COURT OF APPEAL FOR ONTARIO

CITATION:
Iatomasi v. Conciatori, 2012 ONCA 913

DATE:  20121224

DOCKET: C54073

Doherty, Goudge and Hoy JJ.A.

BETWEEN

Giuseppe Iatomasi and Gabriella Iatomasi

Plaintiffs (Respondents)

and

John Conciatori and Angela Conciatori

Defendants (Appellants)

Marc Munro, for the appellants

Robert Whitmore, for the respondents

Heard:  December 14, 2012

On appeal from the judgment of Justice Dale Parayeski of
    the Superior Court of Justice, dated June 6, 2011, with reasons reported at 2011
    ONSC 3819.

ENDORSEMENT

[1]

Mr. and Mrs. Iatomasi purchased a home from Mr. and Mrs. Conciatori.
    Within weeks of the closing, the basement leaked.  The Iatomasis undertook what
    they considered to be the necessary repairs and sued the Conciatoris for the costs
    of those repairs.  They alleged fraudulent and negligent misrepresentation as
    well as breach of contract.

[2]

The Conciatoris took the position that there were no misrepresentations of
    any kind.  They also relied on the entire agreement provision in the
    agreement of purchase and sale.  In essence, the Conciatoris maintained they
    had made no misrepresentations and that the
caveat emptor
doctrine applied
.

[3]

The trial judge found that Mr. Conciatori had made certain false
    representations to Mr. Iatomasi and that the latter had relied on those
    representations (at paras. 21-23).   He further found that the
    misrepresentations were negligent, or fraudulent, or both (at para. 29).

[4]

On the issue of damages, the trial judge accepted that the Iatomasis
    were entitled to recover the amounts paid to investigate and then remedy the
    water penetration and structural problems they encountered (at para. 25).  The
    trial judge went on to find that on the evidence the Iatomasis had overpaid for
    some of the work done.  He reduced the damage claim accordingly.

[5]

Counsel for the Conciatoris (appellants) raises several grounds of
    appeal.  We find it necessary to deal only with the arguments that address the
    findings of fraudulent misrepresentation and the damage assessment.

liability

[6]

The trial judge found that Mr. Conciatori made three misrepresentations
    to Mr. Iatomasi.  Those three can be boiled down to two for the purposes of our
    analysis.  First, the trial judge found that Mr. Conciatori had expressly
    represented that there had never been any problems concerning water leaking
    into the basement.  In fact, Mr. Conciatori knew there was a history of that
    problem.  Second, on the trial judges findings, Mr. Conciatori impliedly
    represented that the home (which he had built) had been constructed to the
    specifications shown in the plans he gave to Mr. Iatomasi during their negotiations
    and before offers were exchanged.  The trial judge found that Mr. Conciatori knew
    that the basement walls were in reality not reinforced in the manner indicated
    in the plans.

[7]

The trial judges conclusions that these misrepresentations were made
    and that they were relied on by the Iatomasis in entering into the contract of
    purchase and sale are factual findings.  This court must defer to those findings
    absent clear and palpable error.

[8]

On the first misrepresentation, Mr. Iatomasi gave evidence that in
    response to a direct question, Mr. Conciatori assured him that there had been
    no leakage problems in the basement.  The trial judge was entitled to accept
    this evidence.  In doing so, he observed, correctly we think, that there was
    some evidence confirming Mr. Iatomasis testimony.  There is no basis upon
    which we could interfere with the finding of a fraudulent misrepresentation
    based on Mr. Conciatoris representation concerning the absence of any history
    of leakage-related problems in the basement.

[9]

The second basis upon which the trial judge found fraudulent
    misrepresentation is entitled to the same deference as the first.  However,
    this finding was not based on any assessment of the evidence, but rather on the
    inference drawn from Mr. Conciatoris silence when he gave Mr. Iatomasi the
    plans.  On the evidence, there was nothing said about the plans when Mr.
    Conciatori gave them to Mr. Iatomasi.

[10]

The
    trial judge ultimately concluded, at para. 22, that:

Mr. Conciatoris silence on the point of his deviation from the
    plans would suggest to any reasonable listener that the plans had indeed been
    followed.

