COURT FILE NO.: CV-20-00636729-0000
DATE: 20240104
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BHAVANBHAI BHOOLA
Plaintiff
– and –
THE CORPORATION OF THE CITY OF VAUGHAN
Defendant
Michael Beeforth and Camila Maldi, for the Plaintiff
Robert Smith and Charles A. Painter, for the Defendant
HEARD: December 5, 2023
papageorgiou j.
Overview
[1] In the spring of 2017, Mr. Bobby Bhoola’s home sustained damage following torrential rainstorms. The foundation underlying the house’s rear addition separated from the rest of the house. Mr. Bhoola had to spend $94,495.05 to remediate the damage.
[2] The previous owner of the house had built the rear addition in 1981. The City of Vaughan (the “City”) had issued a building permit to this previous owner without obtaining the approval of the Toronto and Region Conservation Authority (the “TRCA”) as required by applicable legislation. Mr. Bhoola claims that the City was negligent, and that this negligence had created a situation where damage of this nature was likely to occur.
[3] The City now seeks to dismiss this action as barred under the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (the “Act”) by way of summary judgment.
Decision
[4] For the reasons that follow, I am granting the motion and dismissing this action.
Issues
[5] In arriving at my decision, I have considered the following issues:
• Issue 1: Is Mr. Bhoola’s claim outside the two-year limitation period under the Act?
• Issue 2: Is Mr. Bhoola’s claim outside the 15-year ultimate limitation period under the Act?
Analysis
[6] Before considering the issues, I set out here the test for summary judgment.
The summary judgment test
[7] In accordance with r. 20.04(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial.
[8] In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and a judge may exercise any of the following powers under r. 20.04(2.1): (1) weighing the evidence; (2) evaluating the credibility of a deponent; and (3) drawing any reasonable inference from the evidence.
[9] The Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49, succinctly explained when there will be no genuine issue for 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.
[10] In order to defeat a motion for summary judgment, the responding party must put forward some evidence to show that there is a genuine issue requiring a trial. Indeed, each side must “put their best foot forward” with respect to the existence or non-existence of material issues to be tried: Mazza v. Ornge Corporate Services Inc., 2016 ONCA 753, 62 B.L.R. (5th) 211, at para. 9. Furthermore, “a summary judgment motion cannot be defeated by vague references as to what may be adduced if the matter is allowed to proceed to trial”: Diao v. Zhao, 2017 ONSC 5511, at para. 18.
Issue 1: Is Mr. Bhoola’s claim outside the two-year limitation period under the [Act](https://www.canlii.org/en/on/laws/stat/so-2002-c-24-sch-b/latest/so-2002-c-24-sch-b.html)?
[11] Pursuant to s. 4 of the Act, a proceeding shall not be commenced “after the second anniversary of the day on which the claim was discovered.”
[12] Section 5 then sets out the principles which govern when a claim is 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), 2002, c. 24, Sched. B, s. 5 (1).
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. 2002, c. 24, Sched. B, s. 5 (2).
[13] A typical summary judgment motion involving the basic limitation period requires the court to determine whether the record enables making a series of findings of fact on the following:
a. Presumption: the day on which the act or omission on which the claim is based occurred;
b. Actual knowledge: the date of actual knowledge under s. 5(1)(a), but only if the plaintiff’s evidence proves the contrary of the presumptive date;
c. Objective knowledge: the s. 5(1)(b) objective knowledge date, based on the reasonable person with similar abilities and circumstances; and
d. Which of the actual knowledge and objective knowledge dates is earlier, for that earlier date will be the day on which the plaintiff discovered the claim for the purposes of applying the basic limitation period of two years.
See Nasr Hospitality Services Inc. v. Intact Insurance, 2018 ONCA 725, 142 O.R. (3d) 561, at paras. 34-35; Morrison v. Barzo, 2018 ONCA 979, 144 O.R. (3d) 600, at para. 29.
The Presumptive Date
[14] Mr. Bhoola’s claim is that the City was negligent when it issued a building permit to the prior owner, who built the rear addition, without approval from the TRCA.
[15] Thus, the act or omission occurred when the City issued the building permit to the previous owner, which was on October 19, 1981.
[16] Therefore, the presumptive date is October 19, 1981.
