Court File and Parties
COURT FILE NO.: CV-21-00060251-0000 DATE: 2023-05-16
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Leslie Tyszko, Plaintiff – and – City of St. Catharines, Defendant
COUNSEL: Keshav Agnihotri, for the Plaintiff Christine Ellis, for the Defendant
HEARD: May 11, 2023
BEFORE: The Honourable Mr. Justice M. Bordin
Reasons for Judgment
[1] This action concerns a project (the “Work”) completed by the defendant, City of St. Catharines (the “City”), on September 12, 2002, to install storm sewers at the plaintiff’s residence, 91 Haig Street, St. Catharines, Ontario (the “Property”).
[2] The plaintiff finds himself in a very difficult position – when it rains, the Property is routinely flooded with water which, it appears, is not properly draining from the road, but flows instead onto the Property. The plaintiff alleges that the Work has caused these drainage issues and damage to the Property and seeks damages against the City related to repairs, loss of enjoyment, and mental distress.
[3] The statement of claim was issued on July 13, 2021.
[4] The City moves to dismiss the plaintiff’s claim on the basis that it is statute barred by either the ultimate limitation period or the two-year limitation period in the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.
[5] The plaintiff says that a legal proceeding was not an appropriate means to seek a remedy until the City formally denied his claim on March 12, 2021, and that the claim was commenced with the two-year limitation period.
[6] The motion raises the following issues:
a. Is the claim statute barred by the ultimate limitation period? b. Is the claim statute barred by the two-year limitation period? c. Is this an appropriate case for summary judgment?
Summary Judgment
[7] Pursuant to rule 20.04(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), the court shall grant summary judgment if it is satisfied that there is "no genuine issue requiring a trial". Under subsection (2.1), in determining whether there is a genuine issue requiring a trial, the court shall consider the evidence and has the power to weigh evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence, unless it is in the interest of justice for such power to be exercised only at trial.
[8] The Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, guides the court on a summary judgment motion. The governing principles can be found at paras. 49 and 50:
[49] 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. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
[50] These principles are interconnected and all speak to whether summary judgment will provide a fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.
[9] The court should first determine if there is a genuine issue requiring a trial based only on the evidence before the court, without using the fact-finding powers.
[10] If there appears to be a genuine issue requiring a trial, the court should then determine if the need for a trial can be avoided by using the powers under rule 20.04(2.1) and (2.2). The court may at its discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability, and proportionality in light of the litigation as a whole: Hryniak at para. 66.
[11] Numerous cases confirm that: (1) a party to a summary judgment motion must “lead trump or risk losing”; and (2) the court is entitled to assume that the parties have put before the court all the evidence they would adduce at trial.
Facts
[12] The Work upon which the claim is based on was completed on September 12, 2002. This is consistent with the affidavits of the plaintiff and the plaintiff’s neighbour.
[13] The plaintiff commenced this action against the City on July 13, 2021, for negligence and alleged losses as a result of the Work. The City defended the action on October 1, 2021. The City asserted that the claim was statute barred by the operation of both the ultimate limitation period and the basic limitation period contained in sections 4, 5 and 15 of the Limitations Act.
[14] The Property was owned by the plaintiff’s parents. The plaintiff returned to the Property more frequently in 2015-2016. Upon his return, he noticed that when it rained, water would come toward the house from the road and not drain away from the house. Around this time, the plaintiff noticed the drainage problem had adversely affected the house and cracks had started to appear around the house and basement.
[15] A video filmed by the plaintiff in July 2017 clearly shows water running down the plaintiff’s driveway from the road, pooling beside his house and, in the words of the plaintiff, doing a lot of damage to his house.
[16] The plaintiff acquired title to the Property on October 2, 2017. The plaintiff immediately made complaints to the City about issues with the drainage. On October 30, 2017, city crews attended and found no issues with the catch basins. The plaintiff says this was not reported to him.
[17] In his affidavit, the plaintiff deposes that he “legitimately commenced in 2017 to seek redressal for the damage caused by the negligence of the Defendant City”.
