





CITATION:
Jagosky
v. Huntsville (Town), 2011
          ONCA 324



DATE:  20110426



DOCKET: C52678



COURT OF APPEAL FOR ONTARIO



Winkler C.J.O., Lang and Karakatsanis JJ.A.



BETWEEN



Robert Orland
Jagosky
and
          Arlene
Jagosky



Plaintiffs (Appellants)



and



Corporation of the Town of Huntsville



Defendant (Respondent)



Robert A. Calder, for the plaintiffs/appellants



Andrew J. Heal and Todd Robinson, for the respondent
          Corporation of the Town of Huntsville



Heard and released orally: April 18, 2011



On appeal from the judgment of Justice Elizabeth Quinlan, of
          the Superior Court of Justice, dated August 20, 2010.



ENDORSEMENT



[1]

We do not accept the appellants
    submission that the motion judges factual finding as to the date of
    discoverability was unreasonable. The motion judge found that the appellants
    were aware or ought to have been aware of the proposed new basis for a cause of
    action in January 2004 based on the evidence including the Soil-Eng Report and
    the appellant Robert
Jagoskys
letter to the
    respondent dated February 1, 2004.

[2]

The Soil-Eng Report clearly identified
    that the revealed soils are not suitable for supporting foundations and do not
    provide frost protection for the existing foundation.  In the subsequent letter, Mr.
Jagosky
noted that the Report represented valuable
    background information as to the cause of damage inflicted upon the building
    by the town.  He concluded with the
    reference to the towns responsibility for the inspection of footings and for
    building permits.

[3]

In our view, the cross-examination of Robert
Jagosky
does not undermine the evidence of the Soil-Eng
    Report or of his letter. There was ample evidence to support the motion judges
    factual finding. This ground of appeal fails.

[4]

The appellants further submit that there
    was no prejudice to the town. We disagree. We agree with the motion judge that
    the demolition of the premises actually prejudiced the town. There is no
    evidence in the record that the foundations are still available for testing as
    submitted by the appellants. Further, we are not prepared to accede to the
    submission that the only investigation required in order to prepare a defence
    to this claim would be based upon the paper records. We reject this ground of
    appeal.

[5]

Finally, we reject the submission that
    this was not a new claim. The amendments sought were clearly based upon
    different events at a different point in time. We agree with the motion judge
    that the amendment sought constitutes a fundamentally different claim.

[6]

In conclusion, we agree with the result
    and with the analysis of the motion judge.

[7]

The appeal is dismissed.

Winkler
    C.J.O.

S.E.
    Lang J.A.

Karakatsanis
    J.A.