Objective knowledge: s. 5(1)(b)
[17] In Grant Thornton LLP v. New Brunswick, 2021 SCC 31, at paras. 42-46, the Supreme Court indicated that a claim is discovered when a plaintiff has knowledge, actual or constructive, of the material facts upon which a plausible inference of liability can be drawn. A plaintiff will have constructive knowledge when the evidence shows that the plaintiff ought to have discovered the material facts by exercising reasonable diligence.
[18] The analysis pursuant to s. 5(1)(b) is based upon “a reasonable person with the abilities and in the circumstances of the plaintiff”: Presidential MSH Corporation v. Marr, Forster & Co. LLP, 2017 ONCA 325, 135 O.R. (3d) 321, at para. 18.
[19] Mr. Bhoola is a person with extensive knowledge about building processes, municipal and conservation authority requirements and construction permits. He has worked for many years in a senior role at Ballantry Homes, a real estate developer. He admits that this company has built 3,000 homes. He also admits that he knew, from experience, that a building permit is required to build a foundation and that permission must be obtained from a conservation authority for any work done within its jurisdiction.
[20] As will be seen, he also had extensive knowledge of instability with respect to this property for many years.
[21] Mr. Bhoola purchased his home in 1988. In 1991, Mr. Bhoola constructed a basement underneath the western addition to his house.
[22] On March 23, 1992, the TRCA wrote a seven-page letter to Mr. Bhoola setting out its concerns about the slope located to the west of his house; this construction raised a high probability for serious erosion and slope destabilization.
[23] In 2010, Mr. Bhoola started to notice small cracks in the foundation and walls of the rear addition. Then, heavy rain caused the soil adjacent to the western addition to settle. In 2013, Mr. Bhoola applied for and received a building permit to underpin the foundation underlying the rear addition that was referred to in the 1992 TRCA letter.
[24] A July 17, 2013 Arcon Engineering Consultants Limited report confirmed that displacement and settlement was caused by “movement of the underlying soil conditions resulting in the settlement of the floor slab and foundation” at the rear of Mr. Bhoola’s house.
[25] On September 10, 2013, as part of his application for a building permit to address these issues, Mr. Bhoola submitted a geotechnical investigation and slope stability study completed by Soil Engineers Ltd. to the City (the “September 2013 Report”).
[26] The September 2013 Report indicated that Mr. Bhoola’s house was built on fill that was “unsuitable for supporting structures.” It also indicated that the slope located to the west of Mr. Bhoola’s house was only “marginally stable within the Ontario Ministry of Natural Resources (OMNR) guideline requirements for active land use”. It recommended that Mr. Bhoola take steps to improve the bearing capacity of the soil under and adjacent to the west wall of his house in order to prevent the occurrence of localized surface slides and to improve the stability of the house’s foundation.
[27] Then, beginning in April 2017, Mr. Bhoola noticed the foundation and concrete slab in the west end of his house sank after a number of significant storms. The soils behind the house eroded, causing the soil to slump and create a steep scarp measuring approximately 1 metre in height and 46 metres in length that ran across a portion of the property near the house. The soil beneath the rear addition shifted and dropped considerably, resulting in severe displacement of the foundation of the house.
[28] In an effort to mitigate the damages and save his house, Mr. Bhoola engaged an engineering firm to stabilize what was left of the rear addition by installing helical piles, anchors and steel beams.
[29] On August 29, 2017, the City’s Building Standards Department attended at the property to inspect the house and the damage. Following the inspection, the Building Standards Department declared the house to be unsafe due to structural damage and issued an Order to correct the unsafe conditions.
[30] Given the significant soil movement resulting from the incident, Mr. Bhoola contacted the TRCA for assistance on the basis of advice from the Chief Administrative Officer of the Region of Peel.
[31] On or about September 11, 2017, a representative of the TRCA advised Mr. Bhoola that the TRCA could not locate any records of an approval being sought or provided in relation to the construction of the rear addition, but that they would review the issue further. Mr. Bhoola says that this was the first time that he learned of a possible issue with the permitting process for the construction of the rear addition. Mr. Bhoola subsequently followed up with the TRCA and the City on a number of occasions.
[32] On October 26, 2017, Mr. Bhoola submitted a claim for the damage based upon foundation and slope failure to the City.