[18] A video by the plaintiff on October 8, 2017, shows water flowing from the road to his Property and pooling around his house on the Property but not entering the catch basin. In the video, the plaintiff says: “this is what is going into my house” and “this is what happened to my house and what’s happening to my place since you took the ditches away from Haig Street.”
[19] Because he did not receive a response from the City, the plaintiff sought the assistance of a lawyer. On January 3, 2018, the plaintiff’s lawyer wrote to the City that the surface water backs up from the street to the house during a heavy rainfall and that the problem has occurred since the City removed the ditches and installed catch basins.
[20] Further letters were sent by the plaintiff’s lawyer on March 12, 2018 and April 16, 2018, to the same effect.
[21] A February 2018 video filmed by the plaintiff records and discusses new cracking in his concrete drive, carport, along the wall of his home and the carport itself, as well as new water damage and cracking inside the house in the furnace room and other basement areas of his home. The video evidence confirms the plaintiff believed the damages were being caused by the water and drainage issues on the Property.
[22] On February 10, 2019, the plaintiff obtained an estimate for repairs in the amount of $85,241.75, which is the amount sought in paragraph 1(a) of the statement of claim.
[23] On May 22, 2019, the plaintiff’s lawyer wrote to the City. In the letter, the plaintiff’s lawyer says he has been retained by the plaintiff owner of the Property to commence proceedings to seek a judicial remedy for the poor drainage of the rainfall/storm water at the Property. The letter states that the City completed the Work around 2002, that the natural drainage of the areas was impeded by the system put in by the City, that in 2015-2016 when the plaintiff returned to the house he noticed water flowed toward the house rather than away from it, and that in 2017 he noticed cracks in and around the house and basement. The letter demands the City rectify the situation. A response was demanded in 15 days, failing which the lawyer was instructed to commence the appropriate judicial proceedings without further notice.
[24] On May 23, 2019, the City responded by letter that the firm which administers the City's public liability insurance and the relevant city department have been advised and a representative of the City's insurers would be contacting the plaintiff in due course. This was the first communication from the City. No follow up communication was sent or received.
[25] As he had not heard anything further from the City, the plaintiff, through his lawyer followed up with the City almost two years later on January 22, 2021. An adjuster on behalf of the City responded and requested videos of the water problem. Videos and supporting documentation were provided by the plaintiff on February 19, 2021.
[26] On March 12, 2021, the adjuster formally denied the plaintiff’s claim. In the letter, the adjuster denied liability and referenced the expiry of the two-year limitation period.
[27] There is no other communication from the City, other than the letters of May 23, 2019 and of March 12, 2019, in the record.
[28] There is no evidence that the City or its representatives undertook to conduct an investigation of the cause of the drainage issue or made a determination of the cause of the drainage issue before the claim was issued.
[29] The plaintiff’s uncontested evidence is that there were no issues with drainage at the Property before the Work was done by the City.
The Ultimate Limitation Period
[30] The Limitations Act seeks to balance the right of claimants to sue with the right of defendants to have some certainty and finality in managing their affairs: York Condominium Corporation No. 382 v. Jay-M Holdings Limited, 2007 ONCA 49, 84 O.R. (3d) 414 (C.A.), at para. 2.
[31] Section 15(1) and (2) of the Limitations Act provide that even if the limitation period established by any other section of the Limitations Act in respect of a claim has not expired, no proceeding shall be commenced in respect of the claim after the fifteenth anniversary of the day on which the act or omission on which the claim is based took place.
[32] Therefore, even if the applicable two-year limitation period has not expired, no action can be brought if 15 years have passed since the act or omission took place. As explained by the Court of Appeal for Ontario in York Condominium Corporation No. 382 at para. 5:
[5] Thus, pursuant to s. 15, if a negligent act or omission occurred on January 2, 2004, but remained undiscovered until January 6, 2019, no action could be brought although the basic limitation period of two years from the date of discovery had not expired. [emphasis added]
[33] Section 15 imposes a 15-year cap on all limitation periods, regardless of discoverability concerns: Mega International Commercial Bank (Canada) v. Yung, 2018 ONCA 429, 141 O.R. (3d) 81 (C.A.), at para. 69. The ultimate limitation period under the Limitations Act is not subject to any discoverability concerns: Taylor v. David, 2021 ONSC 3264.
