COURT FILE NO.: CV-18-0058
DATE: 2020 02 26
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Miranda Wright and Blair Wright, Responding Plaintiffs
AND:
861467 Ontario Ltd. et al., Moving Defendants
BEFORE: Doi J.
COUNSEL: O. Guillaume, Counsel for the Moving Defendant, Weigel Drainage Ltd.
E. Treslan, Counsel for the Defendants 861467 Ontario Ltd. et al.
R. Scriven, Counsel for the Responding Plaintiffs
HEARD: January 23, 2020
E N D O R S E M E N T
Overview
[1] This is a summary judgment motion by Weigel Drainage Ltd. (the “Weigel Defendant”) to dismiss the Plaintiffs’ action in its entirety for being statute-barred by the general two-year limitation period. In the alternative, the Weigel Defendant seeks partial summary judgment to dismiss the action as statute-barred save and except for the nuisance claim as against the other Defendants for damages from August 15, 2016 onwards (i.e., from 2 years preceding the date when the Plaintiffs commenced their claim). The other Defendants largely adopt the Weigel Defendants’ alternative position and concede that the claim in nuisance should proceed but only as against the Defendant 861467 Ontario Ltd. (i.e., the owner of the property neighbouring the Plaintiffs’ farm).
[2] For the following reasons, I find that the action is not statute-barred because the Plaintiffs undertook remedial efforts that postponed the start of the limitation period beyond the date when they knew of their loss caused by the Defendants. Accordingly, this motion is dismissed.
Background
[3] The Plaintiffs, Miranda Wright and Blair Wright, own and operate a farm that is adjacent to another farm that is owned by the Defendant 861467 Ontario Ltd. and run by the individual Defendants (collectively, the “Clark Defendants”) who are officers and directors of the company.
[4] From when they purchased their farm in 2012 until the Spring of 2015, the Plaintiffs had no flooding on their farm and no issues with their farm tile drainage system.
[5] In the Fall of 2014, the Plaintiffs noticed that some excavation work was being performed on the Defendants’ farm.
[6] In the spring of 2015, the Plaintiffs first experienced flooding on their farm. About 15 acres of their farm flooded, and their crops in that area of the farm failed. The Plaintiffs formed the view that the flooding was caused by a significant amount of water that had come from the Defendants’ farm.
[7] Thereafter, the same area of the Plaintiffs’ farm has flooded every springtime.
[8] In late 2015, the Plaintiff Blair Wright spoke with Barry Weigel, who is the father of the principal of the Weigel Defendant. From the conversation, he learned that the Weigle Defendant had performed the 2014 excavation work on the Defendants’ farm and, in doing so, had outlet its drainage into the Plaintiffs’ neighbouring drainage system that purportedly caused the flooding.
[9] By December 31, 2015, the Plaintiffs formed a belief that the Defendants had caused the flooding on their farm. Both Plaintiffs confirmed this during their examinations for discovery on July 8, 2019, as well as in a later formal admission made on November 27, 2019 in response to a request to admit made on November 8, 2019 by the Weigel Defendant.
[10] Notably, in their formal admission, the Plaintiffs both expressly refused to admit that they were “aware” of the cause of action before the end of 2015.
[11] After their farm first flooded in the springtime of 2015, the Plaintiffs explained their concerns to the Defendant Dan Clark in an effort to work out a solution. They did not succeed.
[12] Around October or November 2015, the Plaintiffs tried to repair their farm tile drainage system by replacing some tile that purportedly had been damaged by a significant volume of water from the Defendants’ farm. However, excess water continued to overload the Plaintiff’s system and their farm again flooded in the spring of 2016.
[13] The Plaintiffs went on to consult the former Drainage Superintendent of West Grey, and then filed a petition on May 12, 2016 with the Municipality of West Grey for the construction of a municipal drain in their area pursuant to ss.4(1) (Petition) of the Drainage Act, RSO 1990, c.D.17, as amended. The Plaintiffs hoped that the construction of a new municipal tile drain, or alternatively a repair of the existing municipal drain, would alleviate the flooding on their farm.
