CITATION: Inzola Main Street Inc. v. Brampton (City of), 2017 ONSC 5392

COURT FILE NO.: CV-15-2775-00A1

DATE: 20170912

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: INZOLA MAIN STREET INC., Plaintiff

THE CORPORATION OF THE CITY OF BRAMPTON, DOMINUS/CITYZEN BRAMPTON SWQRP INC. and FENGATE (BRAMPTON) LP, Defendants

THEAKSTON ENVIRONMENT CONTROL INC. cob as THEAKSTON ENVIRONMENT CONSULTING ENGINEERS, Third Party

BEFORE: EMERY J.

COUNSEL: Stuart Svonkin, for the Plaintiff

Mark MacDonald, for the Defendants (Moving Party)

No one appearing for the Third Party

HEARD: July 19, 2017

ENDORSEMENT

[1] The plaintiff Inzola Main Street Inc. (“Inzola”) commenced this action when the statement of claim was issued at Brampton on June 16, 2015. In the action, the plaintiffs are fighting City Hall. Literally.

[2] Inzola is the owner and landlord of a two-storey building at 65 Queen Street in downtown Brampton. It is the next door neighbour to Brampton City Hall at 33 Queen Street West.

[3] Starting in October 2011, the City of Brampton had an addition built to Brampton City Hall consisting of a nine-storey, L-shaped tower (the “City Hall addition”). One side of the addition was built at 41 George Street. The other side of the addition was built at 33 Queen Street West.

[4] Inzola seeks damages in this action against the City of Brampton, the general contractor Dominus/Cityzen Brampton SWQRP Inc., and Fengate (Brampton) LP alleging that the height and design of the addition to City Hall will increase snow loads on to the Inzola building that it is not built to bear. Inzola also seeks damages for claims it has made against the defendants for the noise, dust, vibration caused, and hoarding erected around the building site during construction. Inzola alleges this noise, dust, vibration and hoarding during construction drove its tenants out of the Inzola building, causing it damage and loss.

[5] Inzola’s claim for damages in the statement of claim includes a claim for the loss of the fair market value to the building.

[6] The defendants bring this motion for summary judgment to dismiss the action on the sole basis that the statement of claim was issued more than two years after the various causes of action arose. The defendants ask this court to dismiss this action because the claims based on those causes of action are statute barred under section 4 of the Limitations Act, 2002.

[7] For the purpose of this motion, the material date for the court to consider with respect to when a cause of action arose or would have been discovered by the plaintiff upon the application of section 5 of the Limitations Act, 2002 would be June 16, 2013.

Background

[8] Inzola has owned the land and building at 65 Queen Street West in Brampton since it purchased that property in June 2006 for $850,000.

[9] The Inzola building is a commercial property.

[10] In or around October 2011, the City entered into agreements with Dominus to build an addition to the Brampton City Hall (the “City Hall addition”) on property owned by Dominus. Under those agreements, both the City and Dominus would have an interest in the City Hall addition.

[11] The City Hall addition was ultimately completed in February 2015. The City Hall addition consists of two buildings. One is the nine-storey office tower, which has a mechanical penthouse on the tenth floor and a multi-level underground parking structure that fronts on to 41 George Street and 57 Queen Street West (together referred to as 41 George Street). The second building is a two-storey addition to the pre-existing City Hall which was built at 33 Queen Street West. The two parts of the City Hall addition are connected by a pedestrian bridge.

[12] The construction of the City Hall addition began in late 2011. Construction continued throughout 2012, 2013 and 2014. According to the factum filed by Inzola, the construction took place in a series of stages carried out over those years. Details about the progress made during those stages was obtained by Inzola through the disclosure of documents in this action, and from the examination for discovery of Davis Falsarella. Mr. Falsarella is the general manager for the City of Brampton and the person produced as the representative of the City for the plaintiffs to examine for discovery.

[13] The timing and nature of the construction of the City Hall addition, taken from the affidavit of John Cutruzzola, president of Inzola, and from the examination for discovery of Mr. Falsarella, are set out in Inzola’s factum as follows:

Stage 1 – Demolition of the Existing Buildings on the Construction Site

15. The first stage of the construction of the City Hall Addition was the demolition of the existing buildings on the Construction Site. The demolition of the existing building at 41 George Street was completed in or around January 2012 and the demolition of the existing building at 33 Queen St. West was completed in or about May 2012.