[34] Section 24 of the Limitations Act applies because the Work was completed before January 1, 2004, and no claim was commenced before that date. The limitation period for this action under the former limitation act had not expired before January 1, 2004. If the act or omission had taken place after January 1, 2004, the plaintiff’s claim would of course be subject to a limitation period under the Limitations Act. Because the claim was not discovered until after January 1, 2004, the ultimate limitation period of 15 years starts to run as if the act or omission had taken place on January 1, 2004: York Condominium Corporation No. 382 at para. 2; Section 24(5) 1. of the Limitations Act.
[35] The plaintiff did not argue that the limitation period was tolled as a result of the plaintiff’s incapacity pursuant to section 15(4)(a) of the Limitations Act. However, the plaintiff’s evidence was that he was in hospital incapacitated between March 22, 2018 and June 2018 (no date specified). His evidence is that he was comatose during this time. He was in hospital again in October 2018 to have a stent installed in his heart and was released a week later.
[36] If the plaintiff was incapable during the time of his hospitalization, it would extend the ultimate limitation period by approximately three and a half months.
[37] As a result, the 15-year limitation period began to run on January 1, 2004 and expired on January 1, 2019 at the earliest, or, on April 15, 2019 if extended by the period of incapacity.
[38] The claim was issued in July 2021. Therefore, unless the plaintiff could bring himself within one of the exceptions to the ultimate limitation period, the claim would be statute barred.
[39] Section 15(6) of the Limitations Act provides in relevant part that the day an act or omission on which a claim is based takes place is,
(a) in the case of a continuous act or omission, the day on which the act or omission ceases; (b) in the case of a series of acts or omissions in respect of the same obligation, the day on which the last act or omission in the series occurs.
[40] The plaintiff argues that the above sections apply because every time it rains it causes more damage to the Property.
[41] There is some evidence that the plaintiff is sustaining ongoing damage to the Property. The plaintiff has tendered evidence that every time it rains the problems become more severe. The plaintiff deposes that damages have increased by 30 percent since the February 10, 2019 estimate. No details are provided as to whether this is due to further damage or increased costs of repairs.
[42] The plaintiff also argues that the City has an ongoing obligation to ensure that water flows properly into catch basins, not onto adjoining property. No legal authorities were provided to support this position. The statement of claim does not plead such a duty or its breach, nor nuisance, nor any other cause of action against the City.
[43] The court in Sunset Inns Inc. v. Sioux Lookout (Municipality), 2012 ONSC 437, considered the meaning of a continuous cause of action:
[20] The generally accepted test of a continuing cause of action is found in Hole v. Chard Union, [1894] Ch. 293 (C.A.), per Lindley, L.J., at p.295
“What is a continuing cause of action? Speaking accurately, there is no such thing; but what is called a continuing cause of action is a cause of action which arises from the repetition of acts or omissions of the same kind as that for which the action was brought.”
[21] Hole was cited with approval by the Manitoba Court of Appeal in Manitoba v. Manitoba (Human Rights Commission) (1983), 25 Man. R. (2d) 117 (Man. C.A.). In that case the plaintiffs alleged discrimination as a result of their compulsory retirement at the age of 65. The Manitoba Human Rights Act prescribed a limitation period of six months “after the alleged contravention or, where a continuing contravention is alleged, after the date of the last alleged contravention of the Act.” Phelp J.A., for court, held, at para. 19.
“To be a “continuing contravention”, there must be a succession or repetition of separate acts of discriminations of the same character. There must be present acts of discrimination which could be considered as separate contraventions of the Act, not merely one act of discrimination which may have continuing affects or consequences.”
