Court File and Parties

COURT FILE NO.: CV-18-25963 DATE: 20190321 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

ANGELA BENIUK and DENNIS BENIUK Plaintiffs – and – THE CORPORATION OF THE MUNICIPALITY OF LEAMINGTON Defendant

COUNSEL: Raymond G. Colautti, for the Plaintiffs Tom Serafimovski, for the Defendant

HEARD: February 1, 2019

RULING ON SUMMARY JUDGMENT MOTIONS

CAREY J.

[1] Before this court were two competing summary judgment motions. The plaintiffs seek an order dismissing the defendant’s summary judgment motion, and granting their own. The defendant municipality seeks the converse.

BACKGROUND

[2] Angela Beniuk and Dennis Beniuk (“Mr. and Mrs. Beniuk”) live at 1735 Concession E, R.R. #1 (the “property”) in Leamington, Ontario. This is a single family dwelling, with a basement and a detached barn. Beginning in the summer of 2006, the rural road the property closely abuts (Mersea Road East) has experienced a very significant increase in the amount of truck traffic. The plaintiffs alleged their house has suffered substantial damage from the vibration of these heavy trucks while driving on the adjacent roadway.

[3] Mr. and Mrs. Beniuk repeatedly complained about the traffic to the Municipality of Leamington (“Municipality”) and attended a number of meetings beginning on December 10, 2007. At the end of February, 2009, Mr. and Mrs. Beniuk received an expert report which suggested that damages to their house were caused by or related to the vibrations from the traffic, especially heavy trucks. A letter was sent on March 19, 2009 from the plaintiffs’ counsel to the Clerk of the Municipality putting them on notice for a claim for injurious affection.

[4] In December of 2009, Mr. and Mrs. Beniuk sent a notice of arbitration and statement of claim, dated December 16, 2009, to the Ontario Municipal Board (“OMB”), pursuant to the Expropriations Act, R.S.O. 1990, c. E.26, arguing that the Municipality’s original pre-1927 construction of the road caused injurious affection under the Expropriations Act (Case No. LC090042). A reply to the statement of claim was served by the Municipality and mediation occurred on February 16, 2012. After examinations for discovery were held on June 12, 2014, a hearing date was set for December 4, 2017.

[5] In oral reasons delivered December 5, 2017, and issued on January 10, 2018, the OMB determined that the claim did not constitute injurious affection and therefore the OMB did not have jurisdiction. Mr. and Mrs. Beniuk filed their statement of claim in this action on January 17, 2018.

ISSUES

[6] The following issues are before the court:

1. Is the plaintiffs’ claim barred by operation of a limitation period?
2. Is the defendant liable to compensate the plaintiffs for nuisance?
3. Is the defendant liable for damages to the plaintiffs under s. 44 of the Municipal Act?

POSITION OF THE PARTIES WITH RESPECT TO THE ISSUES

Position of the Plaintiffs

[7] The plaintiffs say the limitation period is governed by the Real Property Limitation Act, R.S.O. 1990, c. L.15 (“RPLA”), and therefore is one of ten years.

[8] In the alternative, if it is governed by the two-year limitation period under the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, they submit the claim was not discovered until after the OMB’s decision deciding it did not have jurisdiction. The plaintiffs note they issued their statement of claim one week following the issuances of the OMB decision.

[9] In a further alternative, the plaintiffs suggest the cause of action is continuing and ongoing.

[10] The plaintiffs submit that the previous and ongoing noise, vibration, and damage allegedly constitutes nuisance and a substantial and unreasonable interference with their use and enjoyment of the land. They say that the interference is greater than they should be expected to bear in the public interest without compensation. In that position, they rely on the expert report of Chall-ENG Services Inc., dated February 28, 2009, and the expert report of Luigi Lecce of LGL Consulting, which suggest the structural damage to the residence is sourced to the traffic on the nearby Mersea Road East.

[11] The plaintiffs further submit that the Municipality is liable under a statutory cause of action as set out in s. 44 of the Municipal Act, 2001, S.O. 2001, c. 25, which establishes, among other things, a municipality’s duty to keep a highway in a state of repair reasonable in the circumstances and its liability in default of that duty. The plaintiffs suggest liability rests with the Municipality for failing to ensure the road was in a state of good repair for its applicable and continued use. The road was being used for large transport trucks despite street signs forbidding them. Any failure on their part of compliance with the formal notice provisions of s. 44(10) of the Municipal Act, 2001, has been met under s. 44(12) as a demonstrated reasonable excuse for the insufficiency of the notice and the Municipality had not been prejudiced in its defence.

Position of the Defendant

[12] The Municipality submits the plaintiffs’ claim is statute barred under the Limitations Act, 2002, and was commenced without proper notice while being not of the nature and type contemplated by s. 44 of the Municipal Act, 2001.