[14] On June 6, 2016, municipal council accepted the petition and tasked an engineering firm to prepare a report for the proposed drain. On August 5, 2016, the project engineer convened a site meeting with stakeholders to examine the drainage works area. On July 20, 2018, the engineering firm held an information meeting with stakeholders to review the project (i.e., the type and design of the drainage system, the estimated cost, and the proposed assessment for affected landowners) and to answer questions before preparing the final engineering report. The Plaintiffs attended this information meeting but were left uncertain as to when the municipal drain would be constructed, if ever.
[15] On August 15, 2018, the Plaintiffs issued their statement of claim.
[16] On December 11, 2019, the Plaintiffs were advised that the engineering report is being reviewed and likely will be brought forward to municipal council in 2020 for consideration. At this time, it remains unclear as to when the municipal drain will be constructed, if at all.
[17] The Plaintiffs continue to experience flooding on their farm, which is said to be causing damage to their farmland and their tile drainage system in the affected area.
Law of Summary Judgment
[18] Rule 20.04(2)(a) provides that summary judgment shall be granted if there is no genuine issue requiring a trial with respect to a claim or defence. There is no genuine issue requiring a trial when a fair and just determination on the merits can be reached on a motion for summary judgment, which will be the case when the motion, i) allows for the motion judge to make the necessary findings of act, ii) allows the motion judge to apply the law to the facts, and iii) is a proportionate, more expeditious and less expensive means to achieve a just result: Hyrniak v. Mauldin, 2014 SCC 7 at para 49.
[19] On a summary judgment motion, the court should first determine if there is a genuine issue requiring a trial based on the evidence in the motion record, without using the fact-finding powers set out in Rule 20.04(2.1) and (2.2). Determining whether there is a genuine issue requiring a trial should be done by reviewing the factual record. Summary judgment should be granted under Rule 20.04(2)(a) if there is sufficient evidence to fairly and justly adjudicate the dispute by way of a timely, affordable and proportionate procedure: Hyrniak at para 66.
[20] The onus of establishing that there is no genuine issue requiring a trial rests on the moving party. Where the moving party shows no genuine issue requiring a trial, the evidentiary onus shifts to the responding party to establish that there is a genuine issue requiring a trial: Sweda Farms Ltd. v. L.H. Gray & Son Ltd., 2014 CarswellOnt 11926 (ON CA) at para. 26.
[21] A motion for partial summary judgment is a rare procedure, reserved for an issue or issues that may be readily bifurcated from those in the main action and dealt with expeditiously and in a cost-effective manner: Butera v. Chown, Cairns LLP, 2017 ONCA 783 at paras 30-34. On a partial summary judgment motion, the court must consider: i) whether there is a risk of duplicative or inconsistent findings at trial; and ii) whether granting partial summary judgment is advisable in the context of the litigation as a whole: Butera at para 28, citing Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450 and Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2016 ONCA 922.
Law of Limitations
[22] The Plaintiffs’ claim is subject to ss. 4 (Basic limitation period) and 5(1) (Discovery) of the Limitations Act, S.O. 2002 c. 24 (the “Act”), which state:
Basic limitation period
- Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.
Discovery
- (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. [Emphasis added]
[23] Section 4 sets out the general two-year limitation period.
[24] Subject to the presumption under ss. 5(2), a claim is discovered under ss. 5(1)(a) based on a claimant’s actual or subjective knowledge of all matters in that clause. As the criteria under ss.5(1)(a)(i) to (iv) are conjunctive, the limitation period runs from when the claimant is actually aware of all of these criteria: Longo v. MacLaren Art Centre, 2014 ONCA 526 at para 41.
[25] A cause of action accrues once the claimant knows that some damage or injury has occurred and has identified the defendant tortfeasor: Peixeiro v. Haberman, 1997 CanLII 325 (SCC), [1997] 3 SCR 549 at para 18. Once this occurs, the claimant does not need to know the precise cause of the damage, the type of damage, or the extent of the damage for the cause of action to accrue: Ibid; Rumsam v. Pakes, 2019 ONCA 748 at para 23. Deciding whether a claim is discovered is a fact-based analysis. To discover a tort claim, such as a negligence claim, it is sufficient for the claimant to know enough facts to base an allegation against the defendant. If the prospective plaintiff does, then the claim is “discovered” and the limitation begins to run: Brown v. Wahl, 2015 ONCA 778 at paras 7-9.
