Nexus Holdings Inc. Appellant (Plaintiff) v. City of Saskatoon, 2023 SKCA 126

Court of Appeal for Saskatchewan Docket: CACV4148 Citation: Nexus Holdings Inc. v City of Saskatoon , 2023 SKCA 126 Date: 2023-11-14 Between: Nexus Holdings Inc. Appellant (Plaintiff) And City of Saskatoon Respondent (Defendant) Before: Leurer C.J.S., Caldwell J.A. and Dawson J. (ad hoc) Disposition: Appeal dismissed (orally) Written reasons by: The Honourable Mr.

Justice Caldwell In concurrence: The Honourable Chief Justice Leurer The Honourable Madam Justice Dawson (ad hoc) On appeal from: 2023 SKKB 6 , Saskatoon Appeal heard: November 14, 2023 Counsel: Jay Watson for the Appellant Alan Rankine for the Respondent Caldwell J.A. [ 1 ] In this appeal, Nexus Holdings Inc. [Nexus] sought to set aside the decision of a Court of King’s Bench Chambers judge striking the statement of its claims against the City of Saskatoon [City] under Rule 7-9(2)(

e) of the King’s Bench Rules as an abuse of process (see Nexus Holdings Inc. v City of Saskatoon , 2023 SKKB 6 [ Decision ]). We dismissed the appeal from the bench, advising that these written reasons would follow. [ 2 ] In its claim, Nexus alleged that the City was unjustly enriched, had breached an implied contract and had breached The Planning and Development Act, 2007 , SS 2007, c P-13.2 , when it required Nexus to pay offsite levies as a condition of approving the subdivision of a property Nexus owned.

As the foundation for its claim, Nexus asserted that the City lacked authority to impose such a levy in circumstances where the City will not incur new capital costs as a result of the development of a property. [ 3 ] Nexus paid the levies on September 2, 2020, and filed its statement of claim on September 13, 2021. It served its claim on the City on September 17, 2021.

Under s. 307(1) of The Cities Act , SS 2002, c C-11.1 “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.” Nexus and the City agree that if Nexus’ claim was discoverable by on or before September 12, 2020, then its action is time-barred. [ 4 ] The Chambers judge found that Nexus’s “actual knowledge of the material facts was such that its claim against the City was discoverable no later than September 3, 2020” ( Decision at para 50).

On this basis, he concluded that it was plain and obvious that Nexus knew that its claims were statute-barred when it filed its statement of claim and that the claims were, therefore, an abuse of process. [ 5 ] In this appeal, Nexus took no issue with the use by the Chambers judge of the authority given to him under Rule 7-9(2)(

e) to decide the limitations question or with the legal principles that he employed to do so. For this reason, we offer no comment on those matters. Nexus narrowly alleged that the Chambers judge erred in law and fact by misapplying the law of discoverability in the context of limitation periods when he concluded that the one-year limitation period had expired on September 3, 2021.

Every argument advanced by Nexus in this appeal was directly tied to its contention that the Chambers judge erred when he found that Nexus had sufficient facts to justify the commencement of a claim against the City as of September 2, 2020. [ 6 ] As the Chambers judge understood, the principles of discoverability do not require a plaintiff to appreciate or have an awareness of all the facts that are necessary to prove a claim.

It is sufficient that a plaintiff has enough actual or constructive knowledge of the material facts to draw a “plausible inference of liability” on the part of a defendant ( Grant Thorton LLP v New Brunswick , 2021 SCC 31 at paras 42–46 , 461 DLR (4th) 613 [ Grant Thorton ]). [ 7 ] Taking Grant Thorton into account in our review of the record, we were unable to see palpable and overriding error in the Chambers judge’s finding that a March 12, 2020, email from Nexus to the City, and a June 1, 2020, letter from the City to Nexus’ surveyor, established that Nexus had knowledge of the material facts necessary to draw a plausible inference of liability on the City’s part for the claims Nexus later pleaded in its statement of claim.

Put another way, we could not accede to Nexus’ allegations of error in the Chambers judge’s conclusions that its claim “was discoverable no later than September 3, 2020”, and that Nexus “had knowledge of all the facts that would cause [its] claim to be statute barred” ( Decision at paras 50 and 51). [ 8 ] Accordingly, we dismissed the appeal with costs to the City, calculated in the usual manner. “Caldwell J.A.” Caldwell J.A. I concur. “Leurer C.J.S.” Leurer C.J.S.

I concur. “Dawson J.” Dawson J. (ad hoc)