



COURT OF APPEAL FOR ONTARIO

CITATION: 1554080 Ontario Inc. v. Heffner, 2019 ONCA 211

DATE: 20190315

DOCKET: C65751

Simmons, Tulloch and Brown JJ.A.

BETWEEN

1554080 Ontario Inc.

Appellant (Plaintiff)

and

Willy Heffner, Heffner Motors Limited, Heffner
    Auto Sales and Leasing Inc., and Heffner Investments Limited

Respondents (Defendants)

F. Scott Turton, for the appellant

James H. Bennett, for the respondents

Heard and released orally: March 14, 2019

On appeal from the order of Justice Silja S. Seppi of the
    Superior Court of Justice, dated July 4, 2018.

REASONS FOR DECISION

[1]

The appellant, 1554080 Ontario Inc., appeals the dismissal of its action
    under Rule 21 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194.

[2]

The appellant owned a piece of commercial property (the Property). In
    its statement of claim, the appellant pleads that in 2012 it entered into
    discussions with the respondent, Willy Heffner, about renovating the building
    on the Property in order to lease it out. The appellant alleges that in 2013
    the respondents paid some of the Propertys expenses and co-signed an agreement
    with a firm to conduct a Phase II Environmental Site Assessment of the
    Property. According to the claim, the respondents paid for that work, which
    revealed some lead contamination around the test bore holes. The appellant then
    sold the Property in 2014, with some of the respondents receiving $250,000 from
    the sale proceeds.

[3]

In August 2017, the appellant commenced this action in which it seeks
    declaratory relief that: (i) the respondents are persons having control of a
    pollutant on the Property, within the meaning of s. 99 of the
Environmental
    Protection Act
, R.S.O. 1990, c. E.19, between July 22, 2013 and February
    28, 2014; and (ii) the respondents are liable to make contribution or indemnity
    in respect of any liability that might be imposed in the future upon the
    appellant by reason of the presence of any excess quantities of lead on the
    Property.

[4]

The respondents filed a statement of defence and then moved under
    various branches of Rule 21 for an order dismissing the action. Specifically,
    the respondents sought to dismiss the action on the basis that the action: (i)
    disclosed no reasonable cause of action (r. 21.01(1)(b)); (ii) was frivolous
    and vexatious (r. 21.01(3)(d)); or (iii) was statute-barred under the
Limitations
    Act, 2002
, S.O. 2002, c. 24, Sch. B.

[5]

The motion judge dismissed the action on the first two grounds. She did
    not consider or deal with the limitations period argument.

[6]

The appellant appeals. It advances two main grounds of appeal.

[7]

First, the appellant argues that the motion judge erred by failing to
    consider and give effect to this courts decision in
Brozmanova v. Tarshis
,
    2018 ONCA 523, 81 C.C.L.I. (5th) 1, which discussed the proper use of Rule 21.
    We are not persuaded by this submission. Although the motion judge did not
    refer to the
Brozmanova
decision, her reasons demonstrate that she was
    alive to
Brozmanovas
holding that a motion under r. 21.01(1) was not an
    appropriate means by which to seek the adjudication of a limitations defence,
    which usually requires making findings of fact. The motion judge specifically
    held that it was not necessary to consider the respondents argument based on
    the
Limitations Act
and she made no findings in respect of it. Instead,
    the motion judge concluded that the respondents argument that the claim
    disclosed no reasonable cause of action was dispositive of the motion: at para.
    27.

[8]

As its second ground of appeal, the appellant submits that the motion
    judge erred in holding that the statement of claim does not disclose the
    material facts necessary to support its claim under s. 99 of the
EPA
. We
    disagree.

[9]

Paragraph 12 of the statement of claim contains the bald pleading that
    the respondents are all persons having control of a pollutant within the
    meaning of section 99 of the
EPA
during the period 22 July [2013] to 28
    February 2014. The motion judge held, at para. 20, that the statement of claim
    contains a radical defect because it does not allege any facts to support an
    ultimate finding that the respondents were owners or persons having control of
    the lead pollutant immediately before the first discharge of the pollutant,
    as required by s. 91(1) of the
EPA
. The motion judge correctly read the
    statement of claim; it contained no such pleading. Indeed, the statement of
    claim does not even plead when the first discharge of lead took place.
    Accordingly, we see no error by the motion judge.

[10]

That
    is sufficient to dispose of the appeal. Consequently, we see no need to address
    the appellants further submission that the motion judge erred in holding that
    its claim for a declaration of contribution and indemnity from the respondents
    in the absence of any claim against the appellant by a third party rendered the
    action premature.

[11]

In
    oral argument, the appellant submitted that in the event this court dismissed
    the appeal, leave to amend the statement of claim be granted. No formal request
    for leave to amend was made in the Notice of Appeal; no draft amended statement
    of claim was filed. Leave is not granted.

[12]

The
    appeal is dismissed. The respondents are entitled to their costs of the appeal
    fixed on a partial indemnity scale in the amount of $6,500, inclusive of
    disbursements and applicable taxes.

Janet Simmons J.A.

M. Tulloch J.A.

David Brown J.A.


