NEXUS HOLDINGS INC. Plaintiff (Respondent) - v. -, 2023 SKKB 6

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 6 Date: 2023 01 06 Docket: QBG-SA-00967-2021 Judicial Centre: Saskatoon ___________________________________________________________________________ BETWEEN: NEXUS HOLDINGS INC. Plaintiff (Respondent) - and - CITY OF SASKATOON Defendant (Applicant) Counsel: Jay D. Watson for the plaintiff (respondent) Erik N. Agrey for the defendant (applicant) ___________________________________________________________________________ FIAT ELSON J.

January 6, 2023 ___________________________________________________________________________ Introduction [ 1 ] On September 15, 2021, the plaintiff issued its statement of claim in this action. In it, the plaintiff asserts that the City of Saskatoon [City] essentially forced the plaintiff to pay offsite levy charges in order to gain the City’s approval of its subdivision plan for a condominium development. The plaintiff contends that the City improperly assessed the offsite levy charges and lacked any basis in law to demand payment before approving the subdivision.

The plaintiff demanded a repayment of the charges, but the City refused. [ 2 ] The City is defending the claim. Aside from asserting that the offsite levy charges were properly assessed, the City relies on a limitation period set out in s. 307(1) of The Cities Act , SS 2002, c C-11.1 . This provision stipulates a one-year limitation from the time damages were sustained for the filing and service of the statement of claim.

In this regard, the City notes that the plaintiff paid the levies on September 2, 2020. [ 3 ] In this application, the City seeks an order striking the statement of claim on the grounds that the circumstances under which the claim is statute barred amounts to an abuse of process under Rule 7-9(2)(

e) of The Queen’s Bench Rules . [ 4 ] Before going further, I think it somewhat noteworthy that the City did not apply for its remedy under Rule 7-1 of the Rules. Rule 7-1 addresses applications to resolve a particular question or issue raised in a civil action. Depending on the question or issue, such a resolution may result in a claim or defence being struck. The noteworthiness of the City’s abuse of process application is that the relevant jurisprudence suggests that such applications require a finding that the plaintiff knew the claim was statute barred when the action was commenced.

Applications under Rule 7-1 involve no such requirement. [ 5 ] Be that as it may, I am satisfied that there is sufficient evidence before the Court to support an inference that the plaintiff had the requisite knowledge when it caused the statement of claim to issue. Accordingly, the Court must allow the application and strike the action. Background Facts [ 6 ] The plaintiff owns property located at 502 Idylwyld Drive North in Saskatoon. In late 2019, it decided to subdivide the property into units as part of a condominium development.

Among other things, The Condominium Property Act, 1993 , SS 1993, c C-26.1 , required the plaintiff to seek approval of the City, as the relevant local authority, for the proposed subdivision. On December 19, 2019, the plaintiff initiated that process by filing the preliminary application form. [ 7 ] Following this filing, the plaintiff’s Chief Financial Officer, Trevor Jacek, engaged in a series of email exchanges with Dwayne Whiteside, Senior Planner in the City’s Planning and Development office. Eventually, Valerie Hardy, a Land Development Coordinator with City, also joined the email conversation.

[ 8 ] The subject of the offsite levy charges arose early in the exchanges. On January 8, 2020, Mr. Whiteside informed Mr. Jacek that the charges were estimated at $134,092.34 and that payment of the charges would be a condition of approval. The offsite levy charges were not discussed again until Mr. Jacek’s email message of February 8, 2020, when he questioned why charges would apply to the initial “condominiumization” but not for the subsequent subdivision. Mr.

Whiteside responded two days later, advising simply that the levies were “a onetime charge, based on the current site size”. [ 9 ] Eventually, on March 10, 2020, Mr. Whiteside informed Mr. Jacek that the approval of the condominium application would be issued once the two conditions outlined by the City’s Transportation & Construction Department were satisfied. One of those conditions called for payment of the offsite levy charges. Following this message, Mr. Jacek and Ms. Hardy engaged in an exchange about the justification for the charges. On March 12, 2020, Ms.

Hardy sent a message in which she explained the rationale for the offsite levy assessment. The text of the email message reads as follows: Good Morning Trevor, Further to your enquiry regarding the offsite levy charges on the above proposed subdivision and the information that Dwayne provided, I can provide the following additional information. Offsite levy charges are assessed against all properties within the City of Saskatoon upon subdivision (including subdivision to condominium status) if the levies have never been paid.