[11]

Considering
    that the plans were provided to Mr. Iatomasi in the context of an arms-length
    negotiation between a putative vendor and purchaser, we think the trial judges
    finding of an implied representation as to the accuracy of those plans was
    unreasonable.  Indeed, the trial judge seemed to treat this misrepresentation as
    different from the explicit misrepresentation concerning the history of any
    leaks in the basement.  The trial judge noted immediately after making the
    findings: I find all three representations were false, albeit to different
    degrees (at para. 23).  When liability is based on fraudulent
    misrepresentation, there can be no different degrees of falsity.

[12]

Even
    though we would sustain only the finding of a misrepresentation with respect to
    the history of any leakage-related problems in the basement, that finding
    suffices to uphold the trial judges determination on liability based on
    fraudulent misrepresentations.

damages

[13]

On
    the issue of damages, counsel for the appellants submits that the trial judge
    improperly used a contract measure of damages rather than a tort-based
    measure.  The trial judge did not identify the measure of damages he used.  His
    reasons are open to the interpretation put forward by counsel for the
    appellants.  They are, however, also consistent with a loss of value approach
    appropriate to tort-based liability.

[14]

The
    trial judges approach to damages is similar to that taken in
Gumbmann v.
    Cornwall
(1986), 4 A.C.W.S. (3d) 38
    (Ont. H. Ct. J.), affd [1998] O.J. No. 2239 (C.A.)
.  We think it
    was open to the trial judge to conclude that the difference between the price
    paid for the property and the actual value of the property at the time of the sale
    was equal to the amount needed to remedy the problems connected with the fraudulent
    misrepresentation concerning the ongoing leakage in the basement.  In other
    words, the difference between the actual value of a house with a leaking
    basement and the price paid was equal to the costs of the repairs needed to fix
    the existing leakage-related problems.

[15]

Even
    accepting that the trial judge used a loss of value measure of damages, those
    damages must be reassessed in light of our finding that the fraudulent
    misrepresentation was limited to misrepresentation concerning the history of
    any leakage-related problems.  In his assessment, the trial judge did not
    distinguish between repair costs associated with correcting the existing leakage-related
    problems and the costs associated with the correction of structural problems in
    the basement not related to the past history of leakage, but necessary to
    prevent future potential leaks.  This latter category was not related to the
    only fraudulent misrepresentation established on the evidence.  That misrepresentation
    was directed at the history of leakage-related problems in the basement and not
    the overall integrity of the structure of the basement.

[16]

Using
    the figures accepted by the trial judge, we would reduce the damages by
    removing the amounts paid to install angle iron and grout and to do radar
    screening of the basement walls (at paras. 25, 28).  These costs were not
    related to repairs needed to correct existing leakage-related problems.
    Bearing in mind the deductions in these amounts made by the trial judge, our
    removal of these amounts from the award reduces the damages by $22,157.58, leaving
    an award of $48,040.62.

[17]

We
    allow the appeal to the extent of varying the damages awarded to accord with
    these reasons.  The appellants were partially successful on the appeal.  Counsel
    agreed that if the appellants were entirely successful, they should have costs
    of the appeal in the amount of $15,500.  In all the circumstances, costs in the
    amount of $10,000, inclusive of disbursements and relevant taxes, are awarded
    to the appellants.

[18]

As
    we have varied the trial judgment, the costs of the trial must be reassessed.
    Hopefully, counsel can agree on those costs without the expense associated with
    further appearances before the trial judge.  We would, however, order the
    matter of costs of the trial remitted to the trial judge.

Doherty J.A.

S.T. Goudge J.A.

Alexandra Hoy J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Keewatin v. Ontario
    (Natural Resources), 2012 ONCA 891

DATE: 20121217

DOCKET: M41405, M41465, M41468,

M41472, M41473, M41474 (C54314)

Sharpe J.A. (In Chambers)

BETWEEN

Andrew Keewatin Jr. and Joseph William Fobister
    on their own behalf and on behalf of all other members of Grassy Narrows First
    Nation

Plaintiffs (Respondents)

and

Minister of Natural Resources

Defendant (Appellant)

and

Resolute FP Canada Inc.
    (formerly Abitibi-Consolidated Inc.)

Defendant (Appellant)

and

The Attorney General of
    Canada

Third Party (Appellant)

Robert Janes and Elin Sigundson for Keewatin et al

Michael Stephenson and Mark Crow, for the Minister of
    Natural Resources

Christopher Matthews, for Resolute FP Canada Inc.
    (formerly Abitibi)

William J. Burden and Linda I. Knol, for Goldcorp Inc.

