CITATION: Datta v. Anderson, 2016 ONSC 5006
COURT FILE NO.: 15-65185
DATE: 2016-08-05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
NAVIN DATTA, NAND DATTA and NITIN DATTA
Plaintiff/Responding Parties
– and –
LINDA ANDERSON, ROGER CHAPMAN, SARAH MCMILLAN, ANDREW CAUTY, 1470525 ONTARIO INC. c.o.b. as MALWOOD AGGREGATE LTD., HYDRO ONE NETWORK AND THE CITY OF OTTAWA
Defendants/Moving Parties
Cheryl Letourneau, for the Plaintiffs/ Responding Parties
Robert D. Ryan, for the Defendant/Moving Party, Hydro One Network
Patricia Lawson for the Defendants/Moving Parties, McMillan and Cauty
No one appearing for the other defendants
AND BETWEEN
HAFIZUDDIN KHAN and RODABA KHAN
Plaintiffs/Responding Parties
– and –
LINDA ANDERSON, ROGER CHAPMAN, SARAH MCMILLAN, ANDREW CAUTY, 1470525 ONTARIO INC. c.o.b. as MALWOOD AGGREGATE LTD., HYDRO ONE NETWORKS INC., and THE CITY OF OTTAWA
Defendants/Moving Parties
Cheryl Letourneau, for the Plaintiffs/Responding Parties
Robert D. Ryan, for the Defendant/Moving Party, Hydro One Network
Patricia Lawson for the Defendants/Moving Parties, McMillan and Cauty.
No one appearing for the other defendants
T.D.RAY, J
[1] The defendants Hydro One Networks (“Hydro”); and McMillan and Cauty (“neighbours”) bring motions for summary judgement for dismissal of both actions (15-65185 and 15-65161) as against them on the basis that the actions were not commenced within the time allowed by the Limitations Act, and on the ground that the plaintiffs have no no cause of action.
[2] The plaintiffs in both actions oppose the motion. The actions were commenced as Simplified Actions, on July 28, and July 29, 2015, respectively.
[3] The Claims contain similar claims against the identical defendants, different allegations of fact as against the other defendants in each action, and identical allegations as against Hydro.
[4] In each action the plaintiffs claim damages of $25,000 for the costs of re-erecting their fence; $35,000 for negligence, malicious prosecution, trespass and nuisance; and $20,000 for punitive damages.
[5] The test on a motion for summary judgement is to determine firstly if there is a genuine issue requiring a trial. If not then the motions judge is to determine the case on the basis of the record, and the law. I am satisfied that the issues before me concerning the limitation period, and whether the plaintiffs have a cause of action do not require a trial.
Claim against Hydro
[6] The plaintiffs in the two actions own adjacent properties (back to back) in a housing development. They had decided in June, 2012 to erect fencing and retained a fencing company to install the fence. The plaintiffs’ representative, Mr Haider, had telephoned the City to enquire about the property line in relation to the curb, and was allegedly told that a set-back of 9 ft. from the curb was required. On June 18, 2012 the fencing company called a central number to locate underground services. By July 30, 2012 the ‘locates’ by Bell, Enbridge Gas, and Hydro had been completed; and the fence had been installed.
[7] On August 5, 2012 as a result of a complaint by the ‘neighbours’, the City attended the premises, did measurements, and concluded the fence was 6 feet from the road and 2 feet from a community mailbox. On August 8, 2012 the plaintiffs were served with an infraction notice that the fence was on City property and the fence was required to be removed. Various meetings and discussions with the City took place; and on April 17, 2013 the plaintiffs were told by a by-law officer that the distances from the road to the plaintiffs’ property line was between 16.2 feet and 15.6 feet, and that the fence was on City property. The plaintiffs were served with a Provincial Offences Notice for erecting the fence on City property. For technical reasons that Notice did not proceed. On May 31, 2013, the plaintiffs enquired of Hydro if they would take an easement for their services if the plaintiffs were able to purchase the piece of property on which the fence was located. June 17, 2013, Hydro said no. By email June 17, 2013, Hydro advised the plaintiffs through their representative that a fence could not be built on the road allowance because of their services. Hydro then learned that the fence had already been built on the road allowance in proximity to its services. In fact, the fence had already been installed and the plaintiffs had already been told by the City of Ottawa in August of 2012 to remove the fence from their property.
[8] The plaintiffs refused to remove their fence, and eventually it was removed by the City on July 29, 2015 with the costs charged back against the plaintiffs.
