



COURT OF APPEAL FOR ONTARIO

CITATION: York Trafalgar Corporation v. Symphony Golf Inc.,
    2014

ONCA 619

DATE: 20140902

DOCKET: C58327

Doherty, Laskin and Epstein JJ.A.

BETWEEN

York Trafalgar Corporation, Pipers Heath Golf
    Club Ltd. and Comarin Corp.

Plaintiffs (Appellants)

and

Symphony Golf Inc. and
Philips
    Engineering Ltd.


Defendants (
Respondent
)

Paul H. Starkman, for the appellants

James A. LeBer, for the respondent Philips Engineering
    Ltd.

Heard and released orally: August 15, 2014

On appeal from the order of Justice Edward M. Morgan of
    the Superior Court of Justice, dated January 14, 2014.

ENDORSEMENT

[1]

This is an appeal from a decision of Morgan J. in which he granted summary
    judgment dismissing the action against one of the defendants, the respondent,
    Philips Engineering Ltd.

[2]

The background facts established a complicated relationship that was
    created when two families, the Gruehls and the Comarins, put two parcels of
    land together to develop a golf course. The Gruehls put in 200 acres, the
    Comarins, 100. For the purpose of developing the golf course, a limited
    partnership, Pipers Heath Golf Links Limited Partnership, (Pipers LP) was
    formed in which the appellant, Pipers Heath Golf Club Ltd., is the general partner,
    (Pipers GP).

[3]

The limited partners of Pipers LP are Lina Comarin and Flavio Comarin
    and the two appellants Comarin and York Trafalgar Corporation. The Gruehl
    family controls York Trafalgar.

[4]

Philips performed planning and re-zoning services in connection with the
    golf course. The appellants allege that Philips negligently designed the golf
    course and breached its contract with Pipers GP by failing to acquire
    necessary permits. As a result of this substandard performance, the appellants
    had to include in the golf course ten acres of the Comarin 100 acres that had
    been reserved for the Comarins future use.

[5]

Philips brought a motion for summary judgment seeking a dismissal of the
    action against it on the basis that even if Philips were found negligent and/or
    in breach of contract, any resultant decrease in the value of the Comarin 100
    acres caused no loss to the appellants.

[6]

By the time the motion for summary judgment was heard, the appellants
    claim for loss allegedly caused by Philips was limited to the value of the ten
    acres - being five acres of land that Comarin lost for immediate use outside of
    the golf course operation and five acres of land Comarin lost to regulated fish
    habitat previously available for future development.

[7]

The motion judge held that it was obvious that a claim limited to
    recovering the diminished value of land can only be claimed by the owner of
    that land and went on to find that the 100 within which the ten acres was
    situate,  were owned not by Pipers LP but by Comarin. However, Comarin had no
    claim against Philips as it purchased the land from the previous owners, Lina
    and Flavio Comarin, after the alleged diminution of value took place.

[8]

Two findings of fact were critical to this conclusion.

[9]

First the motion judge found that the golf course lands are not owned by
    Pipers LP. York Trafalgar owns the 200 acres formerly owned by the Gruehls,
    Comarin owns the 100 acres formerly owned by Lina and Flavio Comarin.

[10]

All
    of the evidence supports this finding. The lands were registered in Comarins name
    on September 1, 2006, when Comarin purchased it from Lina and Flavio. On the
    appellants evidence, once the limited partnership was formed, sometime after
    October 2, 2006, it entered into a lease as tenant with York Trafalgar and
    Comarin, as landlords.

[11]

Second,
    the motion judge found that Comarin acquired the 100 acres for fair market
    value after any alleged diminution of value had taken place.

[12]

On
    this point the evidence was also clear. By the time Lina and Flavio Comarin sold
    their 100 acres to Comarin on August 30, 2006, the problems with conservation
    and fish habitat had been known for many months. The necessary re-design of the
    golf course that involved the ten acres had already been discussed, submitted
    and approved.

[13]

It
    follows that Comarin purchased its 100 acres from Lina and Flavio for fair
    market value after the alleged diminution in value took place. Any loss
    suffered due to Philips services was incurred by Lina and Flavio.  Pipers LP does
    not own the lands said to have suffered a diminution of value. Comarin bought
    the lands in issue for its already diminished value. The contractual
    relationship between Philips and Pipers TP does not change this.

[14]

The
    motion judge correctly concluded that the appellants have no claim against
    Philips. The appeal is therefore dismissed.

[15]

Costs
    to Phillips on a partial indemnity basis in the amount of $9,000, inclusive of
    relevant taxes and disbursements.

Doherty
    J.A.

John
    Laskin J.A.

Gloria
    Epstein J.A.