Sean Fairhurst, for Ermineskin First Nation et al

Gary Penner and Barry Ennis, for the Attorney General of
    Canada

Peter Hutchins and Robin Campbell, for Grand Council
    Treaty 3

Bruce McIvor, for Wabauskang First Nation and Big Grassy
    First Nation

David Leitch, for Lac Seul First Nation

ADDITIONAL ENDORSEMENT

[1]

I have been asked for assistance in settling the terms of my order of
    July 3, 2012 with respect to intervener status. Mr Janes letter of October 18,
    2012 attaches a form or order to which all parties and interveners except Lac
    Seul First Nation, Wabauskang and Big Grassy agree, and indicates that those
    interveners will provide differing language with respect to para. 7 of the
    order.

[2]

The court has subsequently heard from counsel for La Seul who did not
    propose other terms but indicated that he was prepared to leave the matter to my
    discretion or the discretion of the panel hearing the appeal. None of the other
    interveners have proposed different terms.

[3]

The language of para. 7 of Mr. Janes draft, stating that the intervener
    parties and intervener friends of the court shall not be entitled to seek costs
    or be liable for costs of the appeals, corresponds with the usual practice of
    this court. Accordingly, in the absence of any submission that some other order
    should be made, I approve the draft order submitted by Mr. Janes.


COURT OF APPEAL FOR ONTARIO

CITATION:
Laczko v. Alexander, 2012
    ONCA 872

DATE: 20121211

DOCKET: M41762

Weiler J.A. (In Chambers)

BETWEEN

Janos Laczko

Plaintiff (Responding Party)

and

Edwin Alexander and Mercedes Property Management
    Ltd.

Defendants (Moving Parties)

William G. Scott, for the moving parties

Richard A. Wellenreiter, for the responding party

Heard: November 13, 2012

On a motion to extend the time to appeal the order of
    Justice Jane A. Milanetti of the Superior Court of Justice, dated May 22, 2012.

COSTS ENDORSEMENT

[1]

The applicants motion to extend the time to appeal the order striking
    his statement of defence was heard November 13, 2012, with reasons dismissing
    the motion released on November 20, 2012.  At that time, I indicated that the
    respondent was entitled to his costs with submissions as to costs to be made in
    writing. The time for providing submissions now having passed, this is my
    endorsement on costs.

[2]

Laczko seeks costs on a substantial indemnity basis. The courts
    discretion to award costs is governed by s. 131 of the
Courts of Justice
    Act
, R.S.O. 1990, c. C.43, and by r. 57.01 of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194. It is well established that costs should
    be awarded on a partial indemnity basis unless justice can only be done by
    complete or substantial indemnification: see
Foulis v. Robinson
(1978), 21 O.R. (2d) 769 (C.A.). As a general rule, justice will only require
    substantial indemnification where there has been reprehensible, scandalous or
    outrageous conduct on the part of one of the parties:
Young v. Young,
[1993]
    4 S.C.R. 3, at p. 134. Alexanders unjustified failure to comply with his
    disclosure obligations was no doubt worthy of rebuke; reprehensible,
    scandalous, or outrageous, it was not. I would, therefore, decline to award
    costs on a substantial indemnity basis.

[3]

Having regard to the result achieved, the complexity of the motion, and
    the general principles set out in r. 57.01(1), I order that costs be awarded on
    a partial indemnity basis, fixed in the amount of $ 7,044.36, inclusive of
    disbursements and applicable taxes.

K.M. Weiler J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Laffin v. Association
    of Professional Geoscientists of Ontario, 2012 ONCA 846

DATE: 20121203

DOCKET: C55752

Winkler C.J.O., Pepall J.A. and Smith J. (
Ad
    Hoc
)

BETWEEN

Amanda Laffin

Respondent

and

Association of Professional Geoscientists of
    Ontario

Appellant

Carol Street and Ben Millard, for the appellant

Chantelle Bryson, for the respondent

Heard and released orally: November 23, 2012

On appeal from the order of the Divisional Court (Justices
    Lynne Leitch, Katherine E. Swinton, and Alexandra Hoy) of the Superior Court of
    Justice, dated December 12, 2011.

