Longo v. MacLaren Art Centre,

• Jurisdiction: Ontario
• Judge: Feldman, Rouleau and Hourigan, JJ.A.
• Neutral Citation: 2014 ONCA 526
• Citation: (2014), 323 O.A.C. 246 (CA),2014 ONCA 526,[2014] OJ No 3242 (QL),323 OAC 246,323 O.A.C. 246,[2014] O.J. No 3242 (QL),(2014), 323 OAC 246 (CA)
• Date: 03 April 2014
• Court: Court of Appeal (Ontario)

Longo v. MacLaren Art Centre (2014), 323 O.A.C. 246 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. JL.018

James Longo and Molly Longo and Dino Deluca and Grant Vogeli and Celia Martin, Martin Johnson and Geoffrey Goad (plaintiffs/appellants) v. MacLaren Art Centre (defendant/respondent)

(C58003; 2014 ONCA 526)

Indexed As: Longo et al. v. MacLaren Art Centre

Ontario Court of Appeal

Feldman, Rouleau and Hourigan, JJ.A.

July 8, 2014.

Summary:

The plaintiffs owned a plaster sculpture, entitled Walking Man, which they loaned to the MacLaren Art Centre (MacLaren). The sculpture was attributed to Auguste Rodin. The plaintiffs sued MacLaren for Walking Man's destruction. MacLaren counterclaimed for storage costs. MacLaren moved for summary judgment, submitting that the claim should be dismissed because the plaintiffs had not established liability on MacLaren's part or that the plaintiffs had suffered damages, and the claim was statute barred. MacLaren also sought judgment on its counterclaim.

The Ontario Superior Court granted the motion for summary judgment on the basis that the claim was statute barred, and granted judgment on the counterclaim. The plaintiffs appealed.

The Ontario Court of Appeal allowed the appeal. The court set aside the motion judge's order dismissing the plaintiffs' action and awarding MacLaren judgment on its counterclaim. The court awarded the plaintiffs $10,000 costs of the appeal and costs of the summary judgment motion on a scale and in an amount to be agreed upon by the parties, or failing agreement, to be fixed by the motion judge.

Limitation of Actions - Topic 15

General principles - Discoverability rule - Application of - [See Practice - Topic 5702 ].

Limitation of Actions - Topic 9305

Postponement of suspension of statute - General - Discoverability rule - [See Practice - Topic 5702 and Practice - Topic 8825.6 ].

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - The plaintiffs owned a plaster sculpture, entitled Walking Man, which they loaned to the MacLaren Art Centre (MacLaren) - The sculpture was attributed to Auguste Rodin - The plaintiffs sued MacLaren for Walking Man's destruction - MacLaren counterclaimed for storage costs - MacLaren moved for summary judgment, submitting that the claim should be dismissed because the plaintiffs had not established liability on MacLaren's part or that the plaintiffs had suffered damages, and the claim was statute barred - MacLaren also sought judgment on its counterclaim - The motion judge granted summary judgment on the basis that the claim was statute barred, and granted judgment on the counterclaim - The plaintiffs appealed - The Ontario Court of Appeal allowed the appeal - While the question could only be properly determined at trial, the court's view was that a reasonable person, aware that concerns had been raised respecting Walking Man's condition, would have arranged for an inspection of the sculpture - Based on the evidence on the motion, that is what the plaintiffs did and there was no suggestion that they were dilatory in arranging that inspection - There was also no evidence on the motion that the damage was so obvious and well known that an inspection was unnecessary - The plaintiffs needed to know if this was a conditioning problem or something more substantial - No doubt the information they gleaned regarding the extent of the damage would also help to determine whom, if anyone, might be responsible for it - The motion judge erred in finding that the cause of action arose before the plaintiffs had inspected Walking Man in January 2008 - The root of that error was his finding that the plaintiffs had been made aware of the damage to Walking Man in a September 2007 phone call - The fact that one plaintiff was an experienced litigator did not affect the analysis - He issued the statement of claim before the limitation period expired as he was required to do - On the counterclaim, the motion judge simply awarded judgment - There was no analysis in his endorsement regarding the conflicting evidence or any factual findings - Meaningful appellate review of the decision on the counterclaim was not possible.

Practice - Topic 8817

Appeals - General principles - Duty of appellate court where trial judge fails to give or gives inadequate reasons for judgment - [See Practice - Topic 5702 ].

Practice - Topic 8825.6

Appeals - General principles - Duty of appellate court on reviewing summary judgment decisions - Defendants were granted summary judgment - The plaintiffs appealed, submitting that the motion judge erred in finding that the requirements of s. 5(1) of the Limitations Act were satisfied more than two years before the statement of claim was issued - The Ontario Court of Appeal noted that the Supreme Court of Canada had concluded that the exercise of powers under the new summary judgment rule attracted deference - The question of whether a limitation period had expired before a statement of claim was issued was a question of mixed fact and law - Thus, the issue for determination on the appeal was whether the motion judge made a palpable and overriding error in concluding that the claim was statute barred - A palpable and overriding error was an obvious error that was sufficiently significant to vitiate the challenged finding of fact - The appellant had to show that the error went to the root of the challenged finding of fact such that the fact could not safely stand in the face of the error - See paragraphs 37 to 39.

Cases Noticed:

Hryniak v. Mauldin (2014), 453 N.R. 51; 314 O.A.C. 1; 2014 SCC 7, appld. [para. 37].

Waxman et al. v. Waxman et al. (2004), 186 O.A.C. 201 (C.A.), leave to appeal refused (2005), 339 N.R. 200; 207 O.A.C. 400 (S.C.C.), refd to. [para. 39].

Soper et al. v. Southcott et al. (1998), 111 O.A.C. 339; 39 O.R.(3d) 737 (C.A.), refd to. [para. 42].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 63].

Crudo Creative Inc. v. Marin (2007), 234 O.A.C. 303; 90 O.R.(3d) 213 (Div. Ct.), refd to. [para. 63].

Barbieri v. Mastronardi et al., [2014] O.A.C. Uned. 383; 2014 ONCA 416, refd to. [para. 63].

Statutes Noticed:

Limitations Act, S.O. 2002, c. 24, Schedule B, sect. 5(1) [para. 40].

Counsel:

John J. Adair, for the appellants;

Arnold B. Schwisberg, for the respondent.

This appeal was heard on April 3, 2014, by Feldman, Rouleau and Hourigan, JJ.A., of the Ontario Court of Appeal. Hourigan, J.A., delivered the following decision for the court on July 8, 2014.