[22] In the instant case, the alleged act or acts of negligence had all occurred, at the latest, by the end of 2003. There is no allegation in the pleadings of a succession or repetition of separate acts of negligence by the defendant since 2003 such that the limitation period would continue to run on a day to day basis. The pleading that the defendant’s sewer system “is” deficient and that the defendant “is” in breach of alleged duties of care to the plaintiff does not constitute the type of repetitive and continuing conduct which is the foundation of a continuing cause of action. The plaintiff pleads that its damages relate to the costs of the installation of the lift system and the failure or refusal of the defendant to reimburse the plaintiff for those costs which were incurred in 2003 and 2004. There is no allegation of continuing damages. The damages are fixed by the pleadings, as of 2004.
[23] The principles set out by the Supreme Court of Canada in Chaudiere Machine and Foundry Co. v. Canada Atlantic Railway (1902), 33 S.C.R. 11 (S.C.C.) are also applicable to this case. In Chaudiere, in 1888, the defendant railway company built its line through a street in Ottawa and, in so doing, built a ten foot high embankment and raised the level of the street. The plaintiffs acquired land on this street in 1895. In 1900, they brought an action alleging that the level of the street was raised unlawfully, and claimed damages for flooding and for obstruction of entry to their premises. The Supreme Court of Canada held that the plaintiffs’ right to complain of trespass or nuisance arose when that trespass or nuisance was committed, which was over ten years before the action was instituted and beyond the six year limitation period. …
[24] As summarized in the headnote to Chaudiere: “Upon the erection of a work which causes recurring damage to land, a single cause of action arises in respect thereof and recovery thereon will involve the assessment of damages from all recurring injuries to the property….”
[44] The failure to rectify an alleged act of negligence does not create a continuing or series of acts of negligence.
[45] The attempt to characterize the damages as ongoing and increasing in extent and severity due to a failure to remedy the negligence does not change the fundamental nature of the claim and does not extend the limitation period.
[46] At issue in this action is a singular act of negligence – the installation and completion of the Work in 2002. There was a single alleged breach with allegedly continuing consequences. The statement of claim is framed in negligence (see paras. 1(a), 5, 6 and 26) based on the Work. There is no pleaded or factual basis for continuous acts of negligence, nor is there a series of acts or omissions in respect of the same obligation.
[47] Finally, the plaintiff asserts that section 15(4)(c)(ii) of the Limitations Act applies. That section provides that the 15-year limitation period does not run during any time in which the person against whom the claim is made wilfully misleads the person with the claim as to the appropriateness of a proceeding as a means of remedying the injury, loss or damage.
[48] The plaintiff says he was wilfully mislead by the City’s failure to advise the plaintiff that its crew did not find any issue with the catch basin on October 30, 2017 and the City’s May 23, 2019 letter indicating that a representative of the City’s insurers would be contacting the plaintiff in due course.
[49] I do not agree. First, the failure to advise the plaintiff that the City found nothing wrong with the catch basis does not, on the facts of this case, constitute misleading the plaintiff as to the appropriateness of a proceeding. There is no evidence that the City or its representatives undertook to conduct an investigation of the cause of the drainage issue or made a determination of the cause of the drainage issue before the claim was issued and told the plaintiff that he should await the outcome of such an investigation. There is no evidence that the City wilfully mislead the plaintiff as to the appropriateness of a proceeding as a means of remedying the injury.
[50] For these reasons, I find that the claim is statute barred by section 15 of the Limitations Act.
The Two-Year Limitation Period
[51] I would also find that the action is statute barred by the passage of the two-year limitation period.
[52] Section 5 of the Limitations Act provides in relevant part that:
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).
(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.
