since the Company acquired its rights and obligations under the Site Plan Agreement. It has also been well over two years since Mr. Grant initiated the within proceedings. It has even been over two years since Mr. Grant last amended his Statement of Claim.

88The two-year limitation period for adding a Company as a plaintiff to the within action has expired. Consequently, even if Mr. Grant could someday obtain the consent of the Company to become a plaintiff, the addition of the Company is barred by subsection 21(1) of the Limitations Act, 2002.

DISPOSITION

89For these reasons, Mr. Grant’s cross motion is hereby dismissed.

90The parties have agreed that costs will be determined by way of written submissions. The parties shall exchange a two page concise summary in respect of costs within the next 14 days together with Costs Outline, Bill of Costs and any supporting authorities. Those materials are to be filed with the my judicial assistant at Barrie.

DiTOMASO J.

Released: March 21, 2013

Footnotes

1. 1Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959 at para. 33; UBS Wireless Services Inc. v. Inukshuk Wireless Partnership, [2008] O.J. No. 1704 (Ont. S.C.J.) at paras. 10-11
2. 2Jackson v. Toronto Police Assn., {2008} O.J. No. 5309 (Ont. S.C.J.) at para. 20
3. 3Hi-Rise Structures Inc. v. Scarborough (City) (1992), 1992 7739 (ON CA), 10 O.R. (3d) 299, 1992 CarswellOnt 497 (Ont. C.A.) at para. 15
4. 4Grant v. Saks, 2010 ONSC 552 (Ont. S.C.) at para. 7
5. 5Grant Affidavit at page 7, paras. 31-33
6. 6Hercules Management Ltd. v. Ernest & Young, 1997 345 (SCC), [1997] 2 S.C.R. 165 (S.C.C.) at para. 59
7. 7Meditrust Healthcare Inc. v. Shoppers Drug Mart (2002), 2002 41710 (ON CA), 61 O.R. (3d) 786 (Ont. C.A.) at para. 12; Dickinson v. Toronto & Region Conservation Authority, [2003] O.J. No. 6308 (S.C.J.) at paras. 7-8
8. 8Dickinson v. Toronto & Region Conservation Authority, supra.
9. 9Grant v. Saks, 2011 ONSC 6962 at para. 6, number 9 and para. 7
10. 10767504 Ontario Ltd. v. Peitchinis, [1993] O.J. No. 2879 (Ont. Ct. J. (Gen. Div.)) at par. 14; Lindsay v. Imperial Steel and Wire Co., [1910] O.J. No. 139 (Ont. H.C.J.) at para. 60
11. 11Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 15.02; Grants v. Saks, 2012 ONSC 552 at para. 103
12. 12Grant v. Saks, 2011 ONSC 6962 at para. 6
13. 13Grant v. Saks, 2012 ONSC 6484 at para. 1, number 2 & para. 3
14. 14Grant v. Saks, 2012 ONSC 552 (Ont. S.C.) at paras. 76(g) and 103
15. 15Grants v. Saks, supra, at para. 103
16. 16Limitations Act, 2002, s.21(1)
17. 17Joseph v. Paramount Canada’s Wonderland, 2008 ONCA 469 at para. 16; Streamline Foods Ltd. v. Jantz Canada Corp., 2012 ONCA 174 at paras. 6-7