[26] Under ss. 5(1)(a)(iv) of the Act, a limitation period runs from when the claimant knew that a proceeding would be an appropriate means to seek a remedy for the injury, loss or damage. This “appropriate means” criterion is a statutory addition to the other discoverability factors under ss. 5(1)(a)(i) to (iii) and considers whether an action would be an appropriate means to seek a remedy: 407 ETR Concession Company Limited v. Day, 2016 ONCA 709 at para 33; leave to appeal refused [2016] SCCA No 509. The purpose of ss. 5(1)(a)(iv) is to deter needless litigation: 407 ETR at para 48. Depending on the circumstances, it may be inappropriate to start a limitation period against a claimant who is engaged in good faith efforts to achieve a remedy: Brown v. Baum, 2016 ONCA 325 at paras 12 and 18-19; Markel Insurance Company of Canada v. ING Insurance Company of Canada, 2012 ONCA 218 at para 34. If starting a proceeding is inappropriate under ss. 5(1)(a)(iv), the start of the limitation period is postponed beyond the date on which the other constitutive elements of the claim are discovered: Presley v. Van Dusen, 2019 ONCA 66 at para 17. The ss.5(1)(a)(iv) analysis turns on the specific facts in each case: 407 ETR at para 34.
[27] Under ss. 5(1)(b), a claim is discovered when a reasonable person in the claimant’s position would have been alerted to the elements of the claim in ss. 5(1)(a), regardless of whether or not the claimant actually turned his or her mind to them: Ferrara v. Lorenzetti Wolfe Barristers and Solicitors, 2012 ONCA 851 at para 33. Under ss. 5(2), there is a rebuttable presumption that a potential claimant knew of the matters in ss. 5(1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proven.
[28] Granting summary judgment to dismiss an action as being time-barred requires specific findings of fact regarding each element under s. 5(1) and (2) of the Limitations Act: Nasr Hospitality Services Inc. v. Intact Insurance, 2018 ONCA 725 at para 39.
Analysis
[29] From the Plaintiffs’ evidence at discoveries and in their later admission, it is clear that by the end of 2015 they had discovered that their injury, loss or damage had occurred and had been caused by or contributed to by an act or omission by the Defendants. To this end, I find that the Plaintiffs knew by December 31, 2015 that:
In the spring of 2015, approximately 15 acres of their farm had flooded and their crops in that area of the farm had failed, which had caused loss and damage;
Work performed in 2014 by the Weigel Defendants to the tile drainage system at the neighbouring Clark Defendants’ farm had resulted in a tremendous amount of water migrating to the Plaintiffs’ farm that caused or contributed to their flood damage; and
The Defendants’ acts or omissions or trespass had caused the flood damage to the Plaintiffs’ farm as the Clark Defendants had arranged for the Weigel Defendant to perform tile drainage work in 2014 which caused the flood water to migrate.
[30] From their July 8, 2019 examinations for discovery, it is apparent that both Plaintiffs had formed the view by December 31, 2015 that the Defendants had caused the flooding on their farm in the spring of 2015, as explained above. In their Response to Request to Admit dated November 27, 2019, the Plaintiffs also made a formal admission confirming that they had believed by the end of 2015 that the Defendants had caused the flooding to the affected area of their farm in the spring of 2015. Accordingly, I find that the Defendants have satisfied the factors at ss. 5(1)(a)(i) to (iii) of the Act.
[31] The Plaintiffs submit that the limitation period for their action should start from their examination for discovery of the Weigel Defendants on November 7, 2019 (i.e., over a year after they brought their action), when they obtained particulars of the latter’s negligence when it performed the work on the tile drainage system at the Defendants’ farm. However, a plaintiff need not know with certainty that his or her injury or damage was caused by the defendant to discover a claim for a limitation period to run: Dale v. Frank, 2017 ONCA 32 at para 7. Instead, the proper discovery test is reflected by the following:
Determining whether a person has discovered a claim is a fact-based analysis. The question to be posed is whether the prospective plaintiff knows enough facts on which to base an allegation of negligence against the defendant. If the plaintiff does, then the claim has been “discovered”, and the limitation begins to run. [Emphasis added]
What a prospective plaintiff must know are the material facts necessary to make a claim, whatever form they come in.
