



COURT OF APPEAL FOR ONTARIO

CITATION:
Century
    Parking Services Inc. v. Tandem Property Management Inc., 2012
    ONCA 414

DATE: 20120615

DOCKET: C53964

Doherty, Juriansz and Ducharme JJ.A.

BETWEEN

Century Parking Services Inc.

Plaintiff/Appellant

and

Tandem Property Management Inc. and Axes
    Investments Inc.

Defendants/Respondents

J. David Sloan, for the plaintiff/appellant

Brett D. Moldaver, for the defendants/respondents

Heard and released orally: June 12, 2012

On appeal from the judgment of Justice A.M. Gans of the Superior
    Court of Justice, dated May 31, 2011.

ENDORSEMENT

[1]

This appeal cannot succeed. On the findings of fact the trial judge made,
    the appellants claim in respect of maintenance fees is statute-barred. A
    reasonable person in the appellants position would have known as early as
    October 1996 that Axes was not making the payments under the oral contract made
    in March 1994. Certainly, by May 1999, a reasonable person in the appellants
    position would have known that he had not received the payments to which he was
    entitled under the oral contract. Axes later representation that it was making
    the payments to a third party is of no moment when the appellant knew or ought
    to have known that it was not receiving the payments under the contract
    directly or indirectly.

[2]

In our view, it was open to the trial judge to conclude that the
    appellants acquiescence barred recovery on its claim that Axes was unjustly
    enriched by its provision of management services without compensation. We do
    not agree that the trial judges conclusion on this issue was speculative and
    not based on evidence in the record. The maintenance agreements that the
    parties concluded during the period that the management services were provided
    were in evidence.  The trial judges inference that Axes would likely have
    adopted a different posture in the negotiation of those contracts was based on
    evidence, and in our view was well founded.

[3]

In the result, the appeal is dismissed with costs to the respondents
    fixed in the amount of $21,000 inclusive of disbursements and applicable taxes.

D. Doherty J.A.

R.G. Juriansz J.A.

E.W.
    Ducharme J.A.