Stage 2 – Shoring for Parking Structure at 41 George St.

16. The next stage of the project involved putting the shoring in place for the underground parking structure to be built at 41 George Street. That work was done in or about the Spring of 2012.

Stage 3 – Excavation for Parking Structure at 41 George St.

17. The next stage of the project was the excavation for the underground parking at 41 George Street, which took place from approximately the Spring of 2012 into the Fall of 2012.

Stage 4 – Pouring of Concrete for Parking Structure

18. The next stage of the project was the pouring of the concrete for the underground parking structure at 41 George Street. That work began in or around late 2012 and continued into 2013.

Stage 5 – Pouring of Concrete for Above-Ground Structure (“Formwork”)

19. The next stage of the project was the pouring of the concrete slabs for the above-ground buildings, a process sometimes called “formwork”. The formwork for the above-ground portion of the office building at 41 George Street began in or around the summer of 2013 and continued through most of that year. It was at that stage of the project that the new office building first started to come out of the ground.

Stage 6 – Closing in the Exterior Envelope

20. The next stage of the project involved closing in the sides and roof of the buildings. That stage is sometimes referred to as building the “exterior envelope”. The construction of the exterior envelope of the office building at 41 George Street began sometime in mid or late 2013 and continued into the Spring or Summer of 2014. The full building envelope, including the roof, was closed in at some point between the Spring and Fall of 2014.

Substantial Completion

21. The City Hall Addition, including the office building at 41 George Street, reached “substantial completion” in mid-February 2015.

Building Permits for the Project – Issued February 2012-October 2014

22. City issued a series of building permits in connection with the City Hall Addition project. The dates on which those permits were issued range from February 21, 2012 to October 31, 2014. Some of those permits were conditional, according to the City’s evidence because they were issued before the site plan approval agreement was made in December 2013. The building permit for the exterior envelope of the office building at 41 George Street was issued on October 10, 2013.

23. The construction work covered by each of the building permits was carried out after the date that the permit was issued.

Status of the Project on and after June 16, 2013

24. As the evidence summarized above reflects, as of June 16, 2013 – which is the date two years prior to the commencement of this action – the above-ground portion of the office building at 41 George Street had not yet been built. At that time, work on the underground parking structure was largely or completely done and the construction of the above-ground part of the office building was just beginning. Most of the above-ground portions of the office building were built after June 2013.

25. On discovery, the City’s representative, Davis Falsarella, admitted that as of June 17, 2014 the building envelope for the building at 41 George Street had not been completed. Dominus’ evidence on discovery was that full site plan approval for the City Hall Additional project had not been granted as of October 2, 2013.

The Spatial Relationship Between the New Office Building and the Inzola Building

26. The new office building at 41 George Street is built around the Inzola Property in an “L” shape. It borders the Inzola Property on the South and East sides of the Inzola Property.

27. The new office building comes right up to the property line on the East side of the Inzola Property and is within approximately 18 inches of the Inzola Building on that side. It comes within approximately 5 feet of the Inzola Building on the South side of the Inzola Property.

28. As noted above, the office building built at 41 George Street is 9 stories tall, plus a mechanical penthouse. The Inzola Building is approximately 2 stories high.

[14] The ultimate configuration of the office tower built by the City of Brampton is an L-shape structure around the Inzola building on its south and east sides. The new office building comes up to the property line on the east side of the Inzola building and stands approximately 18 inches from the Inzola building on that side. On the south side, the new office tower comes within five feet of the Inzola building.

[15] John Cutruzzola wrote a letter to Brenda Campbell at the City of Brampton on June 18, 2012 to express his concerns about the construction of the City Hall addition at the time. In particular, Mr. Cutruzzola was concerned that the physical dimensions of the City Hall addition would create unanticipated snow load, being drifting and settling snow, that added weight on to the roof and structure of the Inzola building it had not been designed or built to bear. Ms. Campbell is the Director of Building for the City of Brampton, and Chief Building Official. Mr. Cutruzzola advised Ms. Campbell in that letter as follows:

This letter is in regards to the property at 65 Queen Street West, Brampton. We would like to advise your office that as the owners of this building, we come to realize a concern regarding the design of the building under construction to the south and east side of our building. Our concern is this building appears to form a large and continuous snow barrier on both sides of our structure. To our knowledge, our building was never designed to withstand such eventual additional load that may result from these new conditions. We rely on your authority to assure our building remains protected from any eventual danger.

