2023 ONSC 4496

Court File and Parties

Court File No.: CV-2000/17 Date: 20230801

Ontario Superior Court of Justice

Between: Mitchell Cox and Candace Cox, Plaintiffs/Responding Parties

And: Ivan B. Wallace Ontario Land Surveyors Ltd., 2021 and Crystal Cranch, Defendants/Moving Parties

Counsel: M. Kathleen Kinch and J. Khoury-Hanna, for the Plaintiffs Deepshikha Dutt and Radha Lamba, for the Defendants/Moving Parties

Heard: November 25, 2022.

Before: J.C. Corkery J.

A. Overview

[1] In 2011, the plaintiffs entered into an agreement to purchase Lot 97 on Plan 57 in the Village of Castleton. They planned to convert the mill on the property into a studio. To the north of Lot 97 lies Lot 98. Between lots 97 and 98 is a strip of land, an “Unnamed Street.”

[2] At the time the plaintiffs agreed to purchase Lot 97, they understood that the Unnamed Street was owned by Cramahe Township. The mill was adjacent to the Unnamed Street such that the ground level and north side of the mill were accessible only from the Unnamed Street.

[3] Unbeknownst to the plaintiffs when they agreed to purchase Lot 97, the owners of Lot 98 were already in the process of purchasing the Unnamed Street from the Township. Only after the sale of Lot 97 had closed did the plaintiffs discover that the owners of Lot 98 were also now the owners of the Unnamed Street. The owners of Lot 98 built a fence against the side of the mill leaving the plaintiffs with no access to the ground level and north side of the mill.

[4] The plaintiffs commenced three actions. The defendants in the first action are the owners of Lot 98 and the Township. The defendants in the second action are the plaintiffs’ real estate lawyer and their title insurance company. The defendants in the third action, this action, are the surveyors of part of Lot 98 and the Unnamed Street.

[5] The defendants bring this motion for summary judgment. They seek to have the plaintiffs’ claim dismissed because it is outside the limitation period and it is an abuse of process.

B. Background

The IBW Plan

[6] In April 2010, the defendant Ivan B. Wallace Ltd. (“IBW”) was retained by Carter Thompson Law to prepare a reference plan in anticipation of the sale of Lot 98.

[7] On May 10, 2010, the defendant, Crystal Cranch, an employee of IBW, completed a preliminary reference plan showing portions of Lot 97 and Lot 98 and the Unnamed Street between them. On May 27, 2010, reference Plan 39R-12293 (the “IBW Plan”) was deposited at the Northumberland Land Registry Office. The boundary line between Lot 97 and the Unnamed Street is shown on Part 4 of the IBW Plan (the “boundary line”).

The closure and sale of part of the Unnamed Street

[8] In the summer of 2010, the owners of Lot 98 submitted an Application for Closure of Road Allowance to the Township for Parts 3 and 4 on the IBW Plan, being parts of the Unnamed Street between Lots 97 and 98.

[9] On March 8, 2011, the Township passed a bylaw approving the closure and conveyance of both Parts 3 and 4 of the Unnamed Street to the owners of Lot 98. On June 3, 2011, the Township registered the bylaw in the Northumberland Land Registry Office. On October 4, 2011, the Township registered the transfer of Parts 3 and 4 to the owners of Lot 98.

The plaintiffs purchase lot 97

[10] On May 16, 2011, the plaintiffs executed an Agreement of Purchase and Sale for Lot 97.

[11] On Lot 97 was an old home and an old mill. The plaintiffs planned to renovate the mill and use it as a studio space for themselves and other professional artists. They wanted to create a cultural hub and a venue for the community. Access over the Unnamed Street was important to the plaintiffs when they purchased Lot 97 as they planned to renovate the old mill and create an artists’ studio and cultural hub. The plaintiffs did not obtain a survey.

[12] On July 15, 2011, the plaintiffs’ purchase of Lot 97 closed.

The first action

[13] In the fall of 2011, the plaintiffs began renovating the mill. In the summer of 2012, the owners of Lot 98 built a fence on the boundary line along the side of the mill. The fence blocked the plaintiffs’ access to the ground level and north side of the mill and brought their renovation of the mill to a halt.