[13] In respect of the claimed damages, the Municipality disputes causation, questioning the causal connection between the trucks on Mersea Road East and the damaged sustained. The Municipality submits they could not be a source of any sort of interference if is not demonstrated they are connected to the cause. They assert that the plaintiffs refuse to allow their home to be inspected. They rely on the expert report of David C. McCloskey who suggested the plaintiffs’ home likely had existing damage and defects; was likely not in compliance with the Ontario Building Code; and presuming the road is smooth, ground vibrations from trucks would be minimal. The Municipality further submits that the vibrations did not cause substantial interference, and if the interference were substantial, it would be reasonable given their steps to mitigate the negative effects of the trucking traffic which culminated in replacing all gravel roads in the Municipality with hard surfaced roadways.

[14] The Municipality also submits it was acting pursuant to statutory authority and is thus immune from liability. While a municipal by-law prohibits the operation of heavy trucks on Mersea Road East, that by-law exempts owners driving to and from the owner’s permanent residence located in an agricultural zone. Pursuant to the Farming and Food Production Protection Act, 1998, S.O. 1998, c. 1, s. 6, a municipality cannot restrict the normal farm practice carried on as part of an agricultural operation. The lands adjoining Mersea Road East, including the plaintiffs’ property, are zoned agricultural. The Municipality submits that the truck traffic complained of in this case is part of an agricultural operation and the alleged nuisance is an unavoidable consequence of its statutory authority.

[15] The Municipality also denies it was negligent in not meeting the statutory duty of care under s. 44 of the Municipality Act, 2001. It states that the statutory duty owed is only to road users and not for injuries suffered by adjoining landowners. Even if there is a duty, the Municipality submits it took reasonable steps by eliminating the gravel road and replacing it with a hard surface road.

[16] Finally, the Municipality submits that their decision not to enforce the traffic by-law and to decline a recommendation to rebuild Mersea Road East was a policy decision. The Municipality is protected from tortious claims based on policy decisions made in good faith, though the implementation of those decisions may be subject to claims in tort: see s. 450 of the Municipal Act, 2001; and Just v. British Columbia, [1989] 2 S.C.R. 1228, at pp. 1240-41. They submit the decision to forgo rebuilding Mersea Road East was driven by economic and/or financial factors and the Municipality’s decision to not enforce the traffic by-law did not fall below the standard of care given the restrictions on the Municipality’s ability to interfere with farm practices, as previously noted.

ANALYSIS

[17] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment: see Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49. The law is clear that if I agree with the defendant on the issue of the limitation period, the defendant’s summary judgment motion must succeed. I will deal with all the issues in the order set out above.

Issue #1 – Is the Claim barred by operation of a limitation period?

Which Limitation Period?

[18] As discussed earlier, the plaintiffs’ approach to a limitation period is three-pronged. I begin with the argument that this is a case where the RPLA rather than the Limitations Act, 2002 applies. They rely on s. 2(1) of the Limitations Act, 2002, which excludes coverage by that act to proceedings to which the RPLA applies. The RPLA contains the following definition of “land” and provides for a ten year limitation period on certain claims and the extinguishment of rights at the end of the limitation period, as follows:

Definitions

1. In this Act,

   “land” includes messuages and all other hereditaments, whether corporeal or incorporeal, chattels and other personal property transmissible to heirs, money to be laid out in the purchase of land, and any share of the same hereditaments and properties of any of them, any estate of inheritance, or estate for any life or lives, or other estate transmissible to heirs, any possibility, right or title of entry or action, and any other interest capable of being inherited, whether the same estates, possibilities, rights, titles and interest or any of them, are in possession, reversion, remainder or contingency; (“bien-fonds”)

Limitation where the subject interested

4. No person shall make an entry or distress, or bring an action to recover any land or rent, but within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to some person through whom the person making or bringing it claims, or if the right did not accrue to any person through whom that person claims, then within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to the person making or bringing it.

Extinguishment of right at the end of the period of limitation

15. At the determination of the period limited by this Act to any person for making an entry or distress or bringing any action, the right and title of such person to the land or rent, for the recovery whereof such entry, distress or action, respectively, might have been made or brought within such period, is extinguished.