[9] The claim against Hydro is based on comments of various employees of theirs who attended from time to time and allegedly told the plaintiffs that the erection of the fence was nowhere near their underground services. The plaintiffs say that Hydro was therefore unreasonable in taking the position that the fence was a danger to their underground services. They say that identical fences have been installed by other neighbours without them being taken down for safety reasons. Hydro concedes that they attended the site of the fencing when it was about to be installed at the request of the fence installer to advise the installer of the location of their underground services. However, it gave no representations as to the City ownership of the property. It takes the position that that was the obligation of the plaintiffs.
[10] Hydro had underground wires legally installed along a registered easement in their favour in the vicinity of the fencing on road allowance property owned by the City
[11] The claim against Hydro is in negligence for:
a. failing to give accurate information to the Plaintiffs prior to the erection of the fence;
b. failing to give the plaintiffs accurate information after the erection of the fence;
c. employing incompetent employees to carry out the functions of Hydro; and
d. failing to instruct their employees in the proper methods and procedures when attending a work site.
[12] Hydro denies it owed the plaintiffs a duty of care and alleges that its only interest when its forces were present both before the fence erection, and when the fencing was removed was to ensure the safety of its underground cables.
[13] Hydro takes the position that the plaintiffs knew, as of August of 2012, or June 2013 at the latest of their claim. Hydro pleaded that since these actions were not commenced until July 29, 2015 that the claims are statute barred.
[14] The plaintiffs’ position is that until the fence was removed on July 29, 2013, they were not under any belief that the fence was required to be removed.
[15] The issue concerning the limitation period and Hydro is a factual one. There can be no doubt that the plaintiffs knew as of August 8, 2012 of the City’s position that the fence was on City property. Their email of May, 2013 was an admission that they did not own the property, since they believed they might be able to arrange a purchase of the property. The argument that the date of removal of the fence was the triggering event has no merit. If indeed they had a cause of action against Hydro, they are taken to be aware of it on August 8, 2012. The record shows no evidence that independent enquiries were ever undertaken by the plaintiffs concerning their property line. That was their obligation before the fence was erected, and certainly after receiving the notice from the City in August, 2012. I find the action was not commenced as against Hydro within two years as required by the Limitations Act, 2002.
[16] Leaving aside the limitation period argument, I have serious reservations concerning the merits of the cause of action against Hydro. The claim is tenuous at best. The fence was erected by the plaintiffs on City property in June, 2012. The City later required they remove the fence when it was drawn to their attention the fence was on City property. The claim seems to suggest that Hydro’s failure to support the fence being on City property was connected to the City decision to require removal of the fence. While Hydro supported the removal of the fence because of the presence of the underground services, it was the City that had the right to have the fence removed. It is not clear from the claim what or why Hydro owed the plaintiffs a duty of care. Hydro’s only involvement was to attend to locate their services for the plaintiff when they erected the fence in June, 2012 in order to avoid interference with their services. Hydro’s forces were there only to locate their services, not to advise the plaintiffs about ownership of the property. There is no evidence that Hydro misled the plaintiffs as to the location of their services.
[17] I find there was no evidence of negligence on the part of Hydro that caused the plaintiffs damages. It is not even clear what damages the plaintiffs sustained.
[18] I find there is no genuine issue requiring a trial. The action as against Hydro is dismissed.
[19] If the parties are unable to agree on costs, they may make written submissions concerning costs, two pages or less, within 15 days by Hydro, and a further 5 days by the plaintiffs for reply.
Claim against the neighbours
[20] The claims against the neighbours (McMillan and Couty) are for damages for:
a. Malicious prosecution;
b. Harassment, and
c. Intentional infliction of harm;
[21] The allegation is that the neighbours were complainants and were the source of unsubstantiated calls, complaints and harassment of the plaintiffs to the City of Ottawa By-Law services between August 13, 2010 and August 10, 2013. The neighbours’ calls to the City principally involved the Khan plaintiffs.
[22] When the plaintiffs erected a fence for privacy from the neighbours it is alleged that the neighbours then complained about the location of the fence, causing the City to investigate and ultimately to order the fence be dismantled. The plaintiffs allege the complaints by the neighbours were unfounded. The claim against the neighbours is for damages for intentional infliction of mental distress, aggravated and punitive damages.
[23] An affidavit from the plaintiffs’ representative describes the various investigations by the City, the neighbours were identified as being the source of the complaints as a result of a Freedom of Information Request in the summer, 2015. The plaintiff says that in total there were 34 complaints to the City. The neighbours say there were three issues that required the City to investigate and to repeatedly contact the plaintiffs; and that virtually all of the complaints were considered valid by the City but were resolved.
[24] The record from the City shows that aside from the location of the fence, there were three issues that formed the basis of the complaints: a long ladder left by the Khans against the side of their house, a play structure in the rear of the Khan property, and the parking of cars on the Khan front lawn and driveway. The record contains no evidence of any direct or indirect communications between the plaintiffs and the neighbours. The only evidence in the record is that of the neighbours, and complaint records from the City.
