ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-1179
DATE: 2014-09-19
BETWEEN:
ROY MELFORD DAWSON
Plaintiff
– and –
THE CORPORATION OF THE TOWNSHIP OF LAURENTIAN VALLEY
Defendant
Self –represented Plaintiff.
Stephen Kelly, for the Defendant
-and-
AUREL BOUCHER and LINDA BOUCHER
The third parties not appearing
Third Parties
HEARD: September 19, 2014 at Pembroke
T.D.RAY, J
[1] The defendant moves for an order for summary judgement dismissing the plaintiff’s claim on the ground that there is no genuine issue requiring a trial, by reason of the Limitations Act, 2002, and the absence of a cause of action.
[2] The plaintiff’s Statement of Claim was issued November 27, 2012 claiming $4,000,000 damages and various declarations against the defendant arising out of its alleged failure to enforce a subdivision agreement as against the Bouchers, his neighbours, who it is alleged dumped soil deposits adjacent to and on his property. The defendant in its Statement of Defence took the position that it had acted reasonably, that it had no obligation to take proceedings against the Bouchers, and that it was open to the plaintiff as developer of the subdivision to take whatever proceedings against the Bouchers he considered appropriate, but that he had no claim against the defendant.
[3] The plaintiff’s Statement of Claim alleges that the Bouchers had deposited fill on their own property as well as on the plaintiff’s property shortly after purchasing their lot from the plaintiff in 2004.
[4] In response to the defendant’s motion record which included the affidavit of its planner, the plaintiff filed a handwritten submission. While it was not sworn as required by the rules, and is therefore insufficient as a response to a motion for summary judgement, I nonetheless heard argument on the basis of his written submission including the attachments.
[5] The plaintiff said that he went to a council meeting in 2006 complaining about the Bouchers, was told it was in the “hands of the committee”, and commenced proceedings against the Bouchers himself. This action complained of the same conduct of dumping of fill by the Bouchers. It was settled in 2009.
[6] In January, 2007, the plaintiff had sought and received from the defendant copies of its documentation concerning Bouchers ‘placing of fill’, and consulting report. That documentation included letters to the Bouchers advising them that they were in breach of the subdivision agreement by reason of the dumping of the fill.
[7] In 2009, after reviewing a consultant’s report, their solicitor’s opinion, and in light of the cost of potential litigation, the defendant decided not to take proceedings against the Bouchers. It took the position that it was a good faith decision.
[8] The plaintiff says he was not aware until September, 2011, that the defendant had abandoned the intention to take proceedings against the Bouchers. It is his position that his cause of action was discovered in 2011, and therefore his action was commenced within the two year limitation period.
[9] I am obliged to grant summary judgement if I am satisfied that there is no genuine issue requiring a trial. The parties are expected to tender the evidence that they intend to adduce at trial. The motion is to be judged on the basis of the materials before me. In considering the issues, I may weigh the evidence, evaluate credibility, and draw any reasonable inference from the evidence.[^1]
[10] I am satisfied that the plaintiff launched his action against the defendant well after the governing two year limitation period. Firstly, he received considerable documentation from the defendant in January 2007. This was presumably in anticipation of his action against the Bouchers. In fact the plaintiff knew in 2005 that the Bouchers had deposited fill on their land, and in his 2007 action alleged that they had caused damage to his property. The plaintiff had sold the property to the Bouchers, and was well aware of their activities, and the subdivision agreement to which he had been a party as developer. The documents the plaintiff relied upon in responding to this motion make it abundantly clear that he had in his possession in 2007 all of the facts and circumstances, and evidence that he relied upon in his November 27, 2012 Statement of Claim. His claim that he did not know that the defendant had decided not to take proceedings against the Bouchers until 2011 has no merit. Firstly, the Bouchers are his neighbours. If there was fill improperly dumped, he would be the one to know that. Leaving aside the question of what he expected the defendant to do to the Bouchers about the fill, when he had settled an action against them in 2009, it was always open to him to make enquiries of the defendant as to what if any progress there was as against the Bouchers. The last information he had was in 2006, that it was in the hands of the committee. He can be taken to know that the defendant was considering the matter. He then received a package of information in January 2007 which included correspondence to the Bouchers which contained no evidence of any action having been actually taken against the Bouchers. He waited four years before enquiring further.
[11] I find that that the plaintiff’s action ought to have been launched by January, 2009, in order to be in compliance with the Limitations Act, 2002[^2]. I do not consider it necessary for a trial to determine this issue. The plaintiff’s action cannot succeed. I find that the defendant has a complete defence to this action.
[12] I further find that in any event, the defendant did not owe a duty to the plaintiff to take proceedings against the Bouchers, and therefore there was no breach of its duty.[^3] It considered the matter and behaved reasonably in declining to take proceedings against the Bouchers.[^4]
[13] Had the plaintiff believed that the defendant owed him a duty, he would presumably have taken proceedings against the defendant when he initiated his action against the Bouchers in 2007. I therefore find in any event that the defendant would not be found liable to the plaintiff under the circumstances of this case. I do not consider it necessary to have a trial to determine this issue. On this basis also I find his action cannot succeed.
[14] The defendant’s motion for summary judgement is granted and the plaintiff’s action is dismissed.
[15] The parties may make written costs submissions of two pages or less, the defendant by October 5, 2014, and the plaintiff in reply by October 12, 2014, and a further 5 days for reply by the defendant. They may be filed with the trial coordinator at Pembroke.
Honourable Justice Timothy Ray
Released: September 19, 2014
COURT FILE NO.: 12-1179
DATE: 2014-09-19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ROY MELFORD DAWSON
Plaintiff
– and –
THE CORPORATION OF THE TOWNSHIP OF LAURENTIAN VALLEY
Defendant
-and-
AUREL BOUCHER and LINDA BOUCHER
Third Parties
REASONS FOR JUDGeMENT
Honourable Justice Timothy Ray
Released: September 19, 2014
[^1]: Rule 20.04 (2.1) Rules of Civil Procedure, Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 (Ont. C.A.),
[^2]: Limitations Act, 2002, S.O. 2002, C. 24, Schedule B, ss. 4,5,
[^3]: Municipal Act, 2001, S.O. 2001, C. 25 s.440.
[^4]: City of Toronto v. Polai [1970] 1 O.R. 483,1969 339 (ONCA)