



COURT OF APPEAL FOR ONTARIO

CITATION: Wabafiyebazu v. Farley Smith & Murray Surveyors Ltd., 2015 ONCA 809

DATE: 20151124

DOCKET: C60811

Cronk, Epstein and Huscroft JJ.A.

BETWEEN

Germano Ngoma Wabafiyebazu

Plaintiff (Appellant)

and

Farley, Smith and Murray
    Surveying Ltd.

Defendant (Respondent)

Germano Ngoma
    Wabafiyebazu, appearing in person

Christopher L. Hluchan, for the respondent

Heard: November 13, 2015

On appeal from the judgment of Justice Rick T. Leroy of
    the Superior Court of Justice, dated October 20, 2014.

ENDORSEMENT

Introduction

[1]

The appellant appeals from summary judgment granted by the motion judge dismissing
    his action against the respondent surveying company.

[2]

This litigation arose from a dispute between the appellant and his
    neighbour regarding the location of a boundary line between their respective
    properties.  The appellant and his wife purchased their lot on June 30, 1999. 
    After they acquired the property, the appellant planted a hedge along what he understood
    to be the boundary between his lot and that of his adjoining neighbour, based
    on information provided by his real estate agent.  Several years later, when a
    new owner of the adjoining lot sought to develop his property, a survey
    revealed that the appellants hedge encroached on the neighbours property. 
    The neighbour reclaimed the affected land by having the hedge relocated to the
    boundary depicted on the survey.

Respondents Involvement

[3]

The pertinent background facts regarding the respondents involvement
    may be summarized in brief as follows.

[4]

In 1988, the respondent had prepared a draft reference plan in support
    of the proposed severance of the appellants lot and that of his adjoining
    neighbour.  The neighbour applied for severance to the local Committee of
    Adjustments.  In November 1989, after some amendments to the initial severance
    proposal, the Committee granted both severance and revised minor property
    variances.

[5]

The following year, the respondent prepared another reference plan
    showing the boundaries and respective land areas of the two lots.  A revised
    reference plan was filed in late September 1990 and, on November 19, 1990, was
    accepted by the Committee of Adjustments.

[6]

In October 2001, the adjoining property was sold to a new owner.  It
    remained vacant for some years.  However, in 2006, the new neighbour retained
    the respondent to survey his lot, in support of an application for a building
    permit.  The survey, dated May 30, 2006, revealed that the appellants hedge
    encroached on the neighbours lot.  The neighbour relocated the hedge to the
    boundary depicted on the final September 1990 reference plan and the May 2006
    survey.

[7]

The appellant retained counsel to investigate the boundary issue.  He
    also visited the respondents offices, asserting that the survey was incorrect
    or faulty and that he had lost property as a result.  In late August 2006, he
    obtained a copy of the final reference plan from the respondent.  The appellant
    did not accept the respondents explanation of the boundary line.  He continued
    to attend at the respondents offices on several occasions in 2006 and 2007 in
    an effort to obtain a corrected reference plan reflecting what he regarded as
    the boundary line contemplated by the Committee of Adjustments prior decision.

[8]

In November 2011, when the dispute concerning the accuracy of the survey
    and the reference plan continued, the appellant sued the respondent and the
    Association of Ontario Land Surveyors, seeking various forms of relief.  As
    against the respondent, among other things, the appellant claimed general and
    punitive damages and an order correcting the disputed survey and reference
    plan.

[9]

On March 30, 2012, the Association of Ontario Land Surveyors obtained
    summary judgment, dismissing the appellants action as against the
    Association.  That judgment is not at issue on this appeal.

[10]

The
    respondent also moved for summary judgment.  The appellant filed no evidence in
    response to the respondents motion.

[11]

The
    motion judge found there was no genuine issue requiring a trial.  He noted that
    the appellants claim as against the respondent was framed in negligence and determined
    that the claim was outside the two-year limitation period established by s. 4
    of the
Limitations Act, 2002
, S.O. 2002, c. 24, Sched. B (the
    Act).

[12]

The
    motion judge also found that: there was no evidence of negligence by the
    respondent in the performance of its survey work; the respondent was not
    responsible for the appellants mistake regarding the location of the disputed
    boundary line; and, even assuming that the respondent owed the appellant a duty
    of care, the losses claimed by the appellant were too remote from any alleged
    negligence, in any event.  On this ground, as well, the motion judge concluded
    that the appellant had no actionable claim against the respondent.

[13]

Accordingly,
    by order dated October 20, 2014, the motion judge granted summary judgment in
    favour of the respondent and dismissed the appellants action.

Discussion

[14]

We see no error in the motion judges conclusion that the appellants
    action was statute-barred.

[15]

Contrary to the appellants submission, his claim against the
    respondent, as pleaded, sounds in negligence (as reflected, for example, in paras.
    1, 34 and 35 of the statement of claim).  Consequently, the two-year limitation
    period provided for under s. 4 of the Act applied.

[16]

On
    the uncontradicted evidence before the motion judge, the appellant knew, by the
    summer of 2006, of the encroachment of his hedge on his neighbours property and
    of the boundary dispute.  Critically, the appellant acknowledged before the
    motion judge that, after conducting his own enquiries and attending at the
    respondents offices on several occasions, he had sufficient information by
    September 2008 to conclude that he had a cause of action against the respondent.

[17]

In
    these circumstances, the limitation period commenced to run by no later than
    September 2008 and expired by no later than September 2010.  The appellant did
    not commence his action against the respondent until November 2011, after
    expiry of the limitation period.  Accordingly, his action was statute-barred.

[18]

Before
    this court, the appellant argues that the motion judge had no jurisdiction to
    proceed with the summary judgment motion because, at the time of the motion, his
    action had already been set down for trial.  Further, the appellant says that
    he did not consent to the scheduling of a long motion for argument of the
    summary judgment motion.

[19]

These
    arguments do not assist the appellant.  We are satisfied that the respondent
    was entitled to bring a summary judgment motion under r. 20 of the
Rules of
    Civil Procedure
, R.R.O. 1990, Reg. 194 when it did.  Further, any
    procedural irregularity in the scheduling of a long motion does not undercut
    the reality that, as a matter of law, the limitation period in this case had
    run by the time the appellant started his action.

[20]

The
    appeal is therefore dismissed.  The respondent is entitled to its costs of the
    appeal, fixed in the amount of $7,500, inclusive of disbursements and all
    applicable taxes.

E.A. Cronk J.A.

Gloria Epstein
    J.A.

Grant Huscroft
    J.A.