The City has been charging for Prepaid Service Levies since 1968 under the Planning and Development Act and City Council approves the Prepaid Service Rate Levies annually. The City’s source of revenue for the construction of offsite services is the subdivision of property and not taxation. The offsite levies fund the larger piping and roadway systems to service entire neighbourhoods such as trunk sewers and primary roads (not the local services adjacent to properties). As the City has grown, these types of offsite services have been needed and the process of subdivision allows the City to recover overall costs.

As Dwayne explained, any property registered prior to 1968 has not been charged for the offsite services unless a further subdivision occurs. Let me know if you have any other questions. [ 10 ] Although not referenced in Ms. Hardy’s affidavit, Mr. Jacek’s affidavit discloses that he questioned the legality of the offsite levy charges, suggesting that they could only be charged if the City had incurred additional capital costs, which he believed it had not incurred. In this regard, he deposed that he gave Ms.

Hardy an excerpt from s. 169 of The Planning and Development Act, 2007 , SS 2007, c P-13.2 [ PDA ], which he thought supported his view. Indeed, he rather categorically stated that the City’s decision to require offsite levy charges for subdivision approval, without proof of incurred capital costs, was contrary to the PDA . [ 11 ] The City was unmoved. By letter dated June 1, 2020, Ms.

Hardy informed the plaintiff’s surveyor of the two conditions associated with the City’s approval of the proposed subdivision, including the offsite levy charges of $134,092.34. [ 12 ] Subsequently, the plaintiff paid the offsite levy charges in the estimated amount, which payment the City received on September 3, 2020. The City’s approval of the plaintiff’s application followed soon after. Based on my reading of Mr. Jacek’s evidence, the payment of the offsite levy charges was done under protest.

He deposed that the plaintiff’s application “was held hostage by the City and would not be approved” unless it paid the charges. Although not referenced in the affidavits from City officials, Mr. Jacek further said that, after payment, he continued to work with the City to discuss the offsite levy charges and how they should not have applied to the plaintiff’s application. [ 13 ] My understanding of Mr. Jacek’s evidence is that he did not seek legal advice on the matter until May 2021.

Later, on June 7, 2021, plaintiff’s counsel wrote to the City, challenging its authority to charge the levies under s. 169 of the PDA . The essence of counsel’s letter was consistent with Mr. Jacek’s message to Ms. Hardy. The last two paragraphs of counsel’s letter read as follows: The conversion did not result in any direct or indirect cost to the City and will not as there was no increased load, change in density or use, additional infrastructure done or necessary nor was there any impact on the surrounding neighbourhood.

The City has not and will not be incurring additional capital costs as a result of the subdivision and conversion , and therefore is not permitted to impose these development levies pursuant to The Planning and Development Act, 2007 . As such, our client demands the total amount of $134,092.34 be paid in full in return of offsite levies. Please provide payment in full to our office by June 30, 2021.

Failure to do so may result in commencement of legal action, the costs of which will be borne by you. [Emphasis added] [ 14 ] The City, through the City Solicitor’s Office, responded to counsel’s letter on June 15, 2021 (sent by email). The essence of that letter is that the offsite levy charges were properly imposed as a term of the servicing agreement. The City took the position that capital costs were incurred in the construction of offsite services, which benefited the plaintiff’s property.

As such, the City asserted it had legislative authority to impose levies under the servicing agreement pursuant to s. 172(3) (

d) of the PDA . [ 15 ] Subsequently, the plaintiff caused this action to be commenced. As already referenced, the statement of claim was issued on September 15, 2021. According to the affidavit of service on file, the claim was served on the City on September 17, 2021. [ 16 ] In the statement of claim, the plaintiff pleads three causes of action: (1) unjust enrichment; (2) breach of contract; and (3) breach of the PDA .

In support of the unjust enrichment claim, the plaintiff simply pleads that through the payment of the offsite levy charges, the City was enriched and the plaintiff was correspondingly deprived, all in the absence of any juristic reason. [ 17 ] As for the breach of contract allegation, the plaintiff pleads the existence of an implied contract between the parties under which the City had agreed not to impose charges arbitrarily.

[ 18 ] The claim related to the alleged breach of the PDA is more substantively pleaded. The plaintiff says that the City’s statutory right to impose the offsite levy charges related only to the alteration of services where a subdivision increases the burden for those services. From this stance, the plaintiff goes on to plead that the subdivision did not increase this burden and that the City failed to prove any costs associated with it.