[16] At the time the letter was written in June 2012, the excavation for the underground parking garage at 41 George Street was under way and the construction of the office tower above-ground had not yet begun. There was no building adjacent to the Inzola building at the time that would actually form a large and continuous snow barrier, or create a snow load effect.

[17] Mr. Cutruzzola has given evidence that in June 2012, he did not know the details of the City Hall addition that the City of Brampton intended to build. Mr. Cutruzzola states that the only information he had available to him was a preliminary artist’s rendition of the proposed City Hall addition. This rendition had been prepared by Dominus in the course of its submission in response to the request for proposal issued by the City of Brampton, and had been published in the Brampton Guardian newspaper where Mr. Cutruzzola had first seen it.

[18] Mr. Cutruzzola has deposed that he had not seen, and did not have access to any of the site plans, design drawings or any other documentation pertaining to the actual construction of the City Hall addition at the time he wrote the letter on June 18, 2012.

[19] Mr. Cutruzzola attended at Brampton City Hall between July and September 2013 to request documentation relating to the construction of the new City Hall addition. According to Mr. Cutruzzola, the City of Brampton refused to disclose that material to him.

[20] Inzola ultimately retained Ireland Engineering to prepare an evaluation of the roof of the Inzola building to assess whether it could withstand an additional snow load in the event that the new City Hall addition would impose an additional snow load on it. Mr. Cutruzzola explained the reason for retaining Ireland Engineering at his cross-examination in this way:

I said I think I’d better get an engineer to make sure that before they are going to do this thing, I did my due diligence to make sure that that don’t have some sort of a problem. So, I called the engineer to check it out.

[21] Ireland Engineering provided Inzola with a report dated July 31, 2013. This report reflected that:

a. At the time that Ireland Engineering attended at the Inzola Property on July 30, 2013, the construction of the City Hall Addition, including the office building at 41 George Street, was “in progress”.

b. Ireland Engineering inspected and evaluated the roof of the Inzola Building on July 30, 2013, concluding that “it appears that the existing roof is likely to be at or near maximum capacity using the basic current snow loads”.

c. Ireland Engineering opined that “the adjacent new building will cause significant snow piling on the roof of the adjacent property”, i.e., that the office building under construction at 41 George Street would, when completed, would add to the snow load on the Inzola Building.

[22] In its July 31, 2013 report, Ireland Engineering also stated:

We strongly recommend a complete snow load analysis considering the new building and an analysis of the existing roof structure prior to the onset of winter.

To perform the analysis, we would need,

1. Elevations of the new building on the east and south sides.

2. Sections through the new building on the east and south side indicating floor and roof parapet heights.

3. Roof plan of the new building with plan dimensions.

4. Roof plan of the existing building with dimensions and all roof member sizes.

5. Sections through the existing building with floor and roof heights.

[23] Mr. Ireland had asked Brenda Campbell, the Chief Building Official for the City of Brampton, for a copy of certain drawings and plans for the City Hall addition on July 30, 2013 so that he could refer to that documentation when performing a complete snow load analysis. Ms. Campbell refused to provide Mr. Ireland with a copy of those documents. Mr. Falsarella confirmed at his examination for discovery that the City of Brampton had the documents that Ireland Engineering referred to in its list of required documents on July 31, 2013.

[24] In or around November 2013, Inzola reinforced the Inzola building by installing structural shoring in the building’s roof and floor systems as a temporary measure to fortify the Inzola building. There had not as of that date been any snow load imposed on the Inzola building at the time this reinforcement work was carried out, because the City Hall addition was still under construction.

[25] In the course of construction of the City Hall addition, Dominus as the general contractor for the project, its agents or sub trades erected hoarding in front of the Inzola building along Queen Street. This hoarding remained in place in front of the Inzola building from late 2011 or early 2012 until late 2014 or early 2015. For the duration of that hoarding, visibility of, and access to the Inzola building was obstructed. Inzola takes the position that this hoarding had a negative effect that impacted on the commercial usefulness and viability of the Inzola building as a commercial property.

[26] The construction of the City Hall addition continued until at least February 2015, when the City Hall addition reached substantial completion. Inzola has advanced claims in this action that the construction of the City Hall addition resulted in a considerable amount of noise, dust, vibration and fumes directed at, and impacting on the Inzola building. Inzola has made a claim for damages in nuisance for the continuous noise, dust, vibration and fumes Inzola has suffered as a neighbouring property. Inzola claims that those continuing problems negatively affected its ability to use and lease the Inzola building.