Ibid, citing Lawless v. Anderson, 2011 ONCA 102 at paras 23 and 28.
[32] In this case, I find that the Plaintiffs had sufficient knowledge of the material facts on which to base their claims in negligence, trespass and nuisance against the Defendants by the end of 2015. They had learned from Mr. Weigel that the Weigel Defendants had configured the Defendants’ tile drainage system to outlet into the Plaintiffs’ tile drainage system, purportedly without permission, and that their tile drainage system had ruptured after taking on water from the Defendant’s farm. In the circumstances, I find that the Plaintiffs had sufficient facts to ground their claim against the Defendants, which they had discovered by December 31, 2015 as explained in their examinations for discovery and confirmed in their formal admission. Although the Plaintiffs clearly obtained further particulars of the Weigel Defendant’s negligence during their examination for discovery of this party, this additional information reflected a compilation of their further fact-gathering efforts that went beyond the material facts they knew when they discovered their claim by the end of 2015.
[33] But that is not the end of the limitation analysis. Turning to ss. 5(1)(a)(iv) of the Act, I find that the Plaintiffs initially tried to fix the flooding problem in late 2015 (i.e., once the damaged crops had been removed from the affected area of the farm) by repairing damaged tiles to their farm drainage system. Unfortunately, this repair effort was unsuccessful as significant water from the Clark Defendants’ farm is said to have continued to overwhelm the Plaintiffs’ drainage system and flood their farm in the spring of 2016 and in subsequent years. Nevertheless, I find that the Plaintiffs undertook to repair their damaged tile drainage system as a good faith effort to remedy their flooding problem that made a court proceeding premature and inappropriate under ss. 5(1)(a)(iv): Brown at paras 18-19; Presley at paras 22-23. In light of the Plaintiffs’ repair efforts, I also find that the presumption under ss. 5(1)(b) is rebutted as I accept that a reasonable person in their situation would not have considered it to have been appropriate to commence litigation while attempting repairs which may have obviated the need for an action: Brown at para 20.
[34] On May 12, 2016, the Plaintiffs petitioned their municipality to construct a new drain in the flooded area pursuant to the Drainage Act, after inquiring about this recourse with a municipal drainage official. Notably, the Weigel and other Defendants jointly assert that the 2015 flooding on the Plaintiffs’ farm had occurred in an unusually wet year and was caused, at least in part, by surface water from precipitation migrating from higher ground across several adjoining properties including the Defendants’ farm and other neighbouring lands. In turn, the Plaintiffs petitioned for a drain to be built to remedy the flooding that impacted their farm.
[35] Shortly after the Plaintiffs filed their drain petition on May 12, 2016, the Municipality of West Grey passed a resolution on June 6, 2016 to accept the petition and retain an engineering firm to prepare a report under the Drainage Act. On August 5, 2016, the engineering firm on the project organized an initial site meeting to examine the area of the proposed drainage works. The engineering firm then proceeded to take about two (2) years to conduct its drainage survey.
[36] On July 20, 2018, the Plaintiffs and other stakeholders attended an information meeting when the drainage survey findings were presented before the drainage report itself was finalized. From the information shared at this meeting, the Plaintiffs came to believe that the outcome of their petition was uncertain because a clear indication as to when a drain might be built, if ever, was not provided. Shortly thereafter, the Plaintiff’s commenced their action on August 15, 2018.