[14] On November 4, 2013, the plaintiffs commenced an action against the owners of Lot 98 and the Township (CV-85470/13). The plaintiffs pleaded:

a. “The mill is accessed through an unnamed road allowance.”

b. They “intended to use the mill for a multipurpose performance venue which would include studio space, performance area and a small museum”.

c. The owners of Lot 98:

i. “provided the Township with false or misleading information regarding their purchase of the [Unnamed Street]”;

ii. “informed the Township that the sale of the road allowance… would not cause any access difficulties for other property owners”;

iii. “were aware that access to the mill was through the road allowance”;

iv. “fraudulently or negligently represented to the Township that the sale of the road allowance would not affect access for other property owners”.

d. “[T]he Township was negligent in relation to its investigation of the sale of the road allowance.”

e. “That the Township knew, or ought to have known, that the only access to the mill was through the road allowance.”

f. The Township was negligent in that:

i. “It failed to complete any, or proper, investigation in relation to the consequences of selling the road allowance’;

ii. “It failed to properly notify adjacent land owners of the potential sale of the road allowance”;

iii. “It failed to properly, assess the application … for the purchase of the road allowance”;

iv. “…it failed to take reasonable steps to correct the resulting situation and harm to the plaintiffs”.

[15] As a consequence of being unable to access the mill the plaintiffs claimed damages for their loss in income and the loss of their property value as a result of the negligence of the owners of Lot 98 and the Township and the fraudulent statement of the owners of Lot 98.

[16] On June 9, 2017, the plaintiffs amended their claim to add claims for conversion, trespass, unjust enrichment, and negligence and to seek the following orders:

a. Order of ejectment against the owners of Lot 98.

b. Order for recovery of lands from the owners of Lot 98.

c. Order quashing the decision of the Township to sell certain lands.

d. Order of mandamus requiring the Township to repeal by-law 2011-12.

[17] In 2018, one of the defendants in the first action added the defendants in this action as third parties.

The second action

[18] On November 4, 2013, the plaintiffs also commenced an action against their solicitor for the purchase of Lot 97 and their title insurance company (CV-85971/13). In an amended Statement of Claim issued November 23, 2015, the plaintiffs deleted the title insurance company.

[19] In the second action, the plaintiffs plead that their solicitor:

a. was aware that the owner of Lot 97 had applied to the Township to purchase the Unnamed Street;

b. knew that a by-law permitting the transfer and purchase had been passed but was not yet registered;

c. acted on behalf of the Township in relation to the sale of the road allowance;

d. was negligent, including that he:

i. failed to conduct a proper title search or inform the plaintiffs of the results;

ii. failed to make proper inquiries of the Township;

iii. failed to make sure the plaintiffs would have access to the property, including the mill;

iv. failed to notify the plaintiffs of the efforts of the owner of Lot 98 to purchase the Unnamed Street;

v. failed to obtain a survey;

vi. failed to advise the plaintiffs of a potential conflict of interest; and

vii. obtained residential title insurance knowing that the property was to be developed for commercial purposes.

[20] The plaintiffs also plead breach of contract and breach of fiduciary duty.

[21] The plaintiffs claim damages for being unable to access the mill, resulting in loss of income and the loss of their property value.

[22] The second action was dismissed on consent in 2019, with prejudice and without costs. No liability was admitted by the plaintiffs’ solicitor. The release was disclosed to counsel for the defendants.

New information

[23] In late February or early March 2015, the plaintiffs discovered what appeared to be milling accoutrements on the land that had been part of the Unnamed Street. The plaintiffs contacted the Association of Ontario Land Surveyors to inquire whether this might be evidence that this land was actually part of Lot 97 and were advised to obtain a second surveyor’s opinion.

