Rene Labrecque v. Diane Labrecque, 2021 SKPC 3

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2021 SKPC 3 Date: January 15, 2021 File: Claim # 570 [2019] Location: Saskatoon _____________________________________________________________________________ Between: Rene Labrecque and Diane Labrecque - and - GGM Developments Ltd. Patrick Loran For the Plaintiffs Richard Carlson For the Defendant _____________________________________________________________________________ JUDGMENT S.L.

METIVIER , J _____________________________________________________________________________ INTRODUCTION [ 1 ] The plaintiffs, Rene and Diane Labrecque, are the registered owners of a residential property located at 510 Fast Way in Saskatoon, Saskatchewan (the “Property”). The plaintiffs allege that their Property was damaged in the course of construction activities conducted on an adjacent property, 506 Fast Way, which at the time was owned by the defendant, GGM Developments Ltd. (the “Defendant’s Property”).

Specifically, the plaintiffs claim that on or before October 31, 2017, the Defendant committed a trespass by excavating outside of their property line and thereby caused damage to the sidewalk, fence and gate located on the Property.

[ 2 ] The defendant admits that a trespass took place but denies that it caused damage to the Property as alleged in the Statement of Claim. The defendant further asserts that the Plaintiffs’ action, which was issued on November 6, 2019, is barred by

section 19 of The Limitations Act , SS 2004, c L-16.1 [ Act ], which requires that an action be commenced within two years from the day on which the claim is discovered. LIMITATION PERIOD [ 3 ] The following sections of the Act are applicable to this action: Basic limitation period 5 Unless otherwise provided in this Act , no proceedings shall be commenced with respect to a claim after two years from the day on which the claim is discovered. Discovery of claim 6

(1) Unless otherwise provided in this Act and subject to subsection (2), a claim is discovered on the day on which the claimant first knew or in the circumstances ought to have known: (

a) that the injury, loss or damage had occurred; (

b) that the injury, loss or damage appeared to have been caused by or contributed to by

an act or omission that is the subject of the claim; (

c) that the act or omission that is the subject of the claim appeared to be that of the person against whom the claim is made; and (

d) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it.

(2) A claimant is presumed to have known of the matters mentioned in clauses (1)(

a) to (

d) on the day on which the act or omission on which the claim is based took place, unless the contrary is proved. Burden of proof 18 If, in a proceeding, a limitation period is raised against a claimant, the claimant has the burden of proving that: (

a) the limitation period has not expired; or (

b) there is no limitation period that applies to the claim. Proceedings commenced after expiry 19 If, after the commencement of a proceeding, it is established that a limitation period applicable to the claim had expired before the commencement of the proceeding, the claim is barred, and the proceeding shall not be maintained. [ 4 ] The timeline of events is not in dispute: the defendant committed a trespass to the Property on or before October 31, 2017 and the plaintiffs commenced an action associated with the trespass on November 6, 2019.

The plaintiffs argue that the two-year limitation period in this case does not start to run until they reasonably discovered the identity of the tortfeasor, which occurred on an unspecified date after October 31, 2017. [ 5 ] When the trespass occurred, the Property was occupied by Michelle Symak, the plaintiffs’ daughter. Ms. Symak testified that the excavation that constitutes the trespass occurred on October 30, 2017. On October 31, 2017 she took photographs of the excavation and contacted her father, Rene Labrecque, to let him know what happened.

Within the first couple of months after the trespass occurred, Ms. Symak talked to friends and contacted the City of Saskatoon to determine who owned the Defendant’s Property.

[6] The Supreme Court reaffirmed in Central Trust Co. v Rafuse, (SCC), [1986] 2 SCR 147 at 224 that “Acause of action arises for purposes of a limitation period when the material facts on which it is based have been discovered or oughtreasonably to have been discovered by the plaintiff by the exercise of reasonable diligence”.

This discoverability rule has been followedby Saskatchewan courts on numerous occasions: See: Desormeau v Holy Family Hospital, Prince Albert (1989), (SKCA), 76 Sask R 241 (Sask CA); United Enterprises Ltd. v North Battleford (City), 2007 SKQB 335, 301 Sask R 134. [7] As the plaintiffs in this case did not know the actual identity of the tortfeasor until sometime after October 31, 2017, thequestion that arises for consideration is whether the identity was discoverable by the exercise of reasonable diligence.