[19] The plaintiffs rely on s. 1’s use of the archaic “messuages”, which describes a dwelling house, its out buildings, the area immediately surrounding the dwelling, and the adjacent land appropriate to its use. The continued use of the term “messuages” occurred as a result of the Ontario Legislature leaving the law as applied to real property largely untouched when it overhauled the law of limitation periods in Ontario. The plaintiffs rely on the Court of Appeal for Ontario decision, McConnell v. Huxtable, 2014 ONCA 86, 118 O.R. (3d) 561, at para. 14, for both its definition of messuages and its conclusion that “an action to recover any land” included a claim for unjust enrichment seeking a remedial constructive trust upon real property and therefore the ten-year limitation applied in that case. The court concluded, in para. 17 of the decision that, “the term ‘recover’ in ordinary language implies the return of something that the person previously held...However, legal dictionaries refer to a different usage of the term as that of gaining through a judgment or order.” This was the definition adopted by the Court of Appeal in Hartman Estate v. Hartfam Holdings Ltd. (2006), 263 O.L.R. (4th) 640 (Ont. C.A.) at para. 57; and Harvey v. Talon International Inc., 2017 ONCA 267, 137 O.R. (3d) 184, at para. 45. In Harvey, the ten-year limitation period was held to apply to the recovery of a deposit in rescission of an agreement of purchase and sale of land. The court found that this fell within the RPLA’s definition of an “action to recover land”, specifically because of the inclusion of “money to be laid out in the purchase of land” within the s. 4 definition of “land”.

[20] Given the definition of “messuages” adopted in McConnell, does pleading the tort of private nuisance, or the damage to the property alleged, make this an action to recover and (messuages) analogous to the action in Harvey to recover money laid out in the purchase of land? In my view, the answer is no. While this action may “concern” land or be “related” to land, it is not an action to recover land, including a messuage/dwelling house, and does not fall into the RPLA. I find support in this conclusion by the voluminous amount of cases applying the two-year Limitations, 2002 period to the tort of nuisance.

Discovery of the claim

[21] The second limitations question is one of discoverability and nuisance as a continuing tort. Section 4 of the Limitations Act, 2002 sets the basic limitation period at two years after the day on which the claim is discovered. Section 5(2) of the Limitations Act, 2002 creates a presumption that a person with a claim is presumed to have discovered their claim on the date the act or omissions which the claim is based took place, unless the contrary is proven. Section 5(1) states:

Discovery

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).

[22] Given these requirements, and in particular the need to know that a proceeding would be an appropriate means to seek to remedy a claim, in my view there are four real options for the discoverability date:

1. February 28, 2009 – This is the date the Beniuks received an expert report that suggested damages to the house were probably caused by or related to vibrations from traffic.
2. March 19, 2009 – This is the date the plaintiffs’ counsel sent a letter to the Clerk and Director of Corporate Services for the defendant Municipality, putting the Municipality on notice of a claim for injurious affection.
3. January 5, 2010 – This is the date of the defendant’s reply to the OMB Statement of Claim included the pleading that the plaintiffs were in the wrong forum.
4. January 10, 2018 – This is the date when the OMB determined that the claim did not constitute injurious affection and declined jurisdiction.

[23] The plaintiffs propose a fifth option, that of a “rolling” cause of action where the limitation period commenced each day a fresh cause of action accrued and ran two years from that date. The plaintiffs’ counsel submit that the vibrations on the property continue to this day. However, in June of 2013, the evidence is that the existing gravel road base was pulverized and a new granular road base and new tar and chip surface was put down. Even allowing that there was a continuing cause of action, damages would only be recoverable for the part of the loss arisen in the two year period before the plaintiffs filed their statement of claim. I do not find the mere presence of trucks continuing to drive on Mersea Road E., particularly following the resurfacing, to be evidence of additional damage sustained within the limitation period. A party claiming a continuing nuisance in the face of a limitation defence must have evidence of damage sustained within the limitation period: see Bolton Oak Inc. v. McColl-Frontenac Inc., 2011 ONSC 6567, at para. 52; citing ML Plaza Holdings Ltd. v. Imperial Oil Ltd., 2006 BCSC 352, aff’d 2006 BCCA 564.

[24] The first three discoverability dates set out above puts this action outside the limitation period of the Limitations Act, 2002. That leaves the issue of the fourth discoverability date suggesting the limitation period only began to run after the OMB decided its jurisdiction of the claims. This issue was raised on appeal in Har Jo Management Services Canada Ltd. v. York (Regional Municipality), 2018 ONCA 469, 91 R.P.R. (5th) 1. In that case, the plaintiff made both a claim for injurious affection before the OMB and later started proceedings in the Superior Court “out of an abundance of caution” (para. 23). In that decision, the Court of Appeal noted in obiter at para. 44 that:

Case law suggests that in circumstances similar to those in this case, plaintiffs have often commenced two proceedings, one before the OMB and one in the Superior Court. Defendants may then seek a stay of the court proceeding pending a determination of jurisdiction by the OMB, or even dismissal of the court claim if it is clearly a claim for injurious affection. [Citations omitted.]