[33] On November 6, 2017, Mr. Bhoola also commenced a proceeding against his home insurer with respect to the very issue about which he was making a claim to the City.
[34] On December 4, 2017, Mr. Bhoola told the City’s adjuster, Mr. James Giffen, that he believed that the City was liable because it allowed the house and the rear addition to be constructed in a dangerous manner.
[35] In my view, subject to s. 5(1)(a)(iv), the date when a reasonable person ought to have discovered the claim against the City was September 10, 2013, when the September 2013 Report obtained by Mr. Bhoola stated that the home was built on fill that was “unsuitable for supporting structures.” Given that a building permit would have had to have been obtained for this construction, a reasonable person, particularly with Mr. Bhoola’s sophistication in construction, knowledge of the permitting process and conservation requirements, would have constructive knowledge upon which a plausible inference of liability could have been drawn at that time. Mr. Bhoola ought to have discovered the material facts by exercising reasonable diligence upon receiving the September 10, 2013 Report.
[36] Even giving Mr. Bhoola a year to investigate the issues until September 10, 2014, subject to s. 5(1)(a)(iv), the proceeding is out of time because it was commenced in February 2020, which is considerably more than two years after this time.
Actual knowledge
[37] Mr. Bhoola had actual knowledge of his claim at the latest when he filed his claim with the City on October 26, 2017. He would not have done this unless he knew he had a claim.
[38] In the alternative, he had actual knowledge of his claim at the latest on December 4, 2017 when he told the adjuster, Mr. Giffen, that he thought the City was liable because it allowed the house to be constructed in a dangerous manner.
[39] Either way, he had actual knowledge at least two years prior to initiating this proceeding in February 2020.
[40] Thus, subject to s. 5(1)(a)(iv), the limitation period would begin to run on the earlier of December 4, 2017 (the actual knowledge date) or September 10, 2013, or at the latest September 10, 2014 (the objective knowledge dates). The earlier date is the objective knowledge date.
s. 5(1)(a)(iv)
[41] Even when the elements of ss. 5(1)(a)(i)-(iii) are satisfied, s. 5(1)(a)(iv) provides that a claim is not discovered until “having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it.”
[42] Mr. Bhoola seeks to delay the running of the limitation period on the basis that he submitted his claim to the City for compensation on October 26, 2017. He says that he could not have known a proceeding was an appropriate way to address his loss until the City denied his claim on February 27, 2018. At that time, Mr. Giffen advised Mr. Bhoola that he could not find a causal connection between the City’s issuance of a building permit for the rear addition and the damages to the house.
[43] Mr. Bhoola commenced his claim on February 21, 2020, which he says was within two years of the City’s denial of his claim.
[44] In Dass v. Kay, 2021 ONCA 565, at paras. 25-28, the Court of Appeal cited the following principles applicable in this case for interpreting s. 5(1)(a)(iv):
(a) The determination of whether a proceeding is an appropriate means to seek to remedy an injury, loss, or damage depends on the factual and statutory context of each case;
(b) One type of situation which may operate to delay the date on which a claimant would know that a proceeding would be an appropriate means to remedy a loss is where an alternative dispute resolution process offers an adequate remedy, and it has not been completed.
(c) The term “appropriate” means that it is legally appropriate to bring a proceeding, rather than practically advantageous.
[45] In 407 ETR Concession Company Limited v. Day, 2016 ONCA 709, 133 O.R. (3d) 762, the Court of Appeal indicated that the purpose of s. 5(1)(a)(iv) was to “enable courts to function more efficiently by deterring needless litigation”: at para. 48. At the same time, the court reaffirmed the decision in Markel Insurance Company of Canada v. ING Insurance Company of Canada, 2012 ONCA 218, 109 O.R. (3d) 652, at para. 34, where Sharpe J.A. expressed the view that it would not be appropriate to delay proceedings where a court would have to delve into when settlement discussions were fruitless. The purpose of limitations statutes remains certainty, finality and the concern that it is unfair to subject defendants to a lawsuit “beyond a reasonable period of time”: 407 ETR, at para. 48.