[24] On March 17, 2015, the plaintiffs retained surveyor Tom Packowski at Cunningham McConnell Land Surveyors to “review the limit between Lot 97 and the unnamed road on Registered Plan 57”. On April 30, 2015, Mr. Packowski reported that he “would have likely drawn the same inference from the evidence and prepared the survey in much the same way” as the defendants. However, the plaintiff Candace Cox also learned from Mr. Packowski that the only way that the line shown between Lot 97 and the Unnamed Street could have potentially been placed in error was if there had been a second mill.

[25] On June 29, 2015, Mr. Packowski provided a second report. Considering information provided to him by the plaintiffs and his own research, he states “…we determined that it was likely that there were other Mills in the area of the current Mill around the time that Plan 57 was registered.” However, he concludes,

After a careful review of the results of our field work and of the documentary information, we have examined the limit between Lot-97 and the unnamed road. In our opinion, without further evidence as to the location of any other Mill on Lot 97, we are unable to come to any other conclusion as to the limit in question than the limit as shown on Part 4, Plan 39R-12293.

[26] From July to August 2015, the plaintiffs were out of the country. When they returned, the plaintiff Candace Cox reviewed all of the documents she had pertaining to Lot 97. In August or September 2015, Ms. Cox defendants met with Crystal Cranch at her office to ask her some questions. The meeting prompted Ms. Cranch to look into the matter further. This was the first time that Ms. Cox learned that the boundary line depicted on the IBW Plan might be wrong.

[27] On November 2, 2015, Ms. Cranch confirmed that she would review her opinion and undertake further work to confirm or correct her opinion as represented in the IBW Plan.

[28] Relying on new evidence, Crystal Cranch changed her opinion as to the position of the Unnamed Street and location of the boundary between Lot 97 and the Unnamed Street in January 2016.

[29] On March 28, 2017, the defendants submitted an application for confirmation of the boundary between Lot 97 and the Unnamed Street, pursuant to subsection 3(1) of the Boundaries Act, R.S.O. 1990, c. B.10. Included with the application was a draft reference plan reflecting the revised opinion of Ms. Cranch, showing a different boundary between Lot 97 and the Unnamed Street. The boundary line now incorporated most of part 4 and some of part 3 on the IBW Plan. The boundary line moved to the north, increasing the size of Lot 97 and reducing the size of the Unnamed Street such that the Unnamed Street was no longer adjacent to the mill.

[30] In the application, Ms. Cranch states her reasons for revising her opinion as to the location of the Unnamed Street and the boundary between Lot 97 and the Unnamed Street. The primary reason was that she learned there was a second older mill depicted on Plan 57 and on Registered Plan 3. This was now the best evidence available to Ms. Cranch to determine the original location of the south limit of the Unnamed Street, being the boundary between Lot 97 and the Unnamed Street.

[31] On June 8, 2018, the Boundaries Act application was approved.

Third action (this action)

[32] This action was commenced by Notice of Action filed on July 18, 2017 (CV-2000/17).

[33] The plaintiffs plead that:

a. The defendant Crystal Cranch had a duty of care to the plaintiffs as adjoining landowners in preparing the IBW Plan to ensure that she took any and all reasonable steps necessary to ensure that she properly identified the boundary between the plaintiffs’ property (Lot 97) and the Unnamed Street.

b. the defendant Crystal Cranch was negligent in failing to meet her duty of care by conducting a full and thorough review of all of the historical and physical evidence available to her when she prepared the IBW Plan.

c. The defendant, Ivan B. Wallace Ontario Land Surveyors Ltd., 2021, is vicariously liable for the acts of the defendant Crystal Cranch.

[34] The plaintiffs claim damages resulting from the negligence of Crystal Cranch for loss of business due to the inability to access and restore the existing mill, loss of use of the property and legal fees incurred trying to regain access to the mill.

C. The Issues

[35] The defendants raise two issues on this motion for summary judgement:

1. whether the plaintiffs’ action is statute barred by the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, and

2. whether the plaintiffs have commenced a multiplicity of proceedings that are an abuse of the court’s process such that the plaintiffs’ action should be stayed.

D. The Position of the Parties

1. The limitation period

[36] The defendants submit that the plaintiffs knew or ought to have known through the exercise of reasonable of diligence of a claim against the defendant when they commenced the first action in November 2013. At the very latest, they ought to have known of a claim by March 2015.

