



COURT OF APPEAL FOR ONTARIO

CITATION: Gottlieb v. Malone Given Parsons Ltd., 2017 ONCA
    757

DATE: 20170929

DOCKET: C63147

MacFarland, Watt and Benotto JJ.A.

BETWEEN

Unicorr
    Limited, as Trustee for Norman James Gottlieb and Container Corporation of
    Canada

Plaintiffs

(Appellants)

and

Malone
    Given Parsons Ltd.

Defendants

(Respondent)

Alan B. Dryer, for the appellants

David Winer, for the respondent

Heard and released orally: September 25, 2017

On appeal from the judgment of Justice Paul M. Perell of
    the Superior Court of Justice, dated November 28, 2016, with reasons reported
    at 2016 ONSC 7350.

REASONS FOR DECISION

[1]

The motion judges key findings are set out in paras. 76 and 77 of his
    reasons as follows:

[76]     In 2011, Mr. Gottlieb knew that the payment of
    development charges, which had come as such a surprise, could have been avoided
    had a timely application for a building permit been made and that the
    responsibility for applying for a building permit (which is actually a disputed
    point) was on the Defendants. In 2011, Mr. Gottlieb knew the identities of the
    wrongdoers and he knew the nature of their culpable acts or omissions, which
    was the failure to obtain a timely building permit. He knew enough material
    facts to infer that the Defendants had caused him harm.

[77]       I will grant that, subjectively, Mr. Gottlieb did
    not know the legal significance of what he knew, but objectively, a reasonable
    person acting diligently ought to have known that there was a claim against the
    persons charged with the responsibility of obtaining a timely building permit.
    A reasonable person, particularly one who has legal advice available to him for
    his construction project, would not have asked Mr. Kirk for legal advice about
    the operation of municipal by-laws.

[2]

These findings are more than generous to the appellant.

[3]

It is arguable on this record that the appellant ought to have been
    aware of his claim and his right to bring an action much earlier in time. The
    Town of Richmond Hill (the Town) complied with all of its notice obligations
    prior to the passing of the By-Law, including public meetings and publication
    of notice. To suggest that anyone engaged in development in the Town and their
    experts would have been unaware that the Town was about to pass a By-Law under
    the
Development Charges Act, 1997
, S.O. 1997, c. 27, strains
    credulity.

[4]

Further, when the Town returned his site plan to the appellant in
    November, 2009, it noted then that development charges would be owing on the
    project. Yet, nothing was done until two years later when the building permit
    was applied for, and he was required to pay the charges. And he knew from
    Eileen Byrnes email of July 26, 2011, that had he received his building permit
    prior to the passing of the By-Law, the development charge would not have been
    payable. Clearly, then, if not before, if he did not know, he ought to have
    known that he had a claim against those who were responsible for obtaining a
    building permit on his theory of his case.

[5]

We see no error of the decision of the motion judge. The appeal is
    dismissed. Costs are to the respondent and fixed in the sum of $15,010.02,
    inclusive of disbursements and HST.

J. MacFarland J.A.

David Watt J.A.

M.L. Benotto J.A.