ENDORSEMENT

[1]

The appellant, the Association of Professional Geoscientists of Ontario,
    appeals from the December 12, 2011 decision of the Divisional Court allowing
    the appeal of the respondent, Amanda Laffin, from an October 3, 2010 decision
    of the Council of the Association.

[2]

The Professional
Geoscientists Act, 2000
, S.O. 2000 c. 13,
    regulates those involved in the practice of professional geoscience in Ontario.
    The Act establishes the Association of Professional Geoscientists of Ontario.
    An individual must meet prescribed requirements to become a member of the
    Association.  Council of the Association is authorized and has made regulations
    on eligibility for membership, standards and educational requirements.

[3]

Section 8(1)1.(i) of the regulations provides that an applicant for
    membership shall, among other things, hold a four-year Bachelor of Science
    degree or its equivalent, awarded by a Canadian University, in an area of geoscience
    and have at the time of applying at least four years of qualifying work
    experience, as determined by the Registration Committee, in an area of
    geoscience.

[4]

The respondents application for membership was deferred by the
    Registration Committee on the basis that although she had a four-year Bachelor
    of Science degree in geology and geography from a Canadian University, she was
    required to take four additional university courses in order to be registered
    as a member.  The decision to defer membership was based on a consideration of
    guidelines that were posted on the Associations website. The Association Council
    upheld the Registration Committees decision.

[5]

The respondent appealed the Councils decision to the Divisional Court
    on the basis that it had no authority to impose these additional requirements.
    The Divisional Court allowed the appeal.

[6]

Before this court the appellant submits that the Divisional Court erred
    in finding that there was no statutory authority to examine the nature of the
    respondents courses and failed to give sufficient deference to the decision of
    the Associations Council. It argues that the Divisional Courts interpretation
    is inconsistent with other provisions of the Act and its purpose including
    protection of the public interest. It also would have the effect of diminishing
    the interprovincial mobility of members. The appellant also took issue with the
    Divisional Courts finding that the Association had conceded that the
    respondents two majors were within the domain of geoscience.

[7]

In our view, the Divisional Court identified and applied the appropriate
    standard of review, namely reasonableness, and accorded the appropriate degree
    of deference. We see no error in either its analysis or its conclusion and
    accordingly, the appeal is dismissed.

[8]

Although it has no bearing on the appeal relating to the respondent, we
    note from the record before us that the Association sought and obtained an
    amendment to the regulation effective September 7, 2012 such that in the
    future, its concerns will be addressed.

[9]

Costs of the appeal are awarded to the respondent in the amount of
    $40,000 including taxes and disbursements.

Winkler C.J.O.

S.E. Pepall J.A.

Patrick Smith J. (
ad hoc
)


COURT OF APPEAL FOR ONTARIO

CITATION:
MacLean
    (Re), 2012 ONCA 909

DATE: 20121221

DOCKET: C55624

Doherty, MacPherson and Blair JJ.A.

IN THE MATTER OF: GREGORY MacLEAN

AN APPEAL UNDER PART XX.1 OF THE
CODE

Gregory MacLean in person

Joseph Di Luca, as
amicus
    curiae

Jennifer Mannen, for the Attorney
    General of Ontario

Barbara Walker-Renshaw for
    the Person in Charge of Ontario Shores Mental Health Centre

Heard and released orally: December 19, 2012

On appeal against the disposition of the Ontario Review
    Board dated, May 22, 2012.

ENDORSEMENT

[1]

Mr MacLean seeks to set aside the disposition of the Ontario Review
    Board dated May 22, 2012, finding that he posed a significant threat to the
    safety of the public and ordering him detained on the Secure Forensic Service
    at Ontario Shores Centre for Mental Health Sciences (Ontario Shores).

[2]

In August, 2011, Mr. MacLean was found Not Criminally Responsible in
    relation to two counts of assaulting a peace officer, two counts of mischief to
    property and two counts of failing to comply with a recognizance. Just prior to
    the hearing leading to this appeal, he had been detained in the General
    Forensic Service at Ontario Shores. The hospital requested an earlier review
    hearing before the Board on the basis that the General Forensic Unit was not
    able to manage Mr. MacLeans increasingly difficult and threatening behaviour,
    and asked that he be transferred to the Secure Forensic Service.