[25] The Plaintiffs’ submission that the neighbours’ complaints concerning the fence are actionable, has no merit. The complaint to the City by the neighbours that the fence appeared to be too close to the road and to the community mailbox was valid. The fence was found to have been constructed on the road allowance and was eventually removed by the City.
[26] It is conceded that a long ladder was left against the side of the Khan house which the neighbours considered to be a safety risk to children. According to the City records contained in the plaintiffs’ record, the complaint was made September 3, 2011. The City was told by the Khan plaintiffs the ladder was there for a bees nest, and was temporary. September 28, the ladder was still there. The plaintiffs had been told by the City to take it down. October 13, 2011 the ladder was removed.
[27] May 16, 2011, a complaint was made concerning a play structure at the rear of the Khan property that appeared to be very high and unsafe. The city investigated and found the structure to be 12 feet high, 12 feet wide with no enclosures on the platforms or catwalk, and no permit had been obtained. By November 21, 2011 Khans had enclosed the play structure.
[28] August 13, 2010, a complaint was made that cars were parked in the front of the Khan house. When the investigator attended, only two vehicles were there. A complaint in December 2013 about a large pile of snow on the road was not from the neighbours.
[29] The plaintiffs’ affidavit swears that they only knew the identity of the complainants in the summer of 2015 after they made a FOI request.
[30] The only reference to injuries suffered by the plaintiffs is the plaintiffs’ affiant statement that, “The events described in this affidavit have caused the plaintiff’s (sic) extreme amounts of stress and distress. The day after the fence was removed, Haffizuddin Khan suffered a heart attack and was taken to the hospital via ambulance”.
[31] The essential element common to all the claims against the neighbours is ‘intent’. It must be demonstrated by affirmative evidence, or by evidence that permits an inference of intent to be drawn, that the neighbours intended to cause harm to the plaintiffs in one way or another; either through prosecution, or personal injury damages. There is no allegation and no evidence of property damage.
[32] Other than the bald assertion by the plaintiffs that the plaintiffs suffered extreme amounts of stress, there is no evidence of damages. There is no medical evidence nor opinion evidence. The assertion of a heart attack after the fence was taken down is simply a statement of a temporal connection, and insufficient to draw any inference of causation. Damages are at the heart of a tortious claim. There are no demonstrable damages.
[33] There is simply no evidence to support an inference that the neighbours intended to cause the plaintiffs harm. There was no direct or indirect contact between the parties. The neighbours contacted the City which was their right if not their obligation when concerned about non-compliance issues. Contrary to the plaintiffs’ submissions, the neighbour’s complaints were not frivolous or unsubstantiated at all, but were investigated and dealt with. It was for the City to follow up with any complaints. There is no evidence that the neighbours pressed the City to take proceedings against the Plaintiffs. To the contrary, the record is clear that their involvement was limited to taking their concerns to the City in the form of a complaint.
[34] I am satisfied that while the proceedings had been commenced within two years of when the plaintiffs had learned of the identity of the neighbours, that in fact these actions against the neighbours are devoid of merit. One could draw the inference that the only reason the actions were commenced were to discourage the neighbours from making complaints in the future- complaints that are the right of any citizen so long as they have no ulterior motive. I see no ulterior motive for the complaints made by the neighbours. The same is not true of the Plaintiffs.
[35] There is no genuine issue for trial. The action as against the neighbours is dismissed. If the parties cannot agree on costs, they may make written submissions within 15 days by the neighbours, and a further 5 days for reply by the plaintiffs.
Honourable Justice Timothy Ray
Released: August 5, 2016
CITATION: Datta v. Anderson, 2016 ONSC 5006
COURT FILE NO.: 15-65185
DATE: 2016-08-05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
NAVIN DATTA, NAND DATTA and NITIN DATTA
Plaintiff/Responding Parties
– and –
LINDA ANDERSON, ROGER CHAPMAN, SARAH MCMILLAN, ANDREW CAUTY, 1470525 ONTARIO INC. c.o.b. as MALWOOD AGGREGATE LTD., HYDRO ONE NETWORK AND THE CITY OF OTTAWA
Defendants/Moving Parties
AND BETWEEN
HAFIZUDDIN KHAN and RODABA KHAN
Plaintiffs/Responding Parties
– and –
LINDA ANDERSON, ROGER CHAPMAN, SARAH MCMILLAN, ANDREW CAUTY, 1470525 ONTARIO INC. c.o.b. as MALWOOD AGGREGATE LTD., HYDRO ONE NETWORKS INC., and THE CITY OF OTTAWA
Defendants/Moving Parties,
REASONS FOR JUDGeMENT
Honourable Justice Timothy Ray
Released: August 5, 2016