The Ontario Courtof Appeal considered the applicability of the discoverability rule in relation to the identity of a tortfeasor in Safai v Bruce N. Huntley Contacting Ltd., 2010 ONCA 545, 322 DLR (4th) 1 [Safai-CA]; leave to appeal refused 2010 CarswellOnt 8249 (SCC) where theplaintiff slipped and fell on ice in a parking lot, fracturing her ankle. As of the day of the accident, the plaintiff had no informationconcerning ownership of the parking lot. She subsequently retained a lawyer who ascertained the identity of the property owner througha title search.

The lawyer sent a letter regarding his client’s claim and ultimately received a response that another company wasresponsible for snow removal and maintenance of the lot. The lawyer issued a claim against the property owner nine days after thelimitation period had expired.

A separate claim was issued against the snow removal company seven months later. [8] For reasons set out in Safai-CA (para 12) quoting paragraphs 22 and 23 of her reasons for judgement, the motions judge heldthat the discoverability rule had no application to the facts of the case and concluded that the limitation period had expired: It is also apparent that the precise identities of the defendants were not known to the plaintiffs for several weeks, insofar as the propertyowner and several months so far as the maintenance contractor.

It is contended, by the plaintiff, that so long as reasonable diligence isshown in that respect, the limitation period is moveable and does not start to run, until that information is in hand. I do not accept thatthe doctrine of discoverability encompasses such a concept of moving the yardsticks of calculation in the manner suggested by theplaintiffs. There is no evidence before this court that there were casual circumstances giving rise to a cause of action, or potential parties unknownor unknowable or with reasonable diligence to the plaintiffs, such that the doctrine of discoverability has any application.

It is clear onthese facts that all of the elements of the plaintiffs’ cause of action were known within six years from the date she fell.

Other than theinadvertence of the lawyer, there is no circumstances which contributed to a delay in issuing the claims herein to a time beyond thenatural six year period prescribed by the Act. [9] The plaintiff appealed the decision, asserting that the name of the property owner and of the snow removal company “wereessential elements of the cause of action and the time did not run until the appellants knew these names or by the exercise of reasonablediligence could ascertain them” (at para 18). [10] In relation to discovering the identity of the property owner, the Court of Appeal upheld the decision of the motions judge andconcluded, at paragraph 19 (in Safai-CA), that the

interpretation suggested by the appellant stretched the discoverability principle too far: As of the date of the accident, she was in a position to ascertain the name of the registered owner of the property. Reasonable diligenceon her part and on the part of her lawyer produced the name of the registered owner of the building in due course.

In my view, there issimply no reasonable basis in these circumstances to invoke the discoverability rule to postpone the commencement of the limitationperiod. [11] In relation to the snow removal contractor, the Court arrived at the opposite conclusion stating, at paragraph 20, that “Unlikethe name of the owner of the property, there was no simple procedure, such as a search of a public register, to ascertain that the wintermaintenance responsibilities were contracted out to a third party.” [12] It was reasonable for the plaintiffs in this case to assume that they may have a cause of action against the property owner onthe date the incident occurred, as demonstrated by the fact that upon discovery of the excavation their daughter, Ms.

Symak, took steps toascertain the identity of the property owner. While the actual identity of the tortfeasor was not known to the plaintiffs until a later date, itwas discoverable by the exercise of reasonable diligence through a search of a public registry. Accordingly, the discoverability principlehas no application to the facts of this case. As the two-year limitation period prescribed by the Act had expired before the issuance of thePlaintiffs’ Statement of Claim, the claim is barred, and the action dismissed. [13] A judge may award costs pursuant to

section 36 of The Small Claims Act, 2016, SS 2016, c S-50.12. and

section 6 of the TheSmall Claims Regulations, 2017, RRS c S-50.12 Reg 1. Apart from out of pocket expenses, costs awarded at the conclusion of a mattercannot exceed the greater of $200.00 or 10% of the claim. In my view, it is appropriate to award the defendant $150.00 in costs inrecognition of the time and resources committed to defend an action that the plaintiff was statute barred from commencing. In addition,the defendant is entitled to costs in the amount of $50.00 to cover the fee for filing a reply. In sum, the Court orders the plaintiffs to paycosts to the defendant in the amount of $200.00. ______________________ S.L. Metivier, J