[37] The plaintiffs respond that their claim against the defendants was not discoverable before August or September 2015 when Candace Cox met with Crystal Cranch. This was the first time that Ms. Cox was aware that the boundary line shown on the IBW Plan might be wrong. Their claim was brought within the limitation period. Furthermore, the plaintiffs submit that the ongoing professional efforts by Ms. Cranch to correct the boundary line extended the limitation period.

2. Abuse of process

[38] The defendants argue that this action is an abuse of process as the plaintiffs have commenced parallel litigation for the same damages to: avoid seeking leave of the Court to add parties to a claim which is statute barred; avoid administrative dismissals by commencing multiple actions; and avoid limitations on recovery by circumventing the joint and several liability rules that would have them identify damages that they could have sought from other defendants as they settled other claims.

[39] The plaintiffs submit that there is no unfairness to the defendants in this proceeding. The first action is approaching administrative dismissal as court ordered deadlines have not been met. The second action was dismissed without costs and with prejudice. The release was disclosed to counsel for the defendants.

[40] In this action, the litigation landscape has fundamentally shifted. The issue has changed from whether the owners of lot 97 fraudulently or negligently represented to the Township that the sale of the Unnamed Street would not affect other property owners and whether the Township should have permitted the sale to whether the boundary line in the IBW Plan was in the right place.

E. Analysis

[41] The parties agree that this motion is properly before the court as a motion for summary judgment. A court shall grant summary judgment pursuant to Rule 20.04(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 where there is no genuine issue requiring a trial.

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. Hryniak v. Mauldin, 2014 SCC 7 at para. 49.

[42] The parties must put their “best foot forward” on a summary judgment motion and judgment shall be granted only if the court can make the necessary factual findings.

1. The limitation period

[43] The governing provisions of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, in this case, are sections 4 and 5, which read as follows:

Basic limitation period

4. 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

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.

[44] A motion for summary judgment based on a limitation period requires the court to make certain findings of fact:

[35] Accordingly, a typical summary judgment motion involving the basic limitation period requires the judge to determine whether the record enables making a series of findings of fact, with the certainty required by Hryniak, on the following matters: (i) the date the plaintiff is presumed to know the matters listed in s. 5(1)(a)(i)-(iv) -- namely, the day on which the act or omission on which the claim is based occurred; (ii) the date of actual knowledge under s. 5(1) (a), in the event the evidence proves the contrary of the presumptive date; (iii) the s. 5(1)(b) objective knowledge date, based on the reasonable person with similar abilities and circumstances analysis; and (iv) finally, which of the actual knowledge and objective knowledge dates is earlier, for that will be day on which the plaintiff discovered the claim for purposes of applying the basic limitation period of two years. Nasr Hospitality Services Inc. v. Intact Insurance, 2018 ONCA 725, at para 35.

a) What is the date that the plaintiffs are presumed to know the matters listed in s. 5(1)(a)(i)-(iv)?

[45] The date that the plaintiffs are presumed to know the matters listed in s. 5(1)(a) is the day the act or omission on which the claim is based took place (s. 5(2)). In this case, I find that day to be May 27, 2010, the day that the IBW Plan was deposited.

[46] The reference plan reflected Crystal Cranch’s opinion of the location of the boundary between Lot 97 and the Unnamed Street.

[47] Subsection 150(1) of the Land Titles Act, R.S.O. 1990, c. L.5. requires that a reference plan prepared by an Ontario land surveyor be deposited before a transfer or charge can be registered:

A reference plan is intended to eliminate the need for a metes and bounds description of property in a registered instrument. Pursuant to s. 150(1) and (2) of the Land Titles Act, reference plans are required to be deposited in the land registry office where a party is seeking to register a transfer or charge of a parcel of land that is not the whole of a registered parcel of land, or the whole of a lot or block on a subdivision plan, or the whole of a part on a previously recorded reference plan of survey. The function of the reference plan is to provide a convenient graphic description of the property being transferred or subject to a charge: see Donald H.L. Lamont, Lamont on Real Estate Conveyancing, looseleaf (2011-Rel. 7), 2nd ed., vol. 2 (Toronto: Carswell, 1991), at p. 28-19. MacIsaac v. Salo, 2013 ONCA 98, at para 44.

