



COURT OF APPEAL FOR ONTARIO

CITATION:
Metropolitan Toronto Condominium
    Corporation No. 1067 v. L. Chung Development Co.
    Ltd., 2012 ONCA 845

DATE: 20121203

DOCKET: C55307

Laskin, MacPherson and Gillese JJ.A.

BETWEEN

Metropolitan Toronto Condominium Corporation No.
    1067

Plaintiff (Appellant)

and

L. Chung Development Co. Ltd., Yiu W. Chung
    a.k.a. Andrew Y.W. Chung, Yiu C. Chung a.k.a. Tony Y.C. Chung, Tony Yiu-Cheung
    Chung, Yiu H. Chung a.k.a. Stephen Y.H. Chung, George Wood, Dolores Lawrence,
    Torchin Group Inc., and Cushman & Wakefield Ltd.

Defendants (Respondents)

Carol Dirks and Bruce Bahst, for the appellant

Milton A. Davis, for the respondents L. Chung
    Development Co. Ltd., Yiu W. Chung a.k.a. Andrew Y.W. Chung, Yiu C. Chung
    a.k.a. Tony Y.C. Chung, Tony Yiu-Cheung Chung, Yiu H. Chung a.k.a. Stephen Y.H.
    Chung, George Wood, Dolores Lawrence and Torchin Group Inc.

Elizabeth Ackman and Eric Snerka, for the respondent
    Cushman & Wakefield Ltd.

Heard: November 27, 2012

On appeal from the order of Justice James M.

Spence of the Superior Court of Justice, dated March
    8, 2012.

ENDORSEMENT

[1]

The appellant Metropolitan Toronto Condominium Corporation No. 1067
    (MTCC) appeals from the order of Spence J. dated March 8, 2012 granting
    summary judgment to the respondents and dismissing the appellants action. In
    basic terms, MTCCs action alleged that by tortious conduct the respondents
    caused MTCC to pay a price about $1 million over market value for surface
    rights to the condominium corporation parking garage. In making this
    allegation, the appellant challenges the Royal LePage appraisal report given to
    the bank to secure first mortgage financing for the surface rights sale in
    2005.

[2]

The motion judge held that summary judgment should be granted and the
    appellants action dismissed on a number of bases, including (1) the action was
    brought outside the relevant two-year limitation period, irrespective of
    whether the trigger date for the appellants claim was September 29, 2005, or
    August 1, 2008; and (2) on the merits, the appellants claim failed because of
    a combination of procedural defects (e.g. reliance on inadmissible expert
    evidence), his acceptance of the Royal LePage appraisal, the absence of other
    evidence showing the surface rights sale price was excessive, and the
    application of relevant legal principles (e.g. the doctrine of merger, the
    interpretation of various sections of the
Condominium Act
, and
    oppression).

[3]

The appellant appeals virtually all aspects of the motion judges
    decision. With leave, it argued a new ground of appeal, namely, that the
    relevant limitation period is 10 years, not two years, by virtue of the
Real
    Property Limitations Act
.

[4]

In our view, the relevant limitation period is two years, and the appeal
    can be resolved on this issue alone. Although we have reservations about the
    motion judges analysis in support of his principal conclusion that the
    limitation period started to run in 2005 and expired in 2007, we do agree with
    his secondary conclusion on this issue, namely, that even if the limitation
    period began on [August 1, 2008] and not before, the action was statute-barred
    because MTCC did not commence its action until November 8, 2010.

[5]

We agree with the respondents that MTCC had all the information relevant
    to its claims in this lawsuit when Mr. Kuang purchased from the respondents
    their 57 percent interest in the condominium on August 1, 2008. Mr. Kuang, the
    purchaser, drafted the Agreement of Purchase and Sale, which specifically
    listed as a Due Diligence Document, at paragraph 18, Document disclosing the
    transaction details of selling all parking units from the Vendor to MTCC 1067.
    Mr. Kuang was represented by legal counsel and a real estate agent in the
    transaction. He invoked paragraph 18 and received additional information
    responsive to his request from the respondent. Importantly, in his affidavit in
    response to the summary judgment motion, Mr. Kuang stated that he was aware
    during the due diligence period before the August 1, 2008 closing that HSBC had
    conducted an appraisal relating to the 2005 transaction. Nevertheless, against
    the backdrop of all this information and conduct, Mr. Kuang explicitly waived
    the due diligence clause and closed the transaction.

[6]

We accept that the appellant and Mr. Kuang are different legal entities.
    However, when Mr. Kuang purchased the respondents interest, he took over
    control of the board of the appellant.  The Board, and therefore the appellant,
    must be fixed with the knowledge Mr. Kuang gained as a result of his purchase. There
    is nothing in the record to suggest that he and the other unit owners of the
    corporate appellant should now be permitted to resile from the consequences of
    the decisions Mr. Kuang made leading up to and on August 1, 2008.

[7]

Finally, we do not think that the
Real Property Limitations Act
applies to the case as framed by the appellant. In its Statement of Claim, the
    appellant frames its action as one for damages flowing from the respondents
    negligence, breach of contract, conflict of interest, and breach of duty of
    care, fiduciary duty and statutory duty. None of these relates to the
    categories of actions encompassed by the
Real Property Limitations Act
.
    Importantly, in its comprehensive submissions before the motion judge the
    appellant did not raise or argue this point.

[8]

The appeal is dismissed. If the parties cannot agree on costs, the
    respondents may make brief submissions (not more than three pages) within 14
    days of the release of these reasons. The appellant may reply with similar
    brevity within the following seven days.

John Laskin J.A.

J.C. MacPherson J.A.

E.E. Gillese
    J.A.


