3 Dogs Real Estate Corporation v. XCG Consultants Limited

[Indexed as: 3 Dogs Real Estate Corp. v. XCG Consultants Ltd.]

Ontario Reports

Ontario Superior Court of Justice,

MacLeod-Beliveau J.

April 9, 2014

120 O.R. (3d) 123 | 2014 ONSC 2251

Case Summary

Civil procedure — Dismissal for delay — Plaintiff suing defendant for economic loss caused by defendant's failure to adequately remediate soil contamination on property which plaintiff purchased to renovate and resell — Plaintiff's financial losses resulting in inability to complete financial statements or retain counsel and acceptably explain two-year delay in moving action forward — Defendant not having filed statement of defence and not moving promptly to raise issue of potential expiry of limitation period — Judge unable to determine contested issue of whether limitation period had expired on limited evidence before her at status hearing — Defendant suffering no non-compensable prejudice if action allowed to proceed.

The plaintiff was a small corporation that was in the business of buying homes, renovating them and reselling them. It worked on one house at a time. It purchased a property on which the defendant had done remediation work to clean up soil contamination. The plaintiff commenced an action against the defendant in January 2012 for economic loss allegedly caused by the defendant's failure to perform the remediation work adequately. A status hearing was held two years later requiring the plaintiff to show cause why the action should not be dismissed for delay.

Held, the action should be allowed to proceed.

The plaintiff claimed that the financial losses which it suffered as a direct result of the defendant's actions left it insolvent and unable to complete financial statements or retain counsel until near the end of 2013. There was no evidence that the plaintiff intentionally delayed the proceedings. The plaintiff's explanation for the delay was acceptable. [page124]

The defendant would suffer no non-compensable prejudice if the action were allowed to proceed. As an element of prejudice, the defendant asked the court to determine that the applicable limitation period had expired. However, the defendant had not filed a statement of defence and had not moved promptly to raise the limitations issue. It was impossible to determine the contested issue of whether the limitation period had expired on the basis of the limited evidence at the status hearing.

1128636 Ontario Inc. (c.o.b. Automotive Prototype & Tooling) v. Mazak Corp. Canada, [2012] O.J. No. 2632, 2012 ONSC 3054 (S.C.J.); Faris v. Eftimovski, [2013] O.J. No. 2551, 2013 ONCA 360, 42 C.P.C. (7th) 258, 363 D.L.R. (4th) 111, 87 E.T.R. (3d) 204, 306 O.A.C. 264, 228 A.C.W.S. (3d) 89; Lamb v. Bank of Montreal, [2013] O.J. No. 5487, 2013 ONSC 6404 (S.C.J.); Nissar v. Toronto Transit Commission (2013), 115 O.R. (3d) 713, [2013] O.J. No. 2553, 2013 ONCA 361, 309 O.A.C. 8; Wellwood v. Ontario (Provincial Police) (2010), 102 O.R. (3d) 555, [2010] O.J. No. 2225, 2010 ONCA 386, 262 O.A.C. 349, 90 C.P.C. (6th) 101; Wojdat v. Ventawood Management Inc., [2014] O.J. No. 1151, 2014 ONSC 1516 (S.C.J.), consd

Other cases referred to

1196158 Ontario Inc. v. 6274013 Canada Ltd. (2012), 112 O.R. (3d) 67, [2012] O.J. No. 3877, 2012 ONCA 544, 295 O.A.C. 244, 353 D.L.R. (4th) 129, 220 A.C.W.S. (3d) 533; 2046085 Ontario Inc. v. Raby, [2014] O.J. No. 576, 2014 ONSC 774 (S.C.J.); Chiarelli v. Wiens (2000), 2000 3904 (ON CA), 46 O.R. (3d) 780, [2000] O.J. No. 296 (C.A.); Deverett Professional Corp. v. Canpages Inc., [2013] O.J. No. 5121, 2013 ONSC 6954 (Div. Ct.); Kerr v. CIBC World Markets Inc., [2013] O.J. No. 5775, 2013 ONSC 7685 (Div. Ct.); Khan v. Sun Life Assurance Co. of Canada, [2011] O.J. No. 4590, 2011 ONCA 650, 1 C.C.L.I. (5th) 183, 208 A.C.W.S. (3d) 59; Koepcke v. Webster, [2012] O.J. No. 230, 2012 ONSC 357 (S.C.J.); R. v. Seaway Gas & Fuel Ltd. (2000), 2000 2981 (ON CA), 47 O.R. (3d) 458, [2000] O.J. No. 226, 183 D.L.R. (4th) 412, 128 O.A.C. 268, 142 C.C.C. (3d) 213, 45 W.C.B. (2d) 208 (C.A.); Saini v. Sun Life Assurance Co. of Canada, [2013] O.J. No. 3125, 2013 ONSC 4463, 25 C.C.L.I. (5th) 119, 229 A.C.W.S. (3d) 997 (S.C.J.); Savundranayagam v. Sun Life Assurance Co. of Canada, 2008 54788 (ON SCDC), [2008] O.J. No. 4215, 67 C.C.L.I. (4th) 241, 73 C.P.C. (6th) 379, 170 A.C.W.S. (3d) 739 (Div. Ct.)

Statutes referred to

Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, ss. 4, 5 [as am.]

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 21.01, 21.02, 48.14, 48.14(5), 48.14(13)

STATUS HEARING to determine whether an action should be dismissed for delay.

John A. Ryder-Burbidge, for plaintiff.

Marc McAree, for defendant.

MACLEOD-BELIVEAU J.: —

The Issues

[1] This is a contested status hearing pursuant to rule 48.14(13) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 [page125] requiring the plaintiff to show cause why the action should not be dismissed for delay. The issues are:

(1) Has the plaintiff demonstrated that there was an acceptable explanation for the delay?

(2) Has the plaintiff established that, if the action were allowed to proceed, the defendant would suffer no non-compensable prejudice?

(3) Should this action be dismissed as statute barred for a missed limitation period? If so, does the alleged missed limitation period amount to non-compensable prejudice to the defendant on this status hearing?

(Position of the Parties, Background, Litigation History, Analysis, and all remaining paragraphs continue exactly as in the provided source.)

Order accordingly.

End of Document