[37] On these particular facts, I find that the Plaintiffs’ effort to petition their municipality to construct a drain reflected a good faith effort to remedy their flooding problem so as to make a claim and litigation premature and potentially unnecessary. In my view, the facts of this case fall within the line of cases that have applied ss. 5(1)(a)(iv) to find that commencing litigation would not be an appropriate means to seek to remedy in light of a pending alternate process to remedy the subject problem and eliminate the loss: Presley at para 25: 407 ETR at para 30; Presidential MSH Corporation v. Marr Foster & Co., 2017 ONCA 325 at paras 28 et seq. Under this reasoning, a claimant who relies on the exhaustion of some alternative process, such as an administrative or other process, to suspend the discovery of its claim must point to a reasonably certain or ascertainable date on which that alternative process had run its course or became exhausted: Presidential MHS at para 48. From their uncontradicted evidence, I find that the Plaintiffs did not know that a proceeding would be an appropriate means to seek a remedy until July 20, 2018, at the earliest, when they first learned of the preliminary findings from the survey.
[38] Until at least July 20, 2018, I find that the Plaintiffs acted appropriately by not immediately starting litigation to allow the petition process under the Drainage Act to unfold, as its outcome could have led to the construction of a municipal drain that would largely, if not entirely, have resolved their flooding problem. Awaiting the outcome of this administrative process was consistent with the policy intent behind ss.5(1)(a)(iv) for courts to function more efficiently by deterring needless litigation: Gillham at para 36. Once the preliminary findings from the drainage survey were disclosed on July 20, 2018, the Plaintiffs came to believe that the likelihood of the proposed drain being built was rather uncertain and that litigation would be an appropriate means to seek a remedy. They then brought their action. On the particular facts of this case, I find that it would be inappropriate to start the two-year limitation period before the preliminary findings of the survey were disclosed to the Plaintiffs at the information meeting, as they would not have known if litigation would be an appropriate means to remedy their flooding problem before then.
[39] Similarly, pursuant to ss.5(1)(b) of the Act, I find on these facts that a reasonable person in the Plaintiffs’ circumstances would not have known that litigation was an appropriate way to seek a remedy until at least the information meeting held on July 20, 2018 when the uncertainty surrounding the construction of the municipal drain became apparent. Until then, I accept that the Plaintiffs acted reasonably in believing that their flooding problem might be fixed if a drain were to be built, which might well have removed any need for them to pursue a remedy through litigation. In my view, a reasonable person would not have known before at least the date of the information meeting that a municipal drain would not be an appropriate or realistic solution, and that a proceeding in court would be an appropriate means to seek a remedy.
[40] The Plaintiffs brought this action on August 15, 2018, which I find was well within the prescribed two-year period. The action is not statute-barred. It follows that there are genuine issues that require a trial.
Outcome
[41] Accordingly, the motion for summary judgment, or alternatively partial summary judgment, is dismissed.
[42] In general, a motion judge who dismisses a summary judgment motion should remain seized of the matters as the trial judge, absent compelling reasons to the contrary: Hryniak, at para 78. However, in the particular circumstances of this case, there is no benefit if I remain seized of this trial. The only issue argued before me was the narrow one of whether the action was statute-barred. I made no findings on any central issues. Accordingly, there is no carry-forward advantage in having me remain seized of the matter and no such economies to be achieved with respect to this litigation: Huang v. Mai, 2014 ONSC 1156 at para 52; Kerwin v. Manulife Financial, 2017 ONSC 7166 at para 43.
[43] The Plaintiffs were successful and are entitled to their costs. While not entirely clear from their costs outline, I accept that most of the Plaintiffs’ costs for the motion were incurred before they delivered an offer to settle (i.e., that proposed a dismissal of the motion without costs) dated December 16, 2019, which is also the date of their factum and authorities. Accordingly, I award the Plaintiffs their costs in the fixed amount of $9,500.00, inclusive of taxes and disbursements, reflecting partial indemnity to the date of their offer and substantial indemnity afterwards, which the Defendants shall pay jointly and severally within 30 days.
Doi J.
DATE: February 26, 2020
COURT FILE NO.: CV-18-0058
DATE: 2020 02 26
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Miranda Wright and Blair Wright, Responding Plaintiffs
AND:
861467 Ontario Ltd. et al., Moving Defendants
COUNSEL: O. Guillaume, Counsel for the Moving Defendant, Weigel Drainage Ltd.
E. Treslan, Counsel for the Defendants 861467 Ontario Ltd. et al.
R. Scriven, Counsel for the Responding Plaintiffs
ENDORSEMENT
Doi J.
DATE: February 26, 2020