2013 ONSC 4481, 2013 ONSC 4481

CITATION: 2013 ONSC 4481 OSHAWA COURT FILE NO.: 79266/12 DATE: 2013-06-28 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Uton Anthony Moodie v. Rayon Alanzo Moodie BEFORE: Madam Justice J.E. Ferguson HEARD: June 25, 2013 COUNSEL: Self-represented Plaintiff; Evan Moore, for the Defendant E N D O R S E M E N T [1] This is a motion by the defendant brought pursuant to Rule 20 of the Rules of Civil Procedure for

(1) summary judgmentdismissing the plaintiff’s action in its entirety on the ground that there is no genuine issue requiring a trial based on the expiration of thelimitation period and the doctrine of estoppel, alternatively (2) partial

summary judgment as it relates to the sale of the property belowfair market value and the loss of rental income. [2] This action was commenced by the plaintiff on July 12, 2012 under Simplified Procedures. He seeks damages relating tothe sale of the property municipally known as 39 Calmist Crescent, Brampton (“the property”), including (

a) recovery of funds from aline of credit secured by the property; (

b) the difference between the sale price and its fair market value; (

c) loss of rental income and (d)special damages. The property was originally owned by the parents of the parties. Because of financing problems at one point thedefendant held it in trust for the plaintiff. I am not going to set out the extensive back and forth of the property. It is set out in the movingparties’ materials. [3] The parties are brothers. After their relationship deteriorated and the plaintiff was away and unavailable on June 2, 2010,the defendant (the sole registered owner of the property) entered into an agreement of purchase and sale to sell the property which was toclose on June 30, 2010.

Because the plaintiff had filed a notice in January of 2010 claiming an interest in title to the property, thetransaction could not close. [4] When the plaintiff would not consent to lifting the notice, the defendant commenced an emergency application in theBrampton Superior Court seeking to have the notice discharged and the property sold pursuant to the terms of the agreement. [5] That application was settled on July 7, 2010 on certain terms including the removal of the notice by the plaintiff; the saleof the property; the proceeds used to pay off all encumbrances; providing the plaintiff with time to obtain new financing; and a consentorder if the plaintiff did not take certain steps in a certain period of time. [6] When the required steps were not taken by the plaintiff, the consent order was taken out on July 13, 2010.

The propertywas sold for the price agreed upon by the parties in the Minutes of Settlement. [7] Rule 20.042 of the Rules of Civil Procedure provides that where the court is satisfied there is no genuine issue requiring atrial, it shall grant

summary judgment. [8] The onus is on the moving party to establish that there is no genuine issue requiring a trial. Once this onus is satisfied it isthen the responsibility of the responding par5ty to present by way of affidavit and documentary evidence specific facts demonstratingthat there is, in fact, a genuine issue requiring a trial. Dawson v. Rexcraft Storage and Warehouse Inc. (ON CA),[1998], O.J. No. 3240. [9] The Court of Appeal in Combined Air Mechanical Services v. Flech 2011 ONCA 764 , [2011], O.J. No. 5431 setsout the threshold test to be applied on

summary judgment motions. The threshold issue that must be considered is whether the fullappreciation of the evidence and issues required to make a dispositive finding can be achieved by way of

summary judgment. [10] By signing the Minutes of Settlement, the plaintiff agreed to and acquiesced with the sale of the property at the price forwhich it sold. He agreed that all encumbrances were to be paid off. That includes the line of credit. He is estopped from bringing hisaction claiming basically an improvident sale of the property and for recovery of funds from a line of credit secured by the property. Thatleaves the loss of rents and some bald claim for an undisclosed amount of special damages. [11] The defendant submits that this action is also barred by the expiration of the limitation period.

The discoverability rule hasnot been pleaded by the plaintiff and does therefore not apply. [12] The plaintiff’s action was commenced on July 12, 2012. Minutes of Settlement were signed on July 7, 2010 and referred tothe sale price for the amount it was eventually sold. The plaintiff now claims the sale was below market value. As at the date of theMinutes of Settlement, the plaintiff knew that the property would be sold and any rental income would be lost. The limitation period forthis claim expired prior to the commencement of the action.

Upon a finding that the applicable limitation period has expired (as in this

case), an action must be struck as disclosing no reasonable cause of action ( Sedore v. Fleming [2010], O.J. No. 1303 ). [ 13 ]

Summary judgment is granted with respect to the entire claim. [ 14 ] If the parties cannot agree on costs, they can provide brief written submissions by August 15, 2013. Madam Justice J.E. Ferguson DATE RELEASED: June 28, 2013