[27] The Ontario Addiction Treatment Centre (“OATC”) had occupied the Inzola building as a tenant since the building was purchased by Inzola in 2006. On May 15, 2012, OATC vacated the Inzola building and stopped paying rent to Inzola. OATC advised Inzola that it was vacating the Inzola building because the hoarding in front of the building, along with other issues caused by the construction of the City Hall addition, made it impossible for OATC to continue operating in the Inzola building as a location.

[28] Mr. Cutruzzola wrote a letter on Inzola letterhead dated July 11, 2012 to Ms. Debra Dubenofsky, City Manager, in which he informed Ms. Dubenofsky as follows:

We write this letter concerning the effect of the construction activities surrounding our property at 65 Queen Street West. We would like to first advise you that our tenant had vacated the premises on May 15, 2012. Upon notice of their intent to vacate in March 2012, we started the process to re-lease the property. Unfortunately, due to the conditions deriving from the activities around our property such as; excessive dust, vibration, noise, fumes and the unusual structure erected in front of our building, it has been impossible to re-lease this space.

[29] Inzola alleges that it has been unable to rent out space in the Inzola building or to otherwise market the building in the years following OATCs departure. Inzola attributes this inability to the ongoing and excessive noise, dust, vibration and fumes created by the construction of the City Hall addition, and to hoarding along Queen Street.

[30] After OATC gave notice that it planned to vacate the Inzola building, Inzola took steps to secure new tenants for the Inzola building. Inzola engaged Bob Cranch, a real estate agent leasing agent who was at DTZ Barnicke Limited at the time, to find new tenants.

[31] Mr. Cranch subsequently moved to Cushman & Wakefield, another real estate company. On August 29, 2013, Cushman & Wakefield provided a report to explain its unsuccessful efforts to find new tenants to lease all or part of the Inzola building and adjoining property owned by Inzola, which read in part as follows:

Currently the area surrounding the two properties is part of a redevelopment being undertaken by the City of Brampton. In particular, this redevelopment is hampering the marketing of the site because the project calls for construction of an underground parking lot. … This process impacts the site first on the basis of truck traffic and debris from the excavation, second because of the noise of this process, third because of the vibration created daily within the properties by the excavation process and the fourth by the posting of the hoarding around the construction site and immediately in front of a portion of 65 Queen Street W., hampering its visibility and commercial attractiveness.

[32] On July 30, 2014, Dominus sold certain interests it held in the City Hall addition to Fengate (Brampton) LP. Since that date, Fengate has been an owner of those interests in the City Hall addition. Inzola has joined Fengate as a defendant to this action because of those ownership interests.

Analysis

[33] The City brings this motion for summary judgment dismissing all or part of the claims made by Inzola on the basis that this action was commenced more than two years after the time those claims arose.

[34] The two year limitation period under s. 4 of the Limitations Act, 2002 starts to run on the day on which a claim is discovered. Section 5 of the Limitations Act, 2002 prescribes how and when a claim is discovered:

5 (1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

Presumption

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

[35] The City takes the position that the claim for damages based on the additional snow loading allegations were known to the plaintiff before June 16, 2013. The City relies on Mr. Cutruzzola’s letter to Brenda Campbell dated June 18, 2012 as evidence that Inzola had knowledge of the snow load claim before that date. Inzola argues that the letter is not the only evidence of the date on which Inzola knew it had a claim, but is offered as evidence that Inzola had discovered the existence of the claim by at least June 16, 2013.

[36] Inzola takes the position that an injury, loss or damage must actually occur for a claim to arise. Inzola relies on extensive evidence filed on the motion to establish the fact that the City Hall addition had not yet been built as of June 2013, and that no injury, loss or damage with respect to creating additional, or any snow load had occurred as of June 16, 2013.

[37] The City also submits that Inzola’s claim in nuisance for the hoarding, noise, dust and vibration resulting from the construction of the City Hall addition was commenced out of time. Those effects arose from the construction of the underground parking garage for the City Hall addition that commenced in late 2011 or early 2012. The dates for the excavation and construction of the underground parking lot are not disputed.