[48] Arguably every reference plan, every survey, relies to some degree on the opinion of the surveyor. Such professional opinion can only be based on the best information available to the surveyor at the time the opinion is formed. Should more information become available, any such opinion can be subject to review and change, based on the new information. In this case, I find that the depositing of the IBW Plan to be the act on which the claim is based. However, this finding is only with respect to the determination of the discoverability of this claim and the presumptive date under s. 5(2).

b) What is the date of actual knowledge under s. 5(1)(a), in the event the evidence proves the contrary of the presumptive date?

[49] The Supreme Court of Canada considered the requisite degree of knowledge to discover a claim under s. 5 in Grant Thornton LLP v. New Brunswick, 2021 SCC 31. Moldaver J. proposed the following approach, “…a claim is discovered when a plaintiff has knowledge, actual or constructive, of the material facts upon which a plausible inference of liability on the defendant’s part can be drawn”. Under the Limitations Act, a claim is discovered when a plaintiff has actual or constructive knowledge of s. 5(2)(a) to (c):

(a) the injury, loss or damage occurred

(b) the injury loss or damage was caused by or contributed to by an act or omission; and

(c) the act or omission was that of the defendant.

[50] These requirements are cumulative: knowledge of a loss, without more, for example, is insufficient to trigger the limitation period (Grant Thornton, paragraph 43).

[51] Considering the assessment of a plaintiff’s state of knowledge, Moldaver J. explains:

[44] In assessing the plaintiff’s state of knowledge, both direct and circumstantial evidence can be used. Moreover, a plaintiff will have constructive knowledge when the evidence shows that the plaintiff ought to have discovered the material facts by exercising reasonable diligence. Suspicion may trigger that exercise (Crombie Property Holdings Ltd. v. McColl-Frontenac Inc., 2017 ONCA 16, 406 D.L.R. (4th) 252, at para. 42).

[45] Finally, the governing standard requires the plaintiff to be able to draw a plausible inference of liability on the part of the defendant from the material facts that are actually or constructively known. …

[46] The plausible inference of liability requirement ensures that the degree of knowledge needed to discover a claim is more than mere suspicion or speculation. This accords with the principles underlying the discoverability rule, which recognize that it is unfair to deprive a plaintiff from bringing a claim before it can reasonably be expected to know the claim exists. At the same time, requiring a plausible inference of liability ensures the standard does not rise so high as to require certainty of liability (Kowal v. Shyiak, 2012 ONCA 512, 296 O.A.C. 352) or “perfect knowledge” (De Shazo, at para. 31; see also the concept of “perfect certainty” in Hill v. South Alberta Land Registration District (1993), 1993 ABCA 75, 8 Alta. L.R. (3d) 379, at para. 8). Indeed, it is well established that a plaintiff does not need to know the exact extent or type of harm it has suffered, or the precise cause of its injury, in order for a limitation period to run (HOOPP Realty Inc. v. Emery Jamieson LLP, 2018 ABQB 276, 27 C.P.C. (8th) 83, at para. 213, citing Peixeiro, at para. 18).

[52] The evidence in this case proves the contrary of the presumptive date.

[53] Crystal Cranch did not know at the time she deposited the IBW Plan that her opinion as to the location of the boundary line would change.

[54] At the time that the IBW Plan was deposited there was no plausible inference of liability that could be drawn against the defendants by the plaintiffs.

[55] I find that the plaintiff did not have actual or constructive knowledge of s. 5(2)(a) to (c) until the August or September 2015, meeting between Candace Cox and Crystal Cranch. It was at this meeting that Ms. Cox first discovered that it was actually possible that the boundary line on the IBW Plan was wrong. There was now a plausible inference that the boundary line was wrong. Prior to this meeting, Ms. Cox only had suspicions.