[53] At paras. 41 and 42 of Zeppa v. Woodbridge Heating & Air-Conditioning Ltd., 2019 ONCA 47, 144 O.R. (3d) 385 (C.A.), leave to appeal to S.C.C. refused [2019] S.C.C.A. No. 91, the Court of Appeal for Ontario addresses when a claimant first knows that an injury, loss, or damage has occurred and was caused by an act or omission of the defendant:
[41] The discoverability analysis under s. 5(1) of the Act involves, in part, determining when a claimant first knew that an injury, loss or damage had occurred and was caused by an act or omission of the defendant. The jurisprudence concerning when a claimant possesses such knowledge is summarized in Graeme Mew, Debra Rolph and Daniel Zacks, The Law of Limitations, 3rd ed. (Toronto: LexisNexis, 2016), at 3.50:
[I]t has been recognized that discoverability means knowledge of the facts that may give rise to the claim. The knowledge required to start the limitation running is more than suspicion and less than perfect knowledge. Or, to put it another way, the plaintiff need not be certain that the defendant's act or omission caused or contributed to the loss in order for the limitation period to begin to run. The limitation begins to run from when the plaintiff had, or ought to have had, sufficient facts to have prima facie grounds to infer the defendant's acts or omissions caused or contributed to the loss. It is reasonable discoverability -- rather than the mere possibility of discovery -- that triggers a limitation period.
See, also, Lawless v. Anderson, [2011] O.J. No. 519, 2011 ONCA 102, 276 O.A.C. 75, at paras. 22-23; Kowal v. Shyiak, [2012] O.J. No. 3420, 2012 ONCA 512, 296 O.A.C. 352, at para. 18; Lochner v. Toronto (City) Police Services Board (2015), 128 O.R. (3d) 318, [2015] O.J. No. 4795, 2015 ONCA 626, at para. 7; Beaton v. Scotia iTrade, [2012] O.J. No. 6166, 2012 ONSC 7063 (S.C.J.), at para. 13, affd [2013] O.J. No. 4095, 2013 ONCA 554.
[42] As this court observed in Lawless, at para. 23, the question to be posed in determining whether a person has discovered a claim is whether the prospective plaintiff knows enough facts on which to base a legal allegation against the defendant. [page394] In support of that proposition, Lawless cited the decision of this court in McSween v. Louis (2000), 132 O.R. (3d) 304, [2000] O.J. No. 2076 (C.A.), where Feldman J.A., writing for the majority, stated, at para. 51:
To say that a plaintiff must know the precise cause of her injury before the limitation period starts to run, in my view places the bar too high. Both the one year limitation period itself [in s. 17 of the Health Disciplines Act, R.S.O. 1990, c. H.4], as well as the production and discovery process and obtaining expert reports after acquiring knowledge through that process, are litigation procedures commonly used by a plaintiff to learn the details of how the injury was caused, or even about the existence of other possible causes and other potential defendants.
[54] Further, as noted by the court in Taylor:
[16] A plaintiff is not required to possess a comprehensive understanding of his/her potential claim in order for the limitation period to commence. As held by the Court of Appeal for Ontario in Lawless v. Anderson 2011 ONSC 102 (C.A.), “the question to be posed is whether the prospective plaintiff knows enough facts on which to base an allegation of negligence against the defendant”.
[17] As held by the Court of Appeal for Ontario in Lieu v Wong 2016 ONCA 366, it is well established that it is knowledge of the material facts necessary to support a cause of action that triggers the commencement of the limitation period, and not knowledge of the extent of the damages.
[55] A plaintiff is not required to know the full extent of damages suffered for a claim to be discovered. The Court of Appeal for Ontario summarized the law in this regard in Gillham v. Lake of Bays (Township), 2018 ONCA 667, 425 D.L.R. (4th) 178 (C.A.):
[22] While neither the extent nor the type of loss need be known, the claimant must know that some non-trivial loss has occurred, and that a proceeding would be a legally appropriate means to seek to remedy it: Markel Insurance Company of Canada v. ING Insurance Company of Canada, 2012 ONCA 218, 109 O.R. (3d) 652, at para. 34. The common law acknowledges that trivial damages do not trigger a limitation period, since a prudent plaintiff would not bring an action to recover a trivial loss: Grey Condominium Corp. No. 27 v. Blue Mountain Resorts Limited (2007), 277 D.L.R. (4th) 644 (Ont. S.C.J.), aff’d 2008 ONCA 384, 90 O.R. (3d) 321, at para. 58.
[56] By May 22, 2019, at the latest, the plaintiff was aware that:
a. the injury, loss or damage had occurred – the plaintiff had long been aware of the drainage issues and damage to his Property; b. that the injury loss or damage was caused by or contributed to by an act or omission of the City – the plaintiff believed it was caused by the Work done in 2002; and c. that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it – his lawyer was threatening legal proceedings.