[38] Inzola takes the position that its claim for nuisance based on the presence of the hoarding, and the problems of noise, dust and vibration caused by the construction of the City Hall addition, was a continuing cause of action that commenced each day the nuisance continued.

[39] Inzola made its claim in negligence against the City alleging that the City Hall addition caused a potential snow load problem to the Inzola. This is a separate and distinct claim from Inzola’s claim in nuisance. I propose to review the principles by which the court is guided when deciding a motion for summary judgment, as well as relevant principles relating to the law of limitation periods before I turn to how each of these claims will be determined on this motion.

The Evidentiary Burden on a Motion for Summary Judgment

[40] Motions for summary judgment calling for the adjudication of a defence based on a limitation period are in keeping with the culture shift called for by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR 87. The onus is initially on the moving party to satisfy the court that, on the evidence, there is no genuine issue requiring a trial to adjudicate the issues on their merits. If the moving party discharges this onus, the evidentiary burden shifts to the responding party to establish, on the evidence, that there is a genuine issue that requires a trial after all.

[41] The purpose behind the onus of proof on the moving party and evidentiary burden on the responding party is clear: to ensure that the motions judge has a full record that contains the best evidence available. It is this obligation imposed on each party to provide a full record that enables the motions judge to assess from the motion materials whether he or she is confident that the factual record provides the evidence required by the court to make findings of fact to which the law can be applied to adjudicate a claim or defence justly without requiring a trial.

[42] Since the amendments to Rule 20 in January, 2010, various judges have examined this evidentiary burden. In examining the burden of proof on the moving party and the evidentiary burden on the party responding, Justice Karakatsanis, as she then was, utilized the metaphor that each party must “put its best foot forward” in Hino Motors v. Kell, 2010 ONSC 1329 in the following way:

[9] The new Rule does not change the burden in a summary judgment motion. The moving party bears the evidentiary burden of showing that there is no genuine issue requiring a trial. The moving party must prove this and cannot rely on mere allegations or the pleadings. Pursuant to Rule 20.02(2), a responding party “may not rest solely on the allegations or denial in the party’s pleadings but must set out in affidavit material or other evidence, specific facts showing there is a genuine issue requiring a trial.” In other words, consistent with existing jurisprudence, each side must “put its best foot forward” with respect to the existence or non-existence of material issues to be tried. The court is entitled to assume that the record contains all the evidence which the parties would present if there were a trial.

Relevant Law on Limitation Periods

[43] The language in section 5(2) of the Limitations Act, 2002 provides a rebuttable presumption that a person with a claim is presumed to have known of the matters referred to in subsection 5(1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proven. The onus is on the person with a claim to show that he or she did not know that the act or omission on which the claim is based had taken place within the statutory limitation period. The court must determine when the plaintiff could have or should have acquired actual knowledge of material facts that would give rise to its claim under section 5(1)(a). The test under section 5(1)(a) is therefore subjective.

[44] The test under section 5(1)(b) is objective in that it requires the court to determine when a reasonable person in the plaintiff’s position, exercising reasonable diligence, ought to have known of those matters referred to in section 5(1)(a): Clarke v. Faust, 2016 ONCA 223, [2016] O.J. No. 1486, at para. 15, and Ferrara v. Lorenzetti Wolfe Barristers and Solicitors, 2012 ONCA 851, at para. 33.

[45] It has been further held that the process to determine whether and when a person with a claim discovered that claim involves a fact based analysis. Determining what facts could have been discovered at a given time, and what constitutes a reasonable level of diligence to discover a claim, depends on the circumstances of the case. See Ferrara, at paras. 71 and 72; Redel v. Cassin, 2013 ONSC 2279, at paras. 259 to 264; and Lawless v. Anderson, 2011 ONCA 102, [2011] O.J. No. 519, at paras. 22 and 23.

[46] For the discovery of a claim to enable a limitation period to run, all of the elements under section 5(1)(a) must be satisfied to rebut the presumption under section 5(2) as subparagraphs (i), (ii), (iv) are conjunctive by virtue of the word “and” after subparagraph (iii). In section 5(1)(a)(iv), a limitation period only runs when the person with the claim would know that “a proceeding would be an appropriate means to seek a remedy” for that injury, loss or damage.