[56] When Ms. Cox found the mill accoutrements on the Unnamed Street, Ms. Cox’s suspicions “triggered” her due diligence to pursue the matter further. Her due diligence led her to make inquiries of the Association of Ontario Land Surveyors and to retain Tom Packowski. However, given the opinions of Mr. Packowski, it remained only speculation for Ms. Cox to infer that the boundary line representation on the IBW Plan was incorrect. She did not yet have the degree of knowledge needed to discover a claim. Only then could was she able to draw a plausible inference of liability of the defendants.

[57] The date the plaintiffs had actual knowledge of their claim under s. 5(1)(a) is when Candace Cox and Crystal Cranch met in August or September 2015.

c) What is the objective knowledge date, based on the reasonable person with similar abilities and circumstances analysis, under s. 5(1)(b)?

[58] A reasonable person with similar abilities and circumstances in this case could not have knowledge of the claim before the August or September 2015, meeting between Ms. Cox and Ms. Cranch. A reasonable person with similar abilities and in similar circumstances as the plaintiffs would not have the knowledge of a surveyor.

[59] A plausible inference of liability requires a degree of knowledge rising above a mere suspicion or speculation. A reasonable person in these circumstances, particularly given the opinions of Mr. Packowski could do more than speculate or suspect that the boundary line was incorrect.

[60] At the meeting, Ms. Cox presented to Ms. Cranch the information she had gathered about a possible second mill and the location of the boundary. In response, Ms. Cranch began what she described as a “massive amount of research” [Examination of Crystal Cranch, February 11, 2022, Question 254]. This meeting was the earliest that a plausible inference of liability could reasonable be drawn against the plaintiffs.

[61] The objective knowledge date under s. 5(1)(b) is when Candace Cox and Crystal Cranch met in August or September 2015.

d) Which date is earlier the actual knowledge date or the objective knowledge date?

[62] The dates are the same: when Candace Cox and Crystal Cranch met in August or September 2015.

[63] This action was commenced on July 18, 2017, within the two-year limitation period.

e) The suspension of the limitation period while the defendants worked on correcting the problem

[64] The plaintiffs submit that it would have been premature for the plaintiffs to bring court proceedings where there were alternative “appropriate means” to remedy their claims, in this case, the Boundaries Act application.

[65] The appropriate means exception was considered by Brown J.A. in Nasr Hospitality Services Inc.:

[46] In commencing his analysis under s. 5(1)(a)(iv) of the Act, the motion judge properly noted the general proposition that the determination of when an action is an appropriate means to seek to remedy an injury, loss or damage depends upon the specific factual or statutory setting of each individual case: 407 ETR Concession Co. v. Day (2016), 133 O.R. (3d) 762, [2016] O.J. No. 5006, 2016 ONCA 709, at para. 34, leave to appeal to S.C.C. refused [2016] S.C.C.A. No. 509; Winmill v. Woodstock (City) Police Services Board (2017), 138 O.R. (3d) 641, [2017] O.J. No. 6406, 2017 ONCA 962, at para. 23, leave to appeal to S.C.C. refused [2018] S.C.C.A. No. 39.

[47] However, as this court has observed, that general proposition is not an unbounded one.

[48] First, in Markel Insurance this court confined the meaning of "appropriate" to "legally appropriate". Writing for the court, Sharpe J.A. stated, at para. 34:

This brings me to the question of when it would be "appropriate" to bring a proceeding within the meaning of s. 5(1)(a)(iv) of the Limitations Act. Here as well, I fully accept that parties should be discouraged from rushing to litigation or arbitration and encouraged to discuss and negotiate claims. In my view, when s. 5(1) (a)(iv) states that a claim is "discovered" only when "having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it", the word "appropriate" must mean legally appropriate. To give "appropriate" an evaluative gloss, allowing a party to delay the commencement of proceedings for some tactical or other reason beyond two years from the date the claim is fully ripened and requiring the court to assess to tone and tenor of communications in search of a clear denial would, in my opinion, inject an unacceptable element of uncertainty into the law of limitation of actions.

