



COURT OF APPEAL FOR ONTARIO

CITATION: Sirois v. Weston, 2017 ONCA 1002

DATE: 20171220

DOCKET: C63793

Feldman, Fairburn and Nordheimer JJ.A.

BETWEEN

Louis Sirois and Chandra Martens

Plaintiffs (Appellants)

and

Pamela Adriana Weston in her capacity as power of
    attorney for property of Randalyn Lorraine Weston, Brian Wilson and
Tanya Lemcke

Defendants (Respondent)

Christopher S. Spiteri & John MacDonell, for the
    appellants

Aaron Postelnik, for the respondent, Tanya Lemcke

Heard and released orally:  December 14, 2017

On appeal from the judgment of Justice Giovanna Toscano
    Roccamo of the Superior Court of Justice sitting without a jury, dated April
    27, 2017.

REASONS FOR DECISION

[1]

The plaintiffs appeal from the summary judgment that dismissed the
    plaintiffs claim against the defendant, Tanya Lemcke, on the basis that the
    two-year limitation period had expired prior to the claim being instituted
    against the respondent.
[1]

[2]

The appellants purchased a rural property as a retirement place in late
    2009.  In early 2010, the appellants became aware that a company had an option
    to purchase an adjoining property upon which the company intended to build a
    solar farm.  In fact, the option had been registered on the title to the
    adjoining property one day after the appellants had signed their agreement of
    purchase and sale.  The appellants say that they would not have purchased the
    property had they known about the option that the solar farm company had to
    purchase the adjoining lands.

[3]

As a result of this information, the appellants first attempted, along
    with other landowners in the area, to prevent the construction of the solar
    farm.  They failed in those efforts.  Construction of the solar farm began in
    February 2013.

[4]

The appellants asked the respondent, late in 2012, to provide them with
    an opinion regarding the value of the property at that time.  The respondent
    provided that opinion, in December 2012, which stated that the value of the
    property had declined significantly given the impending construction of the
    solar farm.

[5]

The appellants commenced this action on November 30, 2011. The
    appellants did not include the respondent as a defendant.  It was not until
    October 2013 that the appellants sought leave to amend their statement of claim
    to add the respondent as a defendant.  Leave was granted on November 1, 2013
    and the statement of claim was amended to add the respondent as a defendant on
    November 30, 2013.

[6]

In response to the motion for summary judgment, the appellants argued
    that the limitation period did not begin to run until February 2013 when the
    construction of the solar farm actually commenced.  Up until that point, the
    appellants say that they did not know that they had suffered actual damage
    arising from the potential solar farm.

[7]

The motion judge rejected the appellants position.  She concluded, at
    para. 44 of her reasons:

[8]

I find that the Plaintiffs discovered their cause of action against Ms.
    Lemcke by February 2010. Although the extent of the damages was still unknown,
    they knew at that time that they had suffered damage. The fact that the
    Plaintiffs chose to wait does not take away from the fact that they knew or
    ought to have known, at that time, that they had a cause of action in negligence
    against Ms. Lemcke.

[9]

We agree with the conclusion reached by the motion judge.  By at least
    February 2010, the appellants knew about the possible construction of the solar
    farm on the property adjacent to theirs.  They expressly say that they would
    not have purchased their property if they had had this knowledge before the
    closing.  They also knew at that time that the value of their property would be
    negatively impacted.  Indeed, in an email dated July 19, 2010 to their real
    estate lawyer, the appellants said that they needed to sue the people who had
    sold them the property and others, because they had suffered a huge financial
    hardship.

[10]

In our view, the situation in this case is indistinguishable in result
    from the situation in
Hamilton (City) v. Metcalfe & Mansfield Capital
    Corporation
, 2012 ONCA 156, 347 D.L.R. (4th) 657 (Ont. C.A.).  In that
    case, LaForme J.A. said, in part, at para. 32:

[11]

... the plaintiff suffers damage sufficient to complete the cause of
    action when he enters into the transaction, not when the loss is monetized into
    a specific amount.

[12]

We would add that the contention that the appellants did not know they
    had a cause of action until damage occurred when the construction of the solar
    farm commenced in February 2013, is contradicted by the fact that they
    commenced this action originally in November 2011 against both the vendor and
    the appellants real estate lawyer, based on the same factual foundation and
    complaint that is now sought to be alleged against the respondent.

[13]

Finally, the appellants reliance on this courts decision in
Butera
    v. Chown, Cairns LLP
, 2017 ONCA 783 is misplaced.  The expiration of the
    limitation period as it related to this sole defendant is precisely the type of
    discrete issue that could be separated from the other claims in the action and
    dealt with expeditiously and in a cost effective manner (para. 34).

[14]

The appeal is dismissed with costs awarded to the respondent in the
    agreed-upon amount of $7,300, inclusive of disbursements and HST.

K.
    Feldman J.A.

Fairburn J.A.

I.V.B. Nordheimer J.A.





[1]

Sirois v. Weston,
2017 ONSC 2639.