[3]

The Board found that Mr. MacLean continued to pose a significant threat
    to the safety of the public and granted the hospitals request that he be
    transferred to the Secure Forensic Service. In doing so the Board relied upon a
    number of factors, including: (i) a review of the index offences; (ii) the
    severity of Mr. MacLeans illness (schizophrenia, paranoid type, as well as
    what are known as
Capgras
delusions, which are themselves considered to
    be very dangerous types of delusions): (ii) the fact that Mr. MacLeans illness
    was untreated (because he refused treatment): (iv) his complete lack of insight
    into his illness or need for treatment; and (v) his aggressive behaviour in
    hospital. All of these considerations were open to the Board based on the hospital
    and other records filed and, in particularly, the evidence of Mr. MacLeans
    treating psychiatrist, Dr. Bottas.

[4]

In his Notice of Appeal, Mr. MacLean raises a number of grounds
    attacking the reliability and truthfulness of the evidence of Dr. Bottas and
    the manner in which she infringed his religious rights and freedoms in arriving
    at her diagnosis.  He argues today that he has not really received any
    additional benefits from his transfer. He asks for an absolute discharge.

[5]

Mr. Di Luca, as
amicus curiae
, focused on one ground of appeal:
    he submitted the Board erred in applying the test for determining the least
    onerous and least restrictive disposition and, in particular, erred by engaging
    in circular reasoning in finding that detention in the Secure Forensic Service
    was appropriate because in the event the appellant becomes violent everyone
    will be safer.

[6]

We do not accept these submissions.

[7]

We see no error in the Boards assessment of the evidence of Dr. Bottas,
    which the Board was entitled to accept, as it did.  There was ample basis in
    the record for the Boards findings, as outlined above, leading to the finding
    that Mr. MacLean continued to pose a significant risk to the safety of the
    public.  Given that finding, the Board was correct in holding that Mr. MacLean
    is not a candidate for an absolute discharge.

[8]

Nor was the Boards conclusion that the least onerous and least
    restrictive disposition was a detention order featuring Mr. MacLeans transfer
    to the Secure Service unit unreasonable.

[9]

At the time as the Board held, Mr. MacLean was not a suitable candidate
    for community living  and, therefore, for a conditional discharge  given his
    potential for threatening behaviour, his untreated illness, his lack of insight
    into his illness and his determination to keep his body free of medication and
    to be self-sufficient.  The evidence of Dr. Bottas was that, in such
    circumstances, Mr. MacLean would be very unlikely to abide by the
    restrictions or conditions imposed upon him and that it would be completely
    unrealistic that he could function well in the community.

[10]

This
    leaves the Boards determination that the least onerous and least restrictive
    disposition was for Mr. MacLean to be detained in hospital and, in particular,
    on the Secure Service unit at Ontario Shores. We observe that, in arriving at
    its determination of what is the least onerous and least restrictive
    determination, the Board is required to take into consideration: (i) the need
    to protect the public from dangerous persons, (ii) the mental condition of the
    accused, (iii) the reintegration of the accused into society, and (iv) the
    other needs of the accused:
Criminal Code
, s. 672.45(2)

[11]

Here
     as the Board acknowledged  Dr. Bottas recommendation that Mr. MacLean would
    have more freedom on the Secure Forensic Service appears, at first blush,
    paradoxical. However, the Boards acceptance of that view was reasonable in the
    circumstances, in our opinion. The evidence was that Mr. MacLean would, in
    fact, enjoy greater liberties and freedom on the Secure Forensic Service than
    he then enjoyed on the General Forensic Service because of the more favourable
    staff-to-patient ratio on the former and because his aggressiveness and
    threatening behaviour to staff required him to be on close observation on the
    General Forensic Service. Close observation means that he must be directly
    observed by a nurse every 15 minutes and that he is not permitted to enjoy
    off-ward privileges except for emergency or compassionate reasons. On the
    Secure Forensic Service, on the other hand, Mr. MacLean would be given greater
    freedom, should he choose to enjoy it, to access the hospitals grounds and the
    community (because of the higher staff-to-patient ratio, patients on the Secure
    Service are permitted, under supervision, to go onto the hospital grounds daily
    and into the community twice a week). It follows that Mr. MacLeans detention
    under the terms ordered by the Board is actually less onerous and less
    restrictive than would be the case had he been ordered to be detained on the
    General Forensic Service.