(Italics in original; underlining added)

[49] Second, in 407 ETR, Laskin J.A. noted, at para. 47, that the use of the phrase "legally appropriate" in Markel Insurance, "signified that a plaintiff could not claim it was appropriate to delay the start of the limitation period for tactical reasons, or in circumstances that would later require the court to decide when settlement discussions had become fruitless" (emphasis added).

[50] Finally, in Presidential MSH Corp. v. Marr, Foster & Co. LLP (2017), 135 O.R. (3d) 321, [2017] O.J. No. 2059, 2017 ONCA 325, Pardu J.A. observed that the jurisprudence discloses two circumstances in which the issue of appropriate means most often delays the date on which a claim was discovered. First, resorting to legal action might be inappropriate in cases where the plaintiff relied on the superior knowledge and expertise of the defendant, especially where the defendant undertook efforts to ameliorate the loss: at para. 26. Second, a legal action might not be appropriate if an alternative dispute resolution process "offers an adequate alternative remedy and that process has not fully run its course": at para. 29.

[66] In this case, the plaintiffs relied on the “superior knowledge and expertise of the defendant[s]” to prepare and submit the Boundaries Act application. The defendants undertook efforts to ameliorate the loss. The Boundaries Act application claim did ameliorate some of the damages claimed resulting from loss of business due to the inability to access and restore the existing mill, loss of use of the property. If the application were not brought, or if it was unsuccessful, the plaintiffs would be seeking increased ongoing damages.

[67] Although the Boundaries Act application could not completely ameliorate the plaintiffs’ claim, I am satisfied that while the application was being pursued, a legal process was not the appropriate means to seek a remedy. However, having found that the claim was brought within the two-year limitation period, I need not calculate how long the discovery date was delayed. If I had to determine how the effect of the Boundaries Act application being brought by the defendants, I would find that the commencement of the limitation period was postponed until the application was approved on June 8, 2018.

2. Abuse of process

[68] The defendants submit that the plaintiffs’ commencement of multiple actions involving with the same material facts and damages is an abuse of this Court’s process in an attempt to avoid limitation periods and the joint and several liability rules.

[69] While similar damages have been sought with respect to each action in this matter, the facts as pleaded are different. This action is solely concerned with the location of the boundary line between Lot 97 and the Unnamed Street as shown on the IBW Plan. The facts pleaded in the other two actions concern unrelated issues and did not suggest or even contemplate that the boundary line shown on the IBW Plan was located in the wrong place.

[70] This action is distinguishable from the court’s decision in Ntakos Estate v. Ntakos, 2021 ONSC 2492. In that case the plaintiffs commenced very similar actions against with same defendants adding two new defendants. The plaintiffs were aware of the facts and the role of the two added defendants at the time they commenced the first action. The court concluded that the plaintiffs brought the new claim based on the perception that they now had a better case. Unlike the Ntakos case, the plaintiffs in this case had no knowledge of the facts pertaining to the defendants in this claim when they brought the first two claims.

[71] The facts pleaded in this case are separate and distinct from the allegations in the other actions. Bringing this action separately does not amount to an abuse of process. The second action has been dismissed on consent and the first action is not being pursued. If there are any issues with respect to contribution or joint and several liability, an abuse of process remedy is not the solution. There is no evidence that the plaintiffs were seeking to avoid their obligations under the rules. There are no agreements between the plaintiffs and parties to the other actions that have not been disclosed.

[72] There is no abuse of process in the plaintiffs commencing this action.

F. Conclusion

[73] The defendants’ motion for summary judgment is dismissed.

[74] If the parties are unable to agree on costs, they may file written submissions up to five pages in length together with a bill of costs, within fourteen days of the date of the release of these reasons.

J.C. Corkery J.

Released: August 2, 2023

Cox et al v. Ivan B. Wallace Ontario Land Surveyors Ltd., 2021, et al, 2023 ONSC 4496 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Cox et al v. Ivan B. Wallace Ontario Land Surveyors Ltd., 2021, et al, REASONS FOR JUDGMENT Justice J. C. Corkery

Released: August 2, 2023