[46] The 407 ETR case was clarified in Beniuk v. Leamington (Municipality), 2020 ONCA 238, 150 O.R. (3d) 129, where the court held that 407 ETR was not authority for the proposition that a civil action is never an appropriate proceeding until after an alternative process has run its course: at para. 58. Again, the specific factual and statutory context is relevant.
[47] In this case, there are several reasons why Mr. Bhoola’s claim made on October 26, 2017 cannot toll the limitation period.
[48] As I have found above, the objective date when a reasonable person would have been put on notice of the claim against the City was September 10, 2013 or at the latest, September 10, 2014, giving the reasonable person some time to investigate. The limitation period would have expired well before Mr. Bhoola submitted his claim on October 26, 2017. A claims process cannot revive the commencement of a limitation period that has already expired.
[49] Further, even if it could, the Claim Form that Mr. Bhoola received and submitted has this wording across the top in bold print:
NOTE: Notices should be submitted to the City within (10) ten days of the incident. A (2) two year limitation period to submit a claim action will apply as per Section 4 of the Limitations Act, 2002 S.O. 2002, Chapter 24, Schedule B.
[50] Even though Mr. Bhoola said that he probably never looked at this wording, this qualifier across the top of the Claim Form is significant because the s. 5(1)(a)(iv) analysis is based upon a reasonable person with the abilities and in the circumstances of the person with the claim; it is not based upon the subjective views of the individual: Presidential MSH, at para. 18.
[51] A reasonable person with Mr. Bhoola’s sophistication would have read the Claim Form, particularly in light of all the previous problems Mr. Bhoola had with this property. A reasonable person having read the Claim Form would understand that from the City’s perspective, the submission of a claim did not toll the limitation period. Thus, a reasonable person would understand that as of the date of this Claim Form, a proceeding would be an appropriate means to seek to remedy the loss at that time, notwithstanding the submission of a claim.
[52] Although Mr. Bhoola gave vague evidence when cross-examined that people at the City told him that if he submitted a claim, they would “take care” of him, there is no reference to any such conversations in his affidavit.
[53] In his affidavit, he merely stated that he believed that the Claims process was the most appropriate way of proceeding for the following reasons:
Following the Incident and the resulting damage to my House, I took steps to attempt to obtain compensation for these damages from the City in what I believed to be the most appropriate manner, which was to file a claim with the City's Insurance and Risk Management Department (the "Insurance Department").
The City's website provides that the Insurance Department is responsible for administering claims made to the City for the recovery of damages. Once a claim is made, the Insurance Department starts an investigation and makes a final decision on whether the claimed damages are covered or not. If the damages are covered, the City will make the payment to the claimant, and the claim will be resolved without the involvement of the courts….
I understood that the damages I had suffered may have been covered under insurance policies maintained by the City, and that if I was able to obtain recovery by filing a claim with the Insurance Department, my loss would have been mitigated and litigation would be unnecessary. As such, I did not believe that commencing a litigation claim against the City was appropriate at that time.
[54] A vague reference to alleged conversations with City representatives when cross-examined does not constitute putting one’s best foot forward.
[55] Further, the statements that he attributes to City representatives lack context and particulars and could mean many things. These alleged statements do not mean that the City promised to toll the limitation period or that it would definitely or even likely approve his claim.
[56] The email from Mr. Giffen dated December 14, 2017 supports this conclusion. It states:
As indicated the amount of information provided during my meeting with Vaughan yesterday was significant, and more detailed and complex then I presumed, based on my meeting with you at your residence on December 4, 2017. I am in the process of reviewing this information over the next little while, so we can have follow up discussions for clarification with you.
That being said, this is not a simple matter, and accordingly there will not the possibility of any early resolution with the City, if at all, or that will occur without involvement with TRCA, your consultants & engineers utilized in work at the property over the years.
Sorry I do not have a solution you were looking / hoping for.
[57] Even if City employees told Mr. Bhoola that if he submitted a claim they would “take care” of him, this could simply mean that they would process his claim and nothing more. A reasonable person with Mr. Bhoola’s sophistication would understand this.
[58] I add that if these alleged conversations had been something meaningful that Mr. Bhoola relied upon, he would have made reference to such conversations in his affidavit and provided details.
[59] In the face of the clear wording on the Claim Form, something more than the vague references Mr. Bhoola made to conversations when cross-examined would be required for Mr. Bhoola to have put his best foot forward.
