



COURT OF APPEAL FOR ONTARIO

CITATION: Hunter-Rutland Inc. v. Huntsville (Town), 2015 ONCA
    353

DATE: 20150519

DOCKET: C59493

Strathy C.J.O., LaForme and Tulloch JJ.A.

BETWEEN

Hunter-Rutland Inc.

Respondent (Plaintiff)

and

The Corporation of the Town of Huntsville

Appellant (Defendant)

William A. Chalmers, for the appellant

Daniel J. Wyjad, for the respondent

Heard: May 12, 2015

On appeal from the order of Justice Thomas M. Wood of the
    Superior Court of Justice, dated October 9, 2014
,
with reasons
    reported at 2014 ONSC 5902 (CanLII).

ENDORSEMENT

[1]

Hunter-Rutland Inc. (HRI) was a commercial tenant of the Town of
    Huntsville (the Town). HRI defaulted on rent, was evicted from the premises,
    and was given 30 days to remove its possessions. HRI removed all its
    possessions except for a router. The Town later sold the router and applied the
    funds to a charity. HRI commenced an action for conversion and negligence in
    respect of the Towns disposal of the router.

[2]

The Town brought a motion for summary judgment arguing that the
    limitation period expired. HRI did not serve any notice of motion and did not
    seek any relief other than the dismissal of the Towns motion.

[3]

The motion judge granted summary judgment in favour of HRI and directed
    that damages be assessed at a later date under rule 20.05. The Town appeals the
    order.

[4]

We would dismiss the appeal for the following reasons.

[5]

First, there was nothing wrong with the motion judge granting judgment
    in favour of HRI in all the circumstances of this case. Had HRI brought its own
    motion for summary judgment, it is difficult to see how the argument and
    evidence would have been different given the scope of the issue involved. The
    jurisprudence supports the conclusion that a motion judge, on summary judgment
    motions, has the power to grant judgment for or against the moving party: see
Whalen
    v. Hillier
(2001), 53 O.R. (3d) 550 (C.A.).

[6]

Thus, in the absence of any prejudice, and given the monetary claims in
    issue, this was an entirely fair process that resulted in a just adjudication
    of the disputes between the parties.

[7]

Second, we agree with the motion judge; the claim was discovered when
    the respondent learned of the sale. That is to say, the alleged wrongful
    conduct was related to the Towns handling of the sale of the router, not its
    seizure. The motion judge was, therefore, correct in holding that the
    limitation period had not expired.

[8]

Third, even if the router became the property of the Town by virtue of
    clause 6.2 of the lease, the Town was nevertheless obligated by clause 10.10 to
    apply the proceeds of the sale to rent arrears. Moreover, the Town was
    obligated to sell the router at a reasonable price pursuant to s. 53 of the
Commercial
    Tenancies Act
, R.S.O. 1990, c L.7.

[9]

For the sake of clarity, and as acknowledged by the respondent, the Town
    may rely on all the defences and arguments otherwise available to a party on
    the assessment of damages. Specifically, they are not constrained from doing so
    by paras. 48 and 52(4) of the motion judges reasons.

[10]

Finally,
    HRI is awarded its costs of the appeal in the agreed upon amount of $13,500,
    inclusive of disbursements and HST.

G.R. Strathy C.J.O.

H.S.
    LaForme J.A.

"M.
    Tulloch J.A."


