Riverside Realty & Construction Ltd. et al. v. Winnipeg (City), (2015) 314 Man.R.(2d) 246 (QB)

• Judge: Simonsen, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: January 28, 2015
• Jurisdiction: Manitoba
• Citations: (2015), 314 Man.R.(2d) 246 (QB);2015 MBQB 20

Riverside Realty v. Winnipeg (2015), 314 Man.R.(2d) 246 (QB)

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. FE.017

Riverside Realty & Construction Ltd., Araway Ltd., D.W.E. Holdings Limited and Joy Ventures Ltd. (plaintiffs) v. The City of Winnipeg (defendant)

(CI 04-01-40241; 2015 MBQB 20)

Indexed As: Riverside Realty & Construction Ltd. et al. v. Winnipeg (City)

Manitoba Court of Queen's Bench

Winnipeg Centre

Simonsen, J.

January 28, 2015.

Summary:

The plaintiffs were real estate developers. They sought summary judgment for the return of monies and letters of credit ("the monies") they provided to the defendant ("the City") for road construction in an area of Winnipeg. Their essential complaint was that the City continued to hold the monies and, for several decades, had not used them for the road construction purposes for which they were intended. The plaintiffs sought judgment on the grounds that: the monies were paid pursuant to a 1986 resolution of the City Council which was ultra vires; and the City had been unjustly enriched by the receipt and retention of the monies without justification.

The Manitoba Court of Queen's Bench dismissed the plaintiff's action. The court held that: (1) the resolution was intra vires; and (2) the plaintiffs' claim for return of the monies on the basis of unjust enrichment was statute-barred by the passage of time. Further, the court could also have decided, based on the evidence, that the claim for unjust enrichment failed on its merits.

Limitation of Actions - Topic 15

General principles - Discoverability rule - Application of - [See Limitation of Actions - Topic 6223 ].

Limitation of Actions - Topic 6223

Restitution - Unjust enrichment - Commencement of limitation period - The plaintiff real estate developers sought summary judgment for the return of monies and letters of credit ("the monies") they had provided to the defendant City for road construction in an area of Winnipeg pursuant to a 1986 resolution of the City Council - Their essential complaint was that the City continued to hold the monies and, for several decades, had not used them for the road construction purposes for which they were intended - They asserted, inter alia, that the City had been unjustly enriched by the receipt and retention of the monies without justification - The Manitoba Court of Queen's Bench held that the unjust enrichment claim was statute-barred (six year limit) - The court found that the plaintiffs discovered the cause of action in unjust enrichment once they had executed the development agreements and paid the monies - The last development agreement entered into between any of the plaintiffs and the City was in 1995 and many of them were entered into in the 1980s - The plaintiffs provided the monies to the City at or about the time each development agreement was executed - Further, on March 28, 1996, the City wrote a letter to one of the plaintiffs, and indicated that it would not be completing the work on the proposed roadways within any fixed timeline because the rate of development had not generated sufficient funds - See paragraphs 35 to 46.

Limitation of Actions - Topic 9305

Postponement or suspension of statute - General - Discoverability rule - [See Limitation of Actions - Topic 6223 ].

Municipal Law - Topic 2143

Municipal taxation or levies - Development charges - Authority to impose - The plaintiff real estate developers sought summary judgment for the return of monies and letters of credit ("the monies") they had provided to the defendant City for road construction in an area of Winnipeg - Their essential complaint was that the City continued to hold the monies and, for several decades, had not used them for the road construction purposes for which they were intended - They asserted that the monies were paid pursuant to a 1986 resolution of the City Council which was ultra vires - The Manitoba Court of Queen's Bench held that the resolution was intra vires - The City was not empowered to impose a local improvement levy for