[60] The City also points out that nothing on the City’s website gave Mr. Bhoola any entitlement to any insurance proceeds which he says was his understanding. I agree that without providing the source of Mr. Bhoola’s understanding of any such entitlement, this evidence is vague and conclusory and also does not meet the test of putting Mr. Bhoola’s best foot forward.
[61] Finally, the City produced its investigation file and Mr. Bhoola has failed to point out anything in it that assists him.
[62] In all the circumstances, the submission of the Claim Form on October 26, 2017 did not change the fact that Mr. Bhoola ought to have known as of September 10, 2013, or at the latest September 10, 2014, that a proceeding was an appropriate way of addressing his loss.
[63] As such, this proceeding is out of time.
Issue 2: Is Mr. Bhoola’s claim outside the 15-year ultimate limitation period under the [Act](https://www.canlii.org/en/on/laws/stat/so-2002-c-24-sch-b/latest/so-2002-c-24-sch-b.html)?
[64] I have also concluded that this action is statute barred by the ultimate limitation period in s. 15 of the Act.
[65] Because of transition sections in the Act, the 15-year ultimate limitation period is deemed to begin on January 1, 2004.
[66] Thus, it expired on January 1, 2019, subject to the exceptions set out in s. 15(4)(c) which provide that the limitation period does not run during any time which the person against whom the claim is made:
(i) wilfully conceals from the person with the claim the fact that injury, loss or damage has occurred, that it was caused by or contributed to by an act or omission or that the act or omission was that of the person against whom the claim is made.[^1]
[67] Mr. Bhoola argues that the City had numerous opportunities to advise Mr. Bhoola of its failure to obtain TRCA approval for the rear addition, including: i) when the TRCA wrote to Mr. Bhoola in 1992 (copied to the City) regarding Mr. Bhoola’s activities in relation to the slope on the property; and ii) in 2013 when Mr. Bhoola applied for a building permit to underpin the foundation of the house including a portion of the rear addition.
[68] He complains that the City did not confirm that it had no record of the TRCA approval until September 24, 2018.
[69] Mr. Bhoola argues that the key factual determinations that must be made turn heavily on historic human interactions between Mr. Bhoola and representatives of the City and that the City’s failure to call any witnesses with personal knowledge of the interactions between the parties is a fatal flaw in the motion. However, in my view, it is Mr. Bhoola who has failed to put his best foot forward and establish that there is a genuine issue for trial in this regard.
[70] In considering whether the ultimate limitation period will be extended pursuant to s. 15(4)(c)(i), in Pioneer Corp. v. Godfrey, 2019 SCC 42, [2019] 3 S.C.R. 295, the Supreme Court indicated that fraudulent or willful concealment for the purpose of s. 15 is a form of equitable fraud.
[71] While this historically required a “special relationship” to exist between the parties, in Pioneer Corp., at para. 54, the Supreme Court restated the applicable test to focus on the conduct in question rather than the parties’ relationship:
[E]quitable fraud may also be established by pointing to other forms of unconscionable behaviour, such as (for example) “some abuse of a confidential position, some intentional imposition, or some deliberate concealment of facts”. In short, the inquiry is not into the relationship within which the conduct occurred, but into the unconscionability of the conduct itself. [Citations omitted; italics in original; underlining added.]
[72] Mr. Bhoola relies on the case Soetemans v. Design Concrete Systems Ltd., 2022 ONSC 5595, where Grace J. found that the plaintiffs had raised a genuine issue for trial based upon willful concealment, such that the ultimate limitation period might not apply.
[73] Soetemans is quite distinguishable from the facts of this case. It involved the collapse of beams in a hog finishing barn which resulted in the collapse of the structure, killing a number of hogs and rendering the building unusable. The plaintiff sued the contractor who built the structure as well as the engineers and the manufacturer of the beams.
[74] Grace J. reviewed Pioneer Corp. and concluded that “the issue is whether, given its behaviour, it would be unconscionable, for any reason, to allow the defendant to rely on the ultimate limitation period”: at para. 35.
