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PROCEEDINGS - Practice and procedure - Limitation periods

Friday, May 22, 2020 @ 9:06 AM  

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Appeal by the plaintiffs, the Beniuks, from the summary dismissal of their action against the Municipality of Leamington. The plaintiffs’ residence abutted a rural roadway originally constructed prior to 1927 as a farm access trail. In 2006, the roadway experienced a significant increase in heavy truck traffic. The plaintiffs and neighbours complained to the Municipality at a February 2008 council meeting. The Municipality declined to reconstruct the road. The plaintiffs retained an engineering firm who opined that vibrations from the traffic caused structural damage to the plaintiffs’ residence. In December 2009, the plaintiffs commenced a proceeding before the Ontario Municipal Board claiming that the construction of the road caused injurious affection. In January 2018, the Board concluded that it had no jurisdiction on the basis that the claim related to post-construction use rather than injurious affection arising from the roadway’s construction. A few days later, the plaintiffs commenced a civil action against the Municipality seeking damages for nuisance and negligence based on ongoing damage to their home caused by the roadway. A motion judge dismissed the action on the basis that it was statute-barred, and that the Municipality’s duty of care to keep roads in a reasonable state of repair did not extend to adjoining landowners. The plaintiffs appealed.

HELD: Appeal allowed in part. The motion judge correctly found that the 10-year limitation period under s. 4 of the Real Property Limitations Act did not apply to the plaintiffs’ claim, as it was not a claim to recover land. There was no error in the motion judge’s conclusion that the general two-year limitation period applied and thus barred most of the plaintiffs’ action. Given the Municipality’s immediate challenge to the Board’s jurisdiction in 2010, it was not legally appropriate from a discoverability perspective for the plaintiffs to await the Board’s decision in 2018 prior to commencing civil proceedings. However, there was evidence before the motion judge that supported the occurrence of some damage within the two-year period before the action commenced. There was thus a genuine issue for trial as to whether the limitation period had expired in respect of ongoing tortious conduct. In addition, it was appropriate to leave open for trial the issue of whether the Municipality owed the plaintiffs a duty of care under s. 44 of the Municipal Act in respect of such damage.

Beniuk v. Leamington (Municipality), [2020] O.J. No. 1294, Ontario Court of Appeal, K.M. van Rensburg, D. Paciocco and J.A. Thorburn JJ.A., March 25, 2020. Digest No. TLD-May182020009