ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-3281-14
DATE: 20141219
BETWEEN:
Heather Spark
Plaintiff
– and –
Jeff Groom, Jane Groom and
The City of Greater Sudbury
Defendants
Hedy L. Epstein, for the Plaintiff
Michael C. Birnie, for the Defendant, The City of Greater Sudbury
HEARD: November 14, 2014
DECISION ON MOTION
o’neill j.;
A. Introduction
[1] The City of Greater Sudbury commenced a summary judgment motion to dismiss the plaintiff’s claim, as against it, on the basis that the claim is statute barred, in relation to the provisions of the Limitations Act, 2002. Counsel for the moving party submitted that the claims made against the city – damages for negligence and mandatory orders for enforcement of by-laws relating to placement and height of the boundary fence, the terms of the building permit with respect to drainage issues, and enforcement of by-laws regarding an illegal roadway – were all known and discovered by the plaintiff more than two years prior to the filing of the claim on July 9, 2013.
[2] Counsel for the plaintiff submitted that the claims against the City are in the nature of continuing claims in negligence and nuisance, such that the continuing cause of action gives rise to a new limitation period each day the wrongful action at law continues. Accordingly, counsel submitted that the claim is not statute barred, and was filed within times prescribed or set out in the Limitations Act, 2002.
B. Background Facts
[3] The background facts are not in dispute. They are set out in the moving party’s factum, as well as the affidavit of the plaintiff sworn November 4, 2014. I recount them below, in summary fashion:
− The Grooms built a home adjacent to the plaintiff’s property in or about 1999.
− In doing so, they increased the elevation of their property.
− In or about 2003, the Grooms built a fence that encroached on the plaintiff’s property, impeding access to her house.
− In or about 2003, the said defendants built a road which encroaches on the plaintiff’s property.
− On December 1, 2003, the City wrote to Jeff Groom and, inter alia, ordered him to ensure his property drainage did not enter upon the plaintiff’s property.
− An engineer was retained by the plaintiff in 2010 to address the drainage issue. The Trow Engineering report of August 25, 2010 stated: “However, after reviewing the photographs supplied by yourself, the letter written by the City of Greater Sudbury, and the current state of the property, we are of the opinion that the development of the adjacent property appears to have negatively impacted your property.”
− The plaintiff launched a complaint against the By-Law Enforcement Office on February 6, 2006.
− On February 13, 2009, the City wrote to the plaintiff and stated, in part, as follows: “I have reviewed your concerns with staff from the Compliance and Enforcement Section… there are no violations of the City by-laws regarding your neighbours’ fence.
− On or about April 19, 2012, two by-law inspectors from the City attended the plaintiff’s property to address the drainage issue.
− On or about September 10, 2012, the City’s assistant solicitor wrote the plaintiff, and stated, in part, as follows: “The roads and drainage staff have advised me that they investigated the drainage patterns in this area and revisited the site after hearing of your complaints. It is their position that the drainage is working as designed.”
− In the plaintiff’s Statement of Claim, paras. 13-16 inclusive deal with the fence built in 2003, the issues with respect to the fence’s encroachment and illegal height limit, and the effects thereof upon the plaintiff’s use and enjoyment of her property.
− In the plaintiff’s affidavit of November 4, 2014, she further detailed issues with respect to the fence, as follows:
i. In mid-September, 2012, the Grooms “broke my fence posts, and moved their fence approximately 4 inches more onto my front steps and property.
ii. “…in or about 2012, the Grooms extended the fence they built near the lake front. In addition, I saw the Grooms moving the lake front fence onto my property. This fence is so high; my view of the lake is blocked.”
iii. “In or about late May 2013, the Grooms, once again, broke my fence posts and moved their fence even closer than before.”
C. Analysis
(i) The Road and Drainage Issues
[4] The claim against the City is framed in negligence, not nuisance. Further, the claim against the City seeks mandatory enforcement orders. The claim against the Grooms is framed in nuisance and/or negligence, and it seeks both mandatory orders and an injunction.
[5] In my view, the road and drainage related claims against the City ought to be dismissed on the basis that they are statute barred. In the plaintiff’s own words, “I have been complaining to the City about … the fence, road and drainage issues, since in or about 2003.”
[6] The plaintiff wrote to the City’s chief building official on August 16, 2004. She complained of lot contour changes, encroachment on her land, issues with respect to the fence and water run-off problems. On November 19, 2004, her then counsel wrote to the City regarding “a concern about whether a building permit had been properly issued for her neighbour’s home.”
[7] In response to her complaints letter to the City on February 5, 2006, regarding her formal complaint against the by-law enforcement officer, the City wrote her back on February 24, 2006, and stated in part, as follows: “We have concluded our investigation, and consider the matter closed.”