[75] He then proceeded to review the authorities, which included the decision of Lord Denning in King v. Victor Parsons & Co., [1973] 1 All E.R. 206 (C.A.), which Grace J. indicated was “a good starting point.” Lord Denning wrote, as reproduced in Soetemans, at para. 36:
If a man knowingly commits a wrong… or a breach of contract (such as putting in bad foundations to a house), in such circumstances that it is unlikely to be found out for many a long day, he cannot rely on the Statute of Limitations as a bar to the claim… In order to show that he ‘concealed’ the right of action ‘by fraud’, it is not necessary to show that he took active steps to conceal his wrongdoing or breach of contract. It is sufficient that he knowingly committed it and did not tell the owner anything about it. He did the wrong or committed the breach secretly… To this word ‘knowingly’ there must be added ‘recklessly’… Like the man who turns a blind eye. He is aware that what he is doing may well be a wrong, or a breach of contract, but he takes the risk of it being so. He refrains from further inquiry least it should prove to be correct: and says nothing about it. The court will not allow him to get away with conduct of that kind. It may be that he has not dishonest motive: but that does not matter. He has kept the plaintiff out of the knowledge of his right of action: and that is enough.
[76] Mr. Bhoola relies heavily on the words that it is “sufficient that he knowingly committed it and did not tell the owner anything about it” or that the man “turns a blind eye.” I do not agree that the law is so broad as that. Indeed, Grace J. did not stop after he reviewed King.
[77] Grace J. then considered the cases where the doctrine of fraudulent concealment has been applied in Canada. These have been cases where there has been misrepresentation designed to allay the concerns of the claimant or deception: at para. 42.
[78] One such case is Halloran v. Sargeant (2002), 2002 45029 (ON CA), 163 O.A.C. 138 (C.A.), where the Court of Appeal concluded that an incorrect representation, despite being in a position to know, was sufficient to show that the defendant had acted unconscionably such that the doctrine of fraudulent concealment was triggered.
[79] Grace J. also referenced Johnson v. Studley, 2014 ONSC 1732, where Perell J. concluded that concealment meant hiding, secreting, cloaking, camouflaging, disguising or masking the conduct that was the subject of the complaint: Johnson, at para. 83.
[80] Grace J. also noted that an honest blunder has been found insufficient: Soetemans, at para. 41.
[81] The record before Grace J. in Soetemans was voluminous, containing approximately 2,500 pages as well as an expert report on behalf of the plaintiffs from a structural engineer.
[82] In that case, the plaintiffs’ expert said that the shortcomings that lead to the collapse would have been readily visible to the defendants at the time of construction. These shortcomings would have been within the business and expertise of the defendants.
[83] As well, there had been a site report done when the building was constructed that represented that subject to a few deficiencies, “the structural components of the barn, based on periodic site reviews, appears to be constructed in accordance with engineer drawings.” Thus, there was an explicit representation to the plaintiffs at the time regarding the issues that ultimately lead to the building collapse.
[84] Further, the issues with the building identified in the expert report were concealed within the structure and only revealed more than 15 years later after construction when there was a catastrophic failure.
[85] There were no previous issues with the building that would have put the plaintiff on notice of problems with the building prior to the expiration of the ultimate limitation period.
[86] As such, Grace J. had before him an actual incorrect representation at the time the building was constructed made to the plaintiffs, an expert report which said that the issues which lead to the collapse would have been obvious to the defendants, were concealed within the building, and a lack of historical reasons for the plaintiff to have had any concerns until the ultimate limitation period had already expired.
[87] These are not the facts before me.
[88] In a sense, the City had the institutional knowledge that the TRCA approval had not been obtained in 1981. But during the course of its dealings with Mr. Bhoola up until 2017, there is no evidence that the City or even the TRCA had ever adverted to this fact.
[89] As well, there is no persuasive evidence in the record that the City made any active representation to Mr. Bhoola or anyone that it had obtained TRCA approval at any time.
[90] When Mr. Bhoola was cross-examined, he asserted that the City lied to him and hid documents regarding its failure to obtain TRCA approval for the rear addition, but he provided no particulars or details as to what the alleged lie was, who he spoke to or when. Mr. Bhoola’s vague cross-examination evidence is insufficient to establish a genuine issue for trial. He has failed to put his best foot forward.
[91] As already noted, the City has produced its file and Mr. Bhoola has been unable to point to anything helpful.