[25] In Har Jo, the Court of Appeal also had the argument that the limitation period for their action should not begin to run until the OMB determined whether it had exclusive jurisdiction over the claim for the damages arisen. The Court of Appeal left that issue undecided as the appellant’s claim was found not to be statute barred for other reasons.

[26] Here, the defendant Municipality argues that the law does not provide for the postponing or suspending of the limitation period simply because a plaintiff brought its claim in the wrong forum, citing the reasoning in Novak v. St. Demetrius (Ukrainian Catholic Development Corporation, 2017 ONSC 3503, at para. 27, aff’d 2017 ONCA 693. I agree. Counsel for the plaintiffs knew of the forum issue by January 5, 2010, at the latest, when the defendants raised the issue of wrong forum in their reply to the OMB statement of claim. When a plaintiff fails to exercise the diligence a reasonable person would, the claim is potentially discoverable earlier than the date the plaintiffs had actual knowledge of the claim: see Har Jo, at para. 42.

[27] In my view, a reasonable person with the abilities and in the circumstances of the plaintiffs ought to have discovered the claim on February 28, 2009, upon receipt of the expert report suggesting damage to the property was connected to the traffic on the nearby roadway: see s. 5(1)(b), Limitations Act, 2002. That would make the commencement of this action far outside the two-year limitation period. I note as well, that in the OMB’s decision, issued January 10, 2018, at para. 24, it was stated:

The Board also notes that in this case, it appears that the Beniuks knew of damage to their home caused by truck traffic as early as 2007, which may be a matter for the Superior Court should the Beniuks pursue a court claim.

Issue #2 – Is the defendant liable to compensate the plaintiffs for nuisance?

[28] Given my view of the effect of the Limitations Act, 2002, I decline to review Issue #2, that of nuisance. If I am wrong on the application of the Limitations Act, 2002, the evidence relied upon by the plaintiffs might be entirely different depending on which date and which limitation period (two years or ten years or whether a rolling cause of action) is accepted as appropriate.

Issue #3 – Is the defendant liable for damages to the plaintiffs under s. 44 of the Municipal Act, 2001?

[29] Section 44 of the Municipal Act, 2001 imposes a statutory duty of care on municipalities with respect to the maintenance of highways to keep them in a state of repair that is reasonable in the circumstances, including the character and location of the highway. A four-step test for analyzing the statutory cause of action against a municipality has been set out by the Court of Appeal, as follows:

1. Non-repair: The plaintiff must prove on a balance of probabilities that the municipality failed to keep the road in question in a reasonable state of repair.
2. Causation: The plaintiff must prove the “non-repair” caused the accident.
3. Statutory Defences: Proof of “non-repair” and causation establish a prima facie case of liability against a municipality. The municipality then has the onus of establishing that at least one of the three defences in s. 44(3) applies.
4. Contributory Negligence: A municipality that cannot establish any of the three defences is s. 44(3) will be found liable. The municipality can, however, show the plaintiff’s driving caused or contributed to the plaintiff’s injuries.

See: Fordham v. Dutton-Dunwich (Municipality), 2014 ONCA 891, 327 O.A.C. 302, at para. 26.

[30] I note that s. 44(10) of the Municipal Act, 2001, provides that:

No action shall be brought for the recovery of damages under subsection (2) unless, within 10 days after the occurrence of the injury, written notice of the claim and of the injury complained of, including the date, time and location of the occurrence, has been served upon or sent by registered mail to...the clerk of the municipality.

[31] This was not complied with here, although s. 44(12) notes that the failure to give notice is not a bar if there is a reasonable excuse for the want or insufficiency of the notice and the municipality is not prejudiced in its defence. I agree with the plaintiffs that they have established a reasonable excuse and the defendant was not prejudiced in its defence as they were aware from quite early on of the plaintiffs’ complaints.

[32] However, the statutory duty of care set out in s. 44(1) of the Municipal Act, 2001 is not directed to injuries suffered by adjoining landowners. The jurisprudence and duty of care has been established with respect to the travelling public and as measured against the “ordinary reasonable driver”: see Fordham, at paras 28-30. In my view, even if there was a breach of a duty to maintain Mersea Road E., the duty was not one owed to the plaintiffs.

CONCLUSION

[33] As a result of the foregoing, there will be an order dismissing the plaintiffs’ motion for summary judgment and granting the defendant’s.

[34] There will be an order of costs to the defendant Municipality.

[35] In the event the parties are unable to agree on costs, they may make brief written submissions, three double-spaced pages, along with a costs outline and any relevant offers to settle, according to the following timeline:

(a) The defendant may provide submissions within 15 days; (b) The plaintiffs may provide submissions within 15 days thereafter; and (c) The defendant may provide reply submissions within 5 days thereafter.

“original signed and released by “ Carey J. ” Thomas J. Carey Justice

Released: March 21, 2019