[47] The “appropriate means” element is new to the law of limitations since the enactment of the Limitations Act 2002. In 407 ETR Concession Company Ltd. v. Day, 2016 ONCA 709, Justice Laskin described this additional element of having the following effect:

[33] The appropriateness of bringing an action was not an element of the former limitations statute or the common law discoverability rule. This added element can have the effect – as it does in this case – of postponing the start date of the two-year limitation period beyond the date when a plaintiff knows it has incurred a loss because of the defendant’s actions.

[48] Section 5(1)(b) requires the court to take into account the circumstances of the person with the claim when making a determination whether commencing a proceeding would be the appropriate means to seek a remedy for an alleged wrong. Justice Laskin goes on to describe the significance of taking the plaintiff’s circumstances into account in his discussion of how circumstances are important under para. 45 as follows:

[45] 407 ETR’s “circumstances” strongly suggest that requiring it to sue before finding out whether licence plate denial has achieved its purpose would be inappropriate. An important case on the significance of a plaintiff’s “circumstances” is the majority judgment in Novak v. Bond, 1999 CanLII 685 (SCC), [1999] 1 S.C.R. 808. In that case, McLachlin J. considered s. 6(4)(b) of British Columbia’s Limitations Act, R.S.B.C. 1996, c. 266, which provided that time did not begin to run against a plaintiff until “the person whose means of knowledge is in question ought, in the person’s own interests and taking the person’s circumstances into account, to be able to bring an action” (emphasis added). At para. 85 of her reasons, McLachlin J. discussed “interests and circumstances” and cautioned against the potential unfairness of requiring a plaintiff to bring an action at the time a claim first materializes:

Litigation is never a process to be embarked upon casually and sometimes a plaintiff’s individual circumstances and interests may mean that he or she cannot reasonably bring an action at the time it first materializes. This approach makes good policy sense. To force a plaintiff to sue without having regard to his or her own circumstances may be unfair to the plaintiff and may also disserve the defendant by forcing him or her to meet an action pressed into court prematurely.

[Emphasis added; footnotes omitted.]

[49] The Court of Appeal again visited the concept of “appropriate means” as a necessary consideration in Presidential MSH Corporation v. Marr Foster & Co. LLP, 2017 ONCA 325. In that case, the court held that the question of whether a plaintiff knew or should have known that commencing a proceeding would have been an appropriate means to seek a remedy for an alleged injury, damage or loss, requires a fact intensive inquiry, based on the circumstances of that particular case.

The Claim for Snow Loading

[50] Inzola brings its action alleging that the addition to City Hall will cause snow drifting patterns and the accumulation of snow on the roof of the Inzola building that will result in snow loading. In the statement of claim, Inzola alleges that the Inzola building was not built with the structural support required for the snow loading on its roof that the City Hall addition will cause. Inzola seeks damages for the damage to its building as a result of this snow loading.

[51] Inzola has made the basic submission on this motion that a limitation period for damages claim does not commence running until damage actually occurs. Mr. Svonkin refers to the definition of “claim” in section 1 of the Limitations Act 2002 as “a claim to remedy an injury, loss or damage that occurred as a result of an act or omission”. This language is consistent with section 5(1)(a) that sets out the components of the discoverability rule, and provides that a claim is discovered on the earlier of the day on which the person with the claim first knew that the injury loss or damage “had occurred”.

[52] From reading the definition “claim” in section 1 that a claim must relate to damage, and to the qualifier “had occurred” to injury, loss or damage in section 5(1)(a)(i), the legislature has employed definitive language to require that the damage to which the claim relates must have taken place for the injury, loss or damage to be known. Where damage is an element of a cause of action or claim, a limitation period can only commence when the person with the claim suffers some damage that has occurred, and that damage is discoverable: Peixeiro v. Haberman, 1997 CanLII 325 (SCC), [1997] S.C.J. No. 31, at paras. 18 and 36, and Pickering Square Inc. v. Trillium College Inc., 2016 ONCA 179, [2016] O.J. No. 1118, at para. 33.

[53] The prospect of injury, loss or damage at some future date is not sufficient to commence a limitation running. A claim does not arise only because a person recognizes or is concerned that they may suffer that injury, loss or damage at some point in the future. Justice Belobaba explained it this way in IPEX v. Lubrizol, 2012 ONSC 2717, at para. 22:

22. In my view, it is self-evident that the injury, loss or damage that “has occurred” must be injury, loss or damage that was sustained by the person with the claim. It is also, in my view, a self-evident proposition of modern limitations law that the clock begins to run with actual harm (known or discoverable) and not just the possibility of future harm. The latter proposition doesn’t make any sense either in terms of public policy or otherwise.