[8] It is clear from the record that the plaintiff has known about drainage and road issues, since at least 2003. And the engineering report of August 25, 2010, dealt with the drainage issue. In short, the road and drainage issues have remained the same, and have not changed, over time, to any significant degree.
[9] Counsel for the plaintiff submitted that the claims against the City were in essence continuing ones, thus renewing the limitation period day by day. Counsel pointed to the cases Langille et al. v. Schwisberg et al., 2010 Carswell Ont. 10561 (Ont. Sup. Ct.) and Georgian Developments Ltd. v. Barrie (City) 2005 Carswell Ont. 4161 (Ont. Sup. Ct.). In my view, the Languille case is not decisive of the issue, nor helpful to the plaintiff’s position. In that case, the plaintiff property owner sued adjacent owners. At para. 129, Davis D.J. stated:
A number of authorities support the position that where there is a continuing trespass, a new limitation period arises each day that the trespass continues. A continued trespass does not extend a limitation period from the time of the initial trespass to land, but instead gives rise [sic] a new cause of action each day that the trespass continues.
[10] The plaintiff knew of the existence of her claims against the City regarding the road and the drainage for more than two years prior to the date that she issued and filed her statement of claim. The City’s position has been consistent, whether or not the City sent other by-law inspectors to her property regarding the drainage issue in April of 2012. The plaintiff’s claims against the City for mandatory relief and for negligence related to events and occurrences were well known to her, more than two years before she instituted legal proceedings.
[11] In the Georgian Developments case, claims were made against the defendant City for abuse of public authority relating to allegations of repeated deliberate acts by the City over a period of 12 years, in furtherance of a City policy to obtain benefits for a local community college, the new hospital and the City itself, to the detriment of the plaintiff. At para. 18, Howden J. stated in part:
It is arguable that the defendant and its officers acted in a continuous and coherent and repeated manner to the deliberate end of acquiring extras beyond municipal legislative authorization at substantial cost to the plaintiff, while being reckless or wilfully blind to the likely harm to the plaintiff.
[12] In my view, the facts of this decision neither mirror the preset case, nor does the pleading in law itself. Further, the record before me is complete, and a trial is not necessary to determine the limitations issue on this motion.
[13] The plaintiff has claimed damages in negligence against the City herein, occasioned by its acts or omissions, as well as the failure to enforce its by-laws. The acts or omissions of the City, with respect to the road and drainage issues, were clearly known to the plaintiff more than two years prior to the institution of this legal action. Indeed, complaints with respect to the road and the drainage issue continued over the years, as did the plaintiff’s complaints to the City. While the claims in nuisance against the other defendants might be a continuing one, I cannot conclude that the negligence and failure to enforce claims against the City are continuing as in the manner outlined in the Langille and Georgian Developments cases, supra.
(ii) The Fence Issues
[14] The fence issues, the knowledge about them, the complaints respecting them as well as the City’s responses thereto, follow the same pattern as do the road and drainage issues. However, in her affidavit, the plaintiff raised new developments regarding actions taken by the Grooms in relation to the fence, in September 2012 and in May of 2013.
[15] The Statement of Claim was issued in July of 2013, and theoretically it may have captured some of the fence changes described in paragraphs 13-16 therein. These changes and developments, if they occurred in mid-2012 or in 2013, could only have been discovered by the plaintiff less than two years before this legal action was instituted. It is unclear whether the plaintiff is pleading only 2003 fence building issues, or in addition mid-2012 and 2013 fence building issues. Accordingly, I would permit only the claims against the City, in relation to allegations relating to the fence, to proceed to trial.
D. Conclusion
[16] For the reasons set out herein, the claims against the City of Greater Sudbury, for damages for negligence, and for mandatory orders, in relation to matters involving the drainage and the road, are dismissed. The remaining claims made against the City, for damages for negligence, and for mandatory orders in relation to matters involving the fence, may proceed to trial. A trial judge will be in a better position to make any final determination with respect to a Limitations Act defence, on the trial record, as the trial develops and is finalized.
[17] To the extent that a smaller portion of the plaintiff’s claim may proceed to trial, and has not been dismissed, there has been some divided success on the motion before me. But claims relating to the fence issue nonetheless are bound up with, or connected with, the plaintiff’s allegations in paras. 16 and 26 of the Statement of Claim that “… use and enjoyment of her property has been substantially interfered with and diminished” and “property cannot be sold and has no marketable value whatsoever.” Accordingly, I make no order as to costs herein.
The Honourable Mr. Justice J. Stephen O’Neill
Released: December 19, 2014
COURT FILE NO.: CV-3281-14
DATE: 20141219
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Heather Spark
Plaintiff
– and –
Jeff Groom, Jane Groom and
The City of Greater Sudbury
Defendants
DECISION ON MOTION
O’Neill J.
Released: December 19, 2014