[92] In my view, prior to 2017, the fact that that the City could have conducted an investigation and realized or adverted to the fact that it had not obtained TRCA approval when ongoing issues occurred is, at its highest, evidence of negligence. The ultimate limitation period applies to negligence claims so this cannot be evidence of fraudulent concealment.
[93] Prior to 2017, had Mr. Bhoola specifically asked the City about TRCA approval, or discussed it with the City at all and either been denied the information, been stonewalled, or given inaccurate information, this might have sufficed to establish a genuine issue as to whether there had been the requisite fraudulent concealment. However, there is no such evidence before me.
[94] The issue of whether TRCA approval had been obtained appears to only have become a live issue sometime after 2017 when Mr. Bhoola was first told by the TRCA that it did not have a record of approving the building permit. At that time, he did ask.
[95] While there is some delay between when the issue arose and when the City disclosed the absence of TRCA approval, there is no evidence as to when the City adverted to this absence. Thus, even after the issue arose in 2017, there is no evidence that the City delayed in any appreciable or material way in advising Mr. Bhoola once it had adverted to the fact. Based upon the record, it appears that both the City and the TRCA were attempting to figure out what had happened almost 40 years ago. Some delay would be reasonable.
[96] When they cross-examined representatives of the City, Mr. Bhoola’s counsel could have asked specific questions about the steps the City took to investigate the issue, and also precisely when the City adverted to the fact that it had not obtained TRCA approval. Having failed to obtain this information or even ask about it, it is not in a position to argue that the City delayed in providing this information, or even that it must have known all along, thus concealing it.
[97] There is also no evidence that the City would have, should have or must have considered the issue of TRCA approval or its own conduct in issuing the original building permit, as part of any of the previous interactions which Mr. Bhoola and the City had over the years prior to 2017. Mr. Bhoola could have obtained an expert report establishing that the City would have, should have or must have done this in the ordinary course.
[98] Further, there were significant reasons why Mr. Bhoola should have been alerted to the issues (including the absence of TRCA approval) before the ultimate limitation period expired.
[99] As set out above, both the City and Mr. Bhoola would have known by September 10, 2013 that the home was built on fill that was “unsuitable for supporting structures” because of the September 2013 Report filed by Mr. Bhoola in support of the building permit he requested to underpin the foundation. If this would have put the City on notice so as to establish that it recklessly turned a blind eye to its role in the difficulties Mr. Bhoola was experiencing with his home, or the absence of TRCA approval, the similar point could be made about Mr. Bhoola.
[100] This is another significant difference between this case and Soetemans.
[101] Finally, the absence of TRCA approval is not something that was a hidden defect that could only have been ascertained in 2017. This was something that could have been ascertained by asking the TRCA or the City. Indeed, that is what Mr. Bhoola ultimately did and how he learned of its absence. This is another significant difference between the Soetemans case and this one.
[102] Once the City brought this motion and relied upon the ultimate limitation period, it was Mr. Bhoola’s burden to establish a genuine issue. He failed to provide evidence that the City engaged in any unfair dealing, that it gave him inaccurate information, that it withheld information or even that it recklessly turned a blind eye to past wrongful conduct.
[103] It is no answer to a motion for summary judgment to make vague allegations when cross-examined or argue that better evidence will be available at trial. If Mr. Bhoola was of the view that there were other City witnesses from whom relevant evidence could be obtained, he could have set out particulars of their alleged conversations in an affidavit, subpoenaed such persons, or at least asked what their evidence was.
[104] As such, Mr. Bhoola has failed to establish that there is a genuine issue as to whether anything that the City did or failed to do was unconscionable, so as to trigger the doctrine of fraudulent concealment so as to possibly avoid the ultimate limitation period.
[105] The motion is granted.
[106] I encourage the parties to settle costs. If they cannot, they may make submissions as follows: the City within 7 days and Mr. Bhoola within 7 days thereafter. Submissions shall be no longer than 5 pages.
Papageorgiou J.
Released: January 4, 2024
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BHAVANBHAI BHOOLA
Plaintiff
– and –
THE CORPORATION OF THE CITY OF VAUGHAN
Defendant
REASONS FOR JUDGMENT
Papageorgiou J.
Released: January 4, 2024
[^1]: Mr. Bhoola did not argue the exception in ss. (ii).