[Footnote omitted]

[54] Mr. MacDonald’s argument that Inzola triggered the limitation period when it identified its claim that it will suffer a loss of market value to the Inzola building because of the anticipated snow load has no merit for two reasons. First, this is a claim found in paragraph 24 of the statement of claim as a particular of damages pleaded. The defendants are required by Rule 20.01 to bring their motion supported by affidavit material or other evidence for summary judgment to dismiss all or part of the claim. Neither party provided evidence on the motion that the Inzola building would suffer a loss of fair market value because of the proposed addition to Brampton City Hall. There is no evidence before this court to determine whether a perceived or intangible loss such as a future reduction to the fair market value of a property that may be caused by another party can trigger the commencement of a limitation period.

[55] Of equal importance, Mr. MacDonald made this argument in reply. His argument that making reference to a claim for the loss of fair market value in the statement of claim was sufficient to start the limitation period running was made in the absence of any reference to any injury, loss or damage of that nature argued by Mr. Svonkin. It was an argument that Mr. MacDonald could have made in the course of his submissions in chief on behalf of the City of Brampton, but did not. I have therefore not considered that argument in these reasons.

[56] The argument regarding the time or date Inzola perceived that it suffered the loss of fair market value to the Inzola building was caused by the City of Brampton will, like other time related issues, be a genuine issue requiring a trial.

[57] I am not confident that I have sufficient evidence from the moving defendants that damage had occurred by June 16, 2013 for Inzola’s claim for injury, loss or damage to be discoverable. I am satisfied on the evidence that there is nothing to give rise to the presumption under section 5(2) of the Limitations Act 2002. Inzola could not have known of the matters to which subsection (1)(a) relates before that date because no act or omission had taken place for which Inzola could seek a remedy. There is no factual basis for a reasonable person in the circumstances of Inzola or Mr. Cutruzzola to have known of those matters, because they had not yet occurred.

[58] In my view, the defendants have not met their onus as the moving parties to show there is no genuine issue requiring a trial that the limitation period for Inzola’s claim for snow loading claim started running as of a particular date prior to January 16, 2013.

[59] The motion to dismiss the claim for snow loading as a claim that is statute barred is therefore dismissed. I find there to be a genuine issue requiring a trial regarding this defence.

The Plaintiff’s Claim for Nuisance

[60] The moving parties also seek summary judgment dismissing Inzola’s claim in nuisance for the noise, dust and vibration caused by the construction of the City Hall addition, and for the impact of the hoarding erected around the construction site alleged in paragraph 12 of the statement of claim. The moving parties submit that the time for bringing claims of this nature commenced at least at the time Mr. Cutruzzola wrote his letter on Inzola letterhead to Debra Dubenofsky, City Manager on July 11, 2012.

[61] The Supreme Court of Canada in Roberts v. Portage La Prairie (City), 1971 CanLII 128 (SCC), [1971] S.C.J. No. 53, held that a claim for nuisance does not arise until damage occurs. Inzola also submits that its claim for negligence is likewise not statute barred because a claim for negligence, like a claim in nuisance, requires that the plaintiff has actually suffered some damage for there to be a cause of action: Midwest Properties Ltd. v. Thordarson, 2015 ONCA 819, at para. 108.

[62] In Smith v. Inco Ltd., 2011 ONCA 628, the Court of Appeal held that the type of harm required to establish a claim in nuisance is damage to the plaintiff’s land that is “material, actual and readily ascertainable”. In terms of what was meant when it held that damage must be “actual”, the court went on to hold that the damage must have already occurred, and that the damage alleged must not merely be potential damage that may occur in the future.

[63] It is apparent from the evidence that the alleged noise, dust and vibration caused by the construction, and the hoarding placed around the construction site had a continuing impact on Inzola’s sensibilities and its interests as a property owner. I am not prepared to go so far as to decide whether this continuing impact constituted a nuisance that is actionable and for which damages can be recovered, or whether a duty has been breached to constitute negligence on the part of any moving defendant. However, the decision of the Supreme Court of Canada in Roberts v. Portage La Prairie (City) stands for the proposition that a continuing cause of action is one where the same kind of acts or omissions remain unabated day after day. Each day the alleged loss, injury or damage caused by those acts or omissions re-occurs, a new claim may arise, and the repetition of that alleged loss, injury or damage gives rise to a cause of action for which the plaintiff is entitled to bring a fresh claim. See also Eureka Oils Ltd. v. Colli, [1983] M.J. No. 487.

