



COURT OF APPEAL FOR ONTARIO

CITATION: York Region Standard Condominium Corporation No.
    1039 v.

Richmond Hill (Town), 2018 ONCA 511

DATE: 20180531

DOCKET: C64671

Feldman, MacPherson and Rouleau JJ.A.

BETWEEN

York Region Standard
    Condominium Corporation No. 1039

Appellant (Plaintiff)

and

The Corporation of
    the Town of Richmond Hill,
Rosehill Suites Inc.
, Tarion Warranty Corporation,
Dean Artenosi
, Joseph Battaglia
    Architect,
Arten
    Developments Inc.
,
The Arten Group
    Inc.
,
Principally Green
    Limited
,
    1041549 Ontario Limited carrying on business under the firm name and style
    Tristar Engineering,
Arten
    Developments carrying on business under the firm name and style The Manners of
    Roseview Grand, Arten Developments carrying on business under the firm name and
    style The Rosehill
,
    Socia Engineering Limited, John Doe Bricklayers, Jane Doe, Adam Doe, Andrew
    Doe, Anthony Doe, Alex Doe, Adrian Doe, Anna Doe, Alicia Doe, Alice Doe, Amy
    Doe and Amanda Doe

Respondents
(Defendants)

Patrick Di Monte, for the
    appellant

Kevin Sherkin and Ryan
    Wozniak, for the respondents

Heard: May 28, 2018

On appeal from the order of Justice S.J. Woodley of the Superior
    Court of Justice, dated September 1, 2017, with reasons reported at 2017 ONSC
    6868.

REASONS FOR DECISION

[1]

At the conclusion of the appeal, the court allowed the appeal with
    reasons to follow. These are those reasons.

[2]

The appeal is from an order dismissing the appellants claim against the
    respondents for delay. The claim involved allegations of negligence in the
    construction of a condominium built in 2004, resulting in defects that were discovered
    on August 5, 2012. A number of defendants were named in the Statement of Claim:
    several individuals and corporations, as well as the Corporation of the Town of
    Richmond Hill (Richmond Hill) and Tarion Warranty Corporation (Tarion).

[3]

The claim was issued on August 1, 2014, but was not served on the defendants
    within the six months provided in the
Rules of Civil Procedure
. Some
    of the defendants  the respondents in this appeal  brought a motion for
    dismissal of the claim against them for delay.

[4]

The motion was heard by a master. The appellant explained that it had encountered
    problems locating and serving the respondents due to inaccurate information filed
    in the respondents corporation profile reports. The master determined,
    however, that even if this were true, there was no evidence that the appellant
    had followed up or pursued any investigation once it became aware the respondents
    had not been located. Nor had the appellant brought a motion to extend the time
    for service or to validate service effected to the registered addresses.

[5]

The respondents learned of the claim in June 2015, when they were served
    with the cross-claims of Richmond Hill and Tarion. The respondents invited the
    appellant to bring a motion to extend the time for service and indicated that
    they would oppose such a motion. The appellant did not bring a motion to extend
    time or validate service and, on February 13, 2017, the respondents brought
    their motion for dismissal of the claim for delay.

[6]

In support of the motion, the respondents filed an affidavit to the
    effect that the documents related to the condominium project had been purged in
    the normal course of business and, as far as the principal of the respondent
    corporations was aware, this documentation was no longer available.

[7]

In his reasons, the master correctly stated that the onus was on the
    appellant to explain the delay and establish that the respondents had suffered
    no prejudice. The appellant bore the onus because the limitation period had
    expired during the period of delay. He also observed that prejudice was the key
    consideration in this case. We agree. The master noted that while the respondents
    no longer had their documents, the affidavit did not specify when the documents
    had been destroyed. He went on to infer from the various materials filed that
    the appellants documents were available and that the documents of the
    institutional defendants had also been preserved. We take the masters
    reference to institutional defendants to be a reference to Tarion and
    Richmond Hill. The master concluded that the appellant had met its onus, although
    barely so, and dismissed the motion.

[8]

On appeal to the Superior Court, the judge allowed the appeal and
    dismissed the claim as against the respondents. She found that the master had
    committed palpable and overriding errors of fact and errors of law.

[9]

A central error of fact identified by the appeal judge was the masters finding
    that the documents of the individual Defendants have been preserved. As she
    correctly noted, this finding contradicted the respondents evidence that the
    records had been purged. Unfortunately, however, the typed version of the
    masters handwritten reasons presented to and relied upon by the appeal judge
    contained an error. As we note above, the masters reasons indicated that the
    documents of the institutional defendants were preserved. The typed version
    appears to have incorrectly transcribed institutional as individual. There
    was therefore no inconsistency in the masters finding. This unfortunate error
    in transcription played a significant role in the appeal judges decision to
    allow the appeal.

[10]

As
    for the errors of law identified by the appeal judge, she explained that the
    master failed to apply the proper legal principles and, in particular, that
    there is a strong presumption of prejudice given the expiration of the
    limitation period and the passage of time since the events occurred and that
    the Appellants provided evidence of specific prejudice (purging of documents
    and unavailability of witnesses) which evidence was not considered. In our
    view these criticisms of the masters decision are in error.

[11]

As
    the appeal judge properly noted at para. 21 of her reasons, the delay that is
    to be considered in the circumstances of this case is measured by reference to
    the length of time from the commencement of the proceeding to the motion to
    dismiss. It is in relation to this period of delay that the appellant bore the
    onus of rebutting prejudice. However, when the appeal judge came to apply this principle,
    she implied that the appellant was required to rebut the presumption of
    prejudice for the entire 13 year period since the construction of the
    condominium. Further, the master was well aware of the evidence that the
    respondents had purged their documents. However, as indicated by the master,
    the respondents did not indicate when their documents were destroyed. It was
    open to the master to infer that they had in fact been destroyed well before
    the claim was issued, such that the delay in service of the claim engendered
    little or no prejudice.

[12]

The
    masters decision was entitled to deference, as were the inferences that the
    master drew from the record as a whole. In our view, the appeal ought to be
    allowed and the masters decision restored. We agree with the appellant that
    there should be no costs in this court or in the courts below.

K. Feldman J.A.

J.C. MacPherson J.A.

Paul Rouleau J.A.