Secondly, the plaintiff also pleads that the City did not comply with the requirements of the PDA in that no servicing agreement was executed between the parties prior to the approval of the subdivision. [ 19 ] Finally, the plaintiff pleads that it paid the offsite levy charges “out of caution not to delay the project further” but denies that any such charges were warranted. [ 20 ] Before closing the discussion on the background facts, I should note that Mr. Jacek’s affidavit is essentially confined to a description of his interactions with City officials, particularly Mr. Whiteside and Ms.

Hardy, and the steps the plaintiff took as a result of those interactions. Although he deposed to facts not included in the affidavits filed by the City, there is no meaningful conflict in the evidence between the parties. Relevant Legislation [ 21 ] The parties agree that the applicable limitation for this action is set out in s. 307(1) of The Cities Act , which reads as follows: 307

(1) Notwithstanding The Limitations Act , no action is to be brought against a city for the recovery of damages after the expiration of one year from the time when the damages were sustained , and no action is to be continued unless service of the statement of claim is made within that one-year period . [Emphasis added] [ 22 ] The plaintiff’s position also engages ss. 168 and 169 of the PDA , related to the City’s right to impose, by bylaw, a development levy. These provisions are contained in

Part VIII of the PDA . The definition of “capital cost” is in s. 168 , while the specifically relevant provisions of s. 169 are ss. (1) to (4). They read as follows: 168 In this Part, “capital cost” means the municipality’s estimated cost of providing construction, planning, engineering and legal services that are directly related to the matters for which development levies and servicing agreement fees are established pursuant to sections 169 and 172, as the case may be, but does not include any cost of maintaining roadways, other related infrastructure and public facilities. 169

(1) If a council has adopted an official community plan that authorizes the use of development levies, the council may, by bylaw, establish development levies to recover the capital costs of services and facilities as prescribed in subsections (2) and (3).

(2) If a development does not involve the subdivision of land, a council may impose development levies for the purpose of recovering all or a part of the municipality’s capital costs of providing, altering, expanding or upgrading the following services and facilities associated, directly or indirectly, with a proposed development : (

a) sewage, water or drainage works; (

b) roadways and related infrastructure; (

c) parks; (

d) recreational facilities.

(2.1) If the subdivision of land is involved, development levies must not be used as a substitute for servicing agreement fees.

(3) The development levy bylaw shall only permit development levies to be imposed if the municipality will incur additional capital costs as a result of the proposed development .

(4) The levies in the development levy bylaw must be based on: (

a) a study or studies that determine the capital costs of municipal servicing and recreational requirements that service the area for which the levy is applied; and (

b) consideration by council of future land use patterns and development and the phasing of public works. [Emphasis added] [ 23 ] Although it does not directly inform the limitation pleaded by the City, I am satisfied that the Court must also be mindful of s. 6 of The Limitations Act , SS 2004, c L-16.1 . As will be discussed later in this fiat, s. 6 is a codification of the common law discoverability rule. It reads as follows: 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 onwhich the claim is based took place, unless the contrary is proved. Positions of the Parties [24] The City maintains that the damages the plaintiff alleges could only have been sustained when it completedpayment of the offsite levy charges on September 3, 2020. It follows, according to the City, that the one-year limitation expired bySeptember 3, 2021, twelve days before the claim was issued and fourteen days before it was served. [25] The plaintiff raises two arguments in response to the City’s application.

First, it contends that the one-yearlimitation did not start until June 15, 2021, which is the date that the City refused the plaintiff’s demand for return of the paid offsitelevy charges.

The plaintiff contends that the City’s liability was not fully discovered until that date. [26] In the alternative, the plaintiff contends that its claim against the City remains undiscoverable in that the Cityhas never proved, or otherwise disclosed, the capital costs incurred from the subdivision. [27] Finally, the plaintiff relies on recent authority from the Saskatchewan Court of Appeal which, in the plaintiff’sview, suggests that the commencement of an action after the expiry of the relevant limitation does not constitute an abuse of the processof the Court.

Law Limitation in s. 307(1) of The Cities Act and Discoverability [28] The limitation set out in s. 307(1) of The Cities Act is specific in the sense that it applies notwithstanding TheLimitations Act. By virtue of s. 3(4) of The Limitations Act, that statute cannot apply to the limitation described in The Cities Act.

Thisnon-application would also apply, at least in theory, to s. 6 of The Limitations Act, which describes the application of the “discoverabilityrule”. [29] Having said the above, it must be remembered that before the enactment of The Limitations Act, thediscoverability rule had become part of the common law in Canada. This is reflected in the Supreme Court of Canada judgments inCentral Trust Co. v Rafuse, (SCC), [1986] 2 SCR 147, and Kamloops (City) v Nielsen, (SCC), [1984] 2SCR 2. There, the Court adopted discoverability in the

interpretation of most statutory limitation provisions. Later, in Grant ThorntonLLP v New Brunswick, 2021 SCC 31 at paras 28-29 [Grant Thornton], the concept of discoverability came to be known as the “commonlaw rule of discoverability” and the “common law discoverability rule”. [30] Importantly, at paragraph 35 of Grant Thornton, Moldaver J. observed that the legislatures in Ontario, Alberta,Saskatchewan and New Brunswick had codified the common law discoverability rule by incorporating it in their respective limitationsstatutes. In Saskatchewan, this codification is reflected in s. 6 of The Limitations Act.

See: Stephens v MLT Aikins LLP, 2021 SKQB 323at para 103, 75 CPC (8th) 117, and Jardine v Saskatoon Police Service, 2017 SKQB 217 at para 36. [31] In my view, it necessarily follows that while s. 6 of The Limitations Act may not directly apply to theinterpretation of s. 307(1) of The Cities Act, its description of the common law discoverability rule provides guidance.

As such, it servesas an interpretive tool for consideration of the limitation engaged here. [32] As to the content of the discoverability rule, whether by statute or common law, the judgment in Grant Thorntonspecifically addressed the degree of knowledge required for the discovery of a claim at paragraphs 41 to 48. I summarized that analysisin Stephens v MLT Aikins LLP, at paras 104-109. For the purpose of this case, I think the following analysis is apt and more concise: a.

A claim will be sufficiently discovered “when a plaintiff has knowledge, actual or constructive, of the material facts upon which aplausible inference of liability on the defendant’s

part can be drawn.” See Grant Thornton, para 42. As this phrase indicates, discoveryengages three considerations: i. the “material facts” about which a claimant must have actual or constructive knowledge; ii. the “state of knowledge” required; and iii. the test for determining a “plausible inference of liability”. b. The “material facts” simply consist of the sets of facts that define discoverability as described in the now codified common lawdiscoverability. See Grant Thornton, para 43. These sets of facts consist of: i. that the injury, loss or damage had occurred; ii. 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 theclaim; iii. 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 iv. that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it. c. To determine the state of knowledge required to show a claim or cause of action is discovered, a court can consider both directand circumstantial evidence to assess the existence of actual or constructive knowledge.

Constructive knowledge will be found where thematerial facts ought to have been discovered by the exercising of “reasonable diligence”, which exercise may be triggered by thepresence of a suspicion. See Grant Thornton, para 44.

d. The question whether the actual or constructive knowledge of the material supports a “plausible inference of liability” depends onwhether the knowledge “is more than mere suspicion or speculation” such that the plaintiff can reasonably be expected to know theclaim exists. See Grant Thornton, paras 45-46. Abuse of Process [33] For the purposes of this application, the relevant parts of Rule 7-9 read as follows: 7-9(1) If the circumstances warrant and one or more conditions pursuant to subrule (2) apply, the Court may order one or more of thefollowing: (

a) that all or any part of a pleading or other document be struck out; (

b) that a pleading or other document be amended or set aside; (

c) that a judgment or an order be entered; (

d) that the proceeding be stayed or dismissed.

(2) The conditions for an order pursuant to subrule (1) are that the pleading or other document: … (

e) is otherwise an abuse of process of the Court. [34] In Saskatchewan, the question as to what constitutes an abuse of process, as opposed to an arguable litigationposition, has recently attracted attention from the Saskatchewan Court of Appeal. I refer to such decisions as GHC Swift Current RealtyInc. v BACZ Engineering

(2004) Ltd., 2022 SKCA 38 [GHC], rev’g in

part 2020 SKQB 161; Nelson v Teva Canada Limited, 2021SKCA 171 [Nelson], rev’g 2020 SKQB 159; Walker v Mitchell, 2020 SKCA 127, [2021] 4 WWR 555 [Walker]; Harpold vSaskatchewan (Corrections and Policing), 2020 SKCA 98; and Campbell v Cooper, 2017 SKCA 55 [Campbell], aff’g 2016 SKQB 251,22 ETR (4th) 37. Three of these decisions addressed abuse of process in the context of assertions that the claims were statute barred bylimitation periods. [35] As observed in Walker, the doctrine of abuse of process has had a lengthy history in Canadian law. It focusesgenerally on the integrity of the judicial process.

In Toronto (City) v C.U.P.E., Local 79, 2003 SCC 63 at para 37, [2003] 3 SCR 77,Arbour J. addressed the doctrine in the context of a court’s inherent power to prevent misuse of its procedure. In this respect, she wrotethe following: [37] In the context that interests us here, the doctrine of abuse of process engages “the inherent power of the court to prevent themisuse of its procedure, in a way that would ... bring the administration of justice into disrepute” (Canam Enterprises Inc. v. Coles(2000), (ON CA), 51 O.R. (3d) 481 (Ont.

C.A.), at para. 55, per Goudge J.A., dissenting (approved [2002] 3 S.C.R.307, 2002 SCC 63 (S.C.C.))). Goudge J.A. expanded on that concept in the following terms, at paras. 55-56: The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that wouldbe manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. Itis a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel.

See House of Spring Gardens Ltd. v.Waite, [1990] 3 W.L.R. 347 at p. 358, [1990] 2 All E.R. 990 (C.A.). One circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence anattempt to relitigate a claim which the court has already determined. [Emphasis in the original] … [36] It has long been understood that an abuse of process can be found only where it is “plain and obvious” to be so.It should not easily be found in cases with lengthy and complex issues, novel causes of action or arguably strong defences.

See Hunt vCarey Canada Inc., (SCC), [1990] 2 SCR 959 at 980, and Nelson at para 4. [37] There are instances where a strong defence, and the facts that support it, will bespeak an abuse of process.Conversely, there are also instances where a strong defence is only that, revealing nothing about the capacity of the claim to misuse thecourt’s process or to bring the administration of justice into disrepute. The difference between the two is not always obvious. [38] Abuse of process applications over allegedly expired limitation periods may exemplify this.

In this regard, threeof the above cited cases deserve attention. As I read them, they suggest that the outcome of such an application will turn on whether theplaintiff knew the claim is statute barred when the claim is issued. [39] In Campbell, the plaintiffs were beneficiaries to farmland from an estate. Although they received transfer of theland in 1990, the plaintiffs issued a statement of claim in 2011, claiming that the defendant executor of the estate was tardy in effectingthe transfer 21 years earlier.

Keene J. found that the applicable limitation under the former legislation expired 14 years before theplaintiffs issued their claim. More importantly, he also found, at paragraph 17, that the plaintiffs were aware of their alleged cause ofaction years before the limitation expired. Aside from supporting

summary judgment in favour of the defendant, the circumstancessuggested that the claim amounted to an abuse of process. The appeal from this decision was dismissed. [40] The question of prior knowledge also featured prominently in Walker. In that case, the plaintiff sued his formerlawyer over advice received when he purchased a house with his own cash. He alleged that the defendant negligently advised him aboutthe enforceability of an oral agreement with his spouse. That agreement purportedly limited the spouse’s right to an interest in the family

home in the event of separation. According to the statement of claim, the plaintiff relied on this advice. Later, when the plaintiff and his spouse separated, it became apparent that the agreement was of little or no assistance to him. The plaintiff sued his former lawyer but did so more than two years after he had discussed his complaint with another lawyer in the defendant’s firm. [ 41 ] Positing that the claim was statute barred, the defendant applied to strike the statement of claim as an abuse of process.

In an unreported fiat ( Walker v Mitchell (8 January 2020) Saskatoon, QBG-SA-1928-2017 (Sask QB)), the chambers judge allowed the application and struck the claim. His decision was affirmed on appeal. In the Court of Appeal decision, the Court cited the decision in Campbell .

It also noted, at paragraph 25, the chambers judge’s finding of fact “that the plaintiff had knowledge of all the facts that would cause the plaintiff’s claim to be statute barred ….” In the Court’s view, this conclusion supported the finding of an abuse of process. [ 42 ] Before going further, I think it is important to note that the “knowledge” about an action being statute barred, as referenced in both Campbell and Walker , refers only to awareness of all the relevant facts – not awareness of the law pertaining to the limitation. [ 43 ] The Court of Appeal decision in GHC , which the plaintiff relies on here, exemplifies a contrast from the decisions in Campbell and Walker .

That said, I am satisfied that the contrast applies only to the facts of the case – not the law. In GHC , the owner of a recently constructed care home commenced an action against three contractors, alleging breaches of contract and negligence in certain aspects of their work. Each defendant posited that the claims were statute barred and applied for orders striking the claims as an abuse of process or to enter

summary judgment accordingly. The evidence presented in the application disclosed differing perspectives on the discoverability of the claim against two of the defendants, who had tried to remedy the deficiencies after their discovery. Even so, the chambers judge struck the action in its entirety against all defendants. [ 44 ] On appeal, the decision was reversed insofar as it pertained to those two defendants. Speaking for the Court, Kalmakoff J.A. said that the evidence deposed by the plaintiff’s officer raised an arguable point about when the claim was discovered against the two defendants.