[12]

Finally,
    we do not agree that the Board engaged in circular reasoning based on
    speculative evidence to conclude that, because Mr. MacLean may in the future
    refuse to consent to treatment and act out violently as a result of incapacity
    proceedings, thus potentially endangering staff and others in the event that
    happened, that he should be placed on the Secure Service. The Boards conce
rn in this regard was simply an additional incidental
    benefit flowing from the decision already made to place Mr. MacLean on the
    Secure Forensic Service and in any event, given Dr. Bottas opinion, we are not
    able to say that the concern was unreasonable in the circumstances.

[13]

For
    all of the foregoing reasons, we dismiss the appeal.

D. Doherty J.A.

J.C. MacPherson J.A.

R.A. Blair J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
McLean v. Shedden, 2012
    ONCA 860

DATE: 20121206

DOCKET: C54215

Sharpe, Rouleau and Hoy JJ.A.

BETWEEN

Lawrence
    McLean, Kevin Fehr and Sweeney Todds Microbrewery
    Pub and Restaurant Inc. Get Out of My Kitchen, 1422334 Ontario Inc., and
    Couple in Black Ltd.

Plaintiffs/Respondents

and

Callum Shedden
and
    David Brown

Defendant/Appellant

Michael Bordin, for the appellant

Marc Munro, for the respondents

Heard: November 2, 2012

On appeal from the judgment of Justice D. Crane of the
    Superior Court of Justice, dated July 21, 2011.

ENDORSEMENT

[1]

The appellant, a solicitor who had acted for the respondents when they
    purchased a pub, does not challenge the trial judges finding that he was
    negligent in failing to advise the respondents of the steps they needed to take
    to transfer the pubs liquor licence.

[2]

The appellant submits, however, that the trial judge erred in awarding
    the respondents damages of $65,000, measured by one half of the price they paid
    for the pub.

[3]

The appellant submits that the trial judge based his damage award on a theory
    not advanced by the respondents and for which there was no supporting evidence.
    We agree that the focus at trial appears to have been the respondents
    assertion that the restaurant was economically viable. They led expert evidence
    to support that claim. The trial judge scrutinized and rejected that evidence
    and found that the restaurant was not economically viable.

[4]

While that finding led the trial judge to reject the respondents claim
    for damages measured by the value of the pub as a going concern reduced by the
    amount of the indebtedness the respondents incurred operating the pub, in our
    view it was still open to the trial judge to find that despite its serious
    economic difficulties, the pub had some resale value. The trial judge fixed
    that resale value by substantially discounting the amount paid by the
    respondents to purchase the pub

[5]

The trial judge mentioned the good regular clientele the pub enjoyed,
    the opportunities of the Niagara Wine and Food Festival, the popularity of
    microbrewery specialty beers, and a favourable lease. These factors led him
    to conclude that despite the fact that, as run, the pub was not viable as a
    going concern under the respondents management, there was a reasonable basis
    to build the business, and that it therefore would have had some resale value
    if it had maintained a valid liquor licence. While the trial judges reasons
    certainly could have been clearer, we are satisfied that there was some
    evidence to support the award he made and that his assessment is entitled to
    deference on appeal.

[6]

The appellant also submits that the trial judge erred by failing to find
    that the respondents were the authors of their own misfortune. They should have
    read the liquor licence and had they done so, they would have realized it had
    to be renewed. Again, the trial judges reasons are admittedly not entirely
    satisfactory. However, we understand his analysis to have proceeded on the
    following basis. The sale of the pub closed in August 2000 and under the terms
    of their agreement with the vendor and the practice of the Liquor Licence
    Commission, the respondents had 90 days from the date of closing to obtain the
    then vendors signature and to have the licence transferred in the purchasers
    name.

[7]

Had the respondents read the license, all they would have learned is
    that it expired in September 2001. From simply reading the licence, they would
    have been unaware that approval of the change in control of the business had to
    be obtained within 90 days in order to maintain the licence. The appellant
    negligently failed to advise the respondents to take the necessary steps to
    have license transferred within that 90 day period. It follows, accordingly,
    that there was a basis on the evidence to support the trial judges award of
    damages for the resale value of the pub with a valid licence, despite his
    finding that the respondents were themselves at fault for failing to read their
    own licence.

[8]

Accordingly, the appeal is dismissed with costs fixed at $15,000
    inclusive of disbursements and taxes.

Robert J. Sharpe J.A.

Paul
    Rouleau J.A.

Alexandra
    Hoy J.A.


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.