[57] The plaintiff had a claim as defined in the Limitations Act – in negligence or another tort against the City, based on the construction of the Work in 2002 which caused water to flow toward the house on the Property and not away from it, and which caused cracks and damages to the Property by February 2018. The plaintiff had sufficient knowledge that he had suffered damages by January 2018. By the time of the May 22, 2019 letter from the plaintiff’s lawyer to the City, wherein the plaintiff’s lawyer says he is retained to commence proceedings and threatens proceedings, the plaintiff knew that a proceeding would be an appropriate means to seek a remedy.
[58] The plaintiff has produced no evidence that, other than the March 2021 formal denial of his claim asserted against the City, he learned anything further that clarified that he had a claim against the City and that a proceeding would be an appropriate means to remedy it.
[59] The plaintiff says that section 5(1)(iv) of the Limitations Act was not met until the City formally denied his claim on March 12, 2021 and the claim was commenced with the two-year limitation period. I do not agree.
[60] Whether an action is appropriate depends on the specific factual or statutory setting of each individual case. Because of this, case law applying section 5(1)(a)(iv) is of limited assistance: See 407 ETR Concession Co. v. Day, 2016 ONCA 709, 133 O.R. (3d) 762 (C.A), at para. 34, leave to appeal to S.C.C. refused [2016] S.C.C.A. No. 509, and Presidential MSH Corporation v. Marr Foster & Co. LLP, 2017 ONCA 325, 135 O.R. (3d) 321 (C.A.), at para. 18.
[61] 407 ETR is not authority that a civil action is never an appropriate proceeding until after an alternative process has run its course: Beniuk v. Leamington (Municipality), 2020 ONCA 238, 150 O.R. (3d) 129 (C.A.), at paras. 58, 60, 63 and 74. Each case turns on its own facts: Beniuk at para. 61.
[62] A letter from the City that the firm which administers the City's public liability insurance would be contacting the plaintiff, and a subsequent request for videos of the water issue and damage, is not an alternative process or another resolution process that would eliminate the loss and thereby avoid needless litigation in the sense described the Court of Appeal for Ontario in 407 ETR and similar cases.
[63] The City was not offering any assistance to the plaintiff. The plaintiff was represented by a lawyer. The City was responding to a demand from the plaintiff’s lawyer.
[64] The plaintiff has not explained why he chose to wait almost two years for a response from the City to his demands when his lawyer had already been retained to commence proceedings in May 2019. There is nothing in the evidence to suggest that there was a process underway to determine the cause of the problem or to compensate the plaintiff. On these facts, a response from the City that the plaintiff would be contacted, without more, does not delay the running of the limitation period.
[65] In my view, the plaintiff was not required to wait for the City to respond to his demands. If that were sufficient to toll a limitation period, it seems to me that no claim would be statute barred so long as a would-be plaintiff demanded that a would-be defendant respond to the plaintiff’s demands and compensate the plaintiff and the demand remained outstanding. Such an outcome would defeat the purpose and intent of the Limitations Act.
[66] If the two-year limitation period were still applicable, the claim would be statutorily barred for having been commenced more than two years after the plaintiff discovered his claim.
Conclusion
[67] I find that there is no genuine issue requiring a trial on the evidence before me. On the evidence, I am able to reach a fair and just determination on the merits, make the necessary findings of fact, and apply the law to the facts. Determining this matter on a motion for summary judgment is a proportionate, more expeditious and less expensive means to achieve a just result.
[68] The parties filed bills of costs and made submissions as to costs at the conclusion of the motion. I have considered the applicable principles in the case law and the Rules.
[69] I make the following orders:
a. The plaintiff’s action is dismissed; b. The plaintiff shall pay to the City costs of the action, including the motion for summary judgment, fixed in the amount of $3,500 inclusive of disbursements and HST within 60 days of the date of the release of these reasons.
M. Bordin J.
Released: May 16, 2023