It necessarily followed that an abuse of process was not “plain and obvious”. [ 45 ] In the context of the language used in Walker , another way of looking at the decision in GHC is that the evidence in the latter case did not make it plain and obvious “that the plaintiff had knowledge of all the facts that would cause the plaintiff’s claim to be statute barred”. In this respect, the case focused on the absence of plain and obvious knowledge – not simply the question whether the limitation had expired before the plaintiff issued the claim.

Analysis [ 46 ] I will begin the analysis with the discussion of the plaintiff’s position on discoverability. As mentioned, the plaintiff advances two arguments on discoverability. The first is that the claim against the City was not discoverable until June 15, 2021, when the City refused the plaintiff’s demand for return of the offsite levy charges. The second argument is that discoverability could not occur until the City proved that it incurred capital costs from the subdivision.

As the costs remain unproved, the plaintiff says the claim remains undiscoverable and the one-year limitation has not yet run. [ 47 ] Both arguments are without merit. They are premised on a seriously flawed understanding of the concept of discoverability and the depth of knowledge necessary to find a claim discoverable. In this context, the second argument is particularly absurd.

It essentially suggests that the plaintiff issued a statement of claim for causes of action it had sufficient awareness to assert – but could not discover. [ 48 ] The plaintiff’s misunderstanding of discoverability stems from confusion about what is to be discovered. Discoverability does not pertain to discovery of material facts upon which one can conclusively or unequivocally determine liability.

Rather, and as articulated in Grant Thornton , it pertains to discovery that is sufficient to draw a “plausible inference of liability” – or knowledge that is sufficient to support something more than “mere suspicion or speculation”. In this regard, “it is well established that a plaintiff does not need to know the exact extent or type of harm it has suffered, or the precise cause of its injury, in order for a limitation to run”. See Grant Thornton , para 46 . [ 49 ] The discoverability of the plaintiff’s claim in the present case is straightforward. Drawing on the indicia of discoverability in s. 6(1) (

a) to (

d) of The Limitations Act , the statement of claim and the evidence in this application discloses the following: a. the plaintiff knew, no later than September 3, 2020, that it had paid the offsite levy charges, which charges now inform the quantum of its claim for damages; b. the plaintiff knew that the payment of the offsite levy charges was caused or contributed to by the City insisting on the payment as a pre-condition for its approval of the subdivision for the condominium development; and c. before it paid the offsite levy charges, the plaintiff had formed the view that the City’s imposition of the charges was contrary to the PDA .

I am satisfied that the above facts are disclosed without resort to the presumption described in s. 6(2) of The Limitations Act . Even so, without this finding, there is little doubt that the presumption would apply. I find no evidence to contradict the presumption. [ 50 ] From the foregoing, I am satisfied that the plaintiff’s actual knowledge of the material facts was such that its claim against the City was discoverable no later than September 3, 2020. Accordingly, the one-year limitation in s. 307(1) of The Cities Act had clearly expired before the plaintiff issued and served its statement of claim.

It necessarily follows that the plaintiff’s action is statute barred. [ 51 ] Turning to whether this statute barred action amounts to an abuse of the process of the Court, I am persuaded it

does. The circumstances here are not like those in GHC , where the parties presented conflicting evidence on discoverability. Here, any conflict on discoverability pertained only to questions of law, not questions of fact. To employ the language applied in Walker , the evidence here clearly showed that Mr. Jacek “had knowledge of all the facts that would cause the plaintiff’s claim to be statute barred”. Indeed, I find that Mr. Jacek’s evidence goes a long way to establishing this knowledge, perhaps more so than the affidavit evidence filed by the City.

Conclusion [ 52 ] In the result, the City’s application is allowed. An order shall issue striking the plaintiff’s statement of claim as an abuse of the process of the Court. The City also asked for an order to postpone the mandatory mediation pursuant to s. 42(1.2) of The Queen’s Bench Act, 1998 , SS 1998, c Q-1.01 . That direction shall be included in the order. [ 53 ] As for costs, the City shall have its taxable costs according to Column 2 of the Tariff of Costs. “R.W. Elson” J. R.W. ELSON