[64] Inzola’s claims in nuisance and in negligence with respect to allegations of the noise, dust and vibrations caused, and the effect of the hoarding on its business have the factual underpinnings to support Inzola’s claim in nuisance or in negligence as a continuing cause of action.

[65] I therefore conclude that the question of whether Inzola’s claim in nuisance based on the noise, dust, vibration and hoarding issues was commenced out of time is a genuine issue requiring a trial. If it is determined at trial that this part of the plaintiff’s claim is a continuing cause of action in any respect to which a limitation period applies, it would be open for the trial judge to determine the first time on which that cause of action arose to limit the plaintiff’s claim to that extent.

[66] In respect of Inzola’s claim in negligence with respect to the alleged damage caused by the noise, dust, vibration or hoarding, the moving parties have only asked for this action to be dismissed. I therefore decline to make any decision about whether the evidence supports any finding of fact that raises a duty of care, or whether a claim in negligence is otherwise applicable on the facts. That too, is better left for trial.

Conclusion and Costs

[67] The Court of Appeal in Trotter v. Trotter, 2014 ONCA 841, [2014] O.J. No. 5647 remarked on how the summary judgment process should not be used where to do so risked unfairness to the parties or to the process for obtaining a just adjudication of disputes. Nor should summary judgment be considered an appropriate process where there are significant credibility issues or other genuine issues of disputed fact requiring a trial: Baywood Homes Partnership v. Ahditaghi, 2014 ONCA 450, [2014] O.J. No. 2745 (Ont. C.A.).

[68] The motion for summary judgment in this respect has been brought for tactical purposes to add time and expense. In such cases, Justice Karakatsanis in Hryniak expressed the view that the motions judge may choose to decline the use of discretion given by Rule 20.04 to use further fact-finding powers, and to dismiss the motion for summary judgment, without engaging in a further inquiry. I decline to use the enhanced fact finding powers to make a final adjudication using the summary judgment procedure for the following reasons:

1. I have found this motion was brought for strategic reasons;

2. Mr. Cutruzzola gave evidence in the cross-examination on his affidavit that he had access to the Request for Proposal document and the preliminary plans for the City Hall addition before the City awarded the construction contract to Dominus. A trial would be a more suitable forum for witnesses to testify and to be cross-examined if called to give evidence relevant to the limitations defence; and

3. the limitation defence would not dispose of the action entirely as it does not apply to the claim against Fengate in any event.

[69] The evidence filed by all parties on the defendants’ motion for summary judgment, when taken as a whole, is insufficient to satisfy me that commencing this action prior to June 16, 2013, would have been the appropriate means for the plaintiff to seek the remedies it has claimed in this action. I therefore conclude that whether Inzola commenced this action within the two year period from discovering either set of claims under section 5(1) of the Limitations Act, 2002 are genuine issues requiring a trial.

[70] The defendants’ motion is therefore dismissed.

[71] Inzola may file written submissions on costs, consisting of no more than three pages, not including a Bill of Costs, or an offer to settle, to be filed by September 25, 2017. The moving parties shall then have until October 10, 2017, to file responding submissions limited to the same extent. No submissions in reply may be filed without leave. A copy of those submissions may be faxed to my judicial assistant, Kimberly Williams, at 905-456-4834 in Brampton.

Emery J

DATE: September 12, 2017

CITATION: Inzola Main Street Inc. v. Brampton (City of), 2017 ONSC 5392

COURT FILE NO.: CV-15-2775-00A1

DATE: 20170912

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: INZOLA MAIN STREET INC., Plaintiff

THE CORPORATION OF THE CITY OF BRAMPTON, DOMINUS/ CITYZEN BRAMPTON SWQRP INC. and FENGATE (BRAMPTON) LP, Defendants

THEAKSTON ENVIRONMENT CONTROL INC. cob as THEAKSTON ENVIRONMENT CONSULTING ENGINEERS, Third Party

BEFORE: EMERY J.

COUNSEL: Stuart Svonkin, for the Plaintiff

Mark MacDonald, for the Defendants (Moving Party)

No one appearing for the Third Party

ENDORSEMENT

EMERY J

DATE: September 12, 2017