



COURT OF APPEAL FOR ONTARIO

CITATION: Irps-Bleeker v. Van Gaalen, 2019 ONCA 592

DATE: 20190710

DOCKET: C66135

Tulloch, Roberts and Miller JJ.A.

BETWEEN

Monika Irps-Bleeker

Plaintiff (Appellant)

and

Janny Van Gaalen, Executor of the Estate of Cor
    Van Gaalen, deceased, Realty Executives Platinum Limited, Andrew Wildeboer,
    Bill Wildeboer, Chris Van Berkel, Royal LePage RCR Realty, Werner Ritgen, Fred
    Lobb, Rick Lobb and Royal LePage Heartland Realty Brokerage

Defendants (Respondents)

Orie Niedzviecki and
    Kaleigh Dryla, for the appellant

Amanda Gibson, for the
    respondents Janny Van Gaalen, Executor of the Estate of Cor Van Gaalen,
    deceased, Realty Executives Platinum Limited, Andrew Wildeboer, Bill Wildeboer,
    Chris Van Berkel and Royal LePage RCR Realty

Allan Powell, for the
    respondents Werner Ritgen, Fred Lobb, Rick Lobb and Royal LePage Heartland
    Realty Brokerage

Heard and released orally: June 7,
    2019

On
    appeal from the judgment of Justice Gordon D. Lemon of the Superior Court of
    Justice, dated October 11, 2018, with reasons reported at 2018 ONSC 6042.

REASONS FOR
    DECISION

[1]

The appellant appeals the judgment of the Superior Court of Justice
    dated October 11, 2018, dismissing the appellants claim for professional
    negligence and breach of contract on the basis that the action was statute
    barred by virtue of s. 5 (1)(b) of the
Limitations Act
,
2002
, S.O. 2002, c. 24, Sched. B.

[2]

The underlying action arises out of the sale of a property owned by the
    appellant and her then-spouse. The purchaser signed the appellants
    counter-offer on May 31, 2008 and the home was sold on January 9, 2009. The
    appellant alleged that the respondent real estate agents improperly induced her
    to sign a counter-offer and presented the counter-offer to the purchaser
    against her instructions. The appellant commenced this action against the
    respondent real estate agents by notice of action on June 12, 2015 and subsequently
    issued a statement of claim on July 10, 2015.

[3]

The appellant had previously commenced a claim against her family law
    lawyer on March 12, 2012. In this claim, she sought damages for her family law
    lawyers role in the sale of the property. The appellants evidence was that
    she only became aware that she had a claim against the respondent real estate
    agents during the examination for discovery of her family law lawyer on March
    18, 2015.

However, the appellant obtained a real estate licence on June 14, 2013.
    Before obtaining her licence, she took courses in real estate, including
    courses where she learned about the obligations that real estate agents owe to
    their clients.

[4]

The motions judge found that s. 5(1)(b) of the
Limitations Act
,
    2002
barred the appellants claim. He accepted that the appellant did not
    subjectively know that she had a claim against the real estate agents until the
    examination for discovery of her family law lawyer on March 18, 2015. However,
    he found that, on her own evidence, she knew that by January 9, 2009, that the respondents
    had induced her to sign the counter-offer and that the counter-offer had been
    presented to the purchaser against her instructions. She thus would have known
    that the respondents had treated her unfairly. The motions judge also found
    that when she began taking real estate courses, a reasonable person with her
    abilities and in her circumstances would seek out whether she had a legal
    remedy for what she saw as the unfair conduct of the respondents. Because the
    appellant began taking the real estate courses well before she obtained the
    licence, the motions judge found that she should have known of her claim before
    June 12, 2013. Her claim was thus statute barred.

[5]

The appellant submits that the motions judge made palpable and
    overriding errors of fact by finding that she should have known of her claim
    before June 12, 2013. She argues that he misapprehended the significance of the
    evidence of her family law lawyer and the evidence about the real estate
    courses that she took.

[6]

We would reject this submission. The motions judges decision was
    grounded in the evidence. He found that the appellant knew the loss had
    occurred by January 9, 2009. He relied on the appellants own allegation in the
    statement of claim that the respondents had induced her to sign the
    counter-offer and presented it to the purchaser against her instructions to
    find that she would have known the respondents had treated her unfairly by
    January 9, 2009. The motions judge expressly considered the appellants evidence
    that the real estate courses she took did not identify the particular failings
    of the respondents. However, he found that the courses were sufficient to put
    the appellant on notice to make further inquiries even if they did not
    specifically address the respondents particular failings.

[7]

It was open to the motions judge to make the findings he did based on
    the evidence before him. He applied the relevant legal principles to these
    findings. He concluded that a reasonably prudent person with the abilities and
    in the circumstances of the appellant would have known more than two years
    before the appellant commenced her claim that there were grounds to believe
    that her real estate agents had been negligent. For these reasons we dismiss
    the appeal.

[8]

Costs are to the respondents, Janny Van Gaalen, Executor of the Estate
    of Cor Van Gaalen, deceased, Realty Executives Platinum Limited, Andrew
    Wildeboer, Bill Wildeboer, Chris Van Berkel and Royal LePage RCR Realty in the
    amount of $4,360 all-inclusive on a partial indemnity basis.

[9]

Costs are to the respondents, Werner Ritgen, Fred Lobb, Rick Lobb and
    Royal LePage Heartland Realty Brokerage in the amount of $2,500 all-inclusive
    on a partial indemnity basis.

M. Tulloch J.A.

L.B. Roberts J.A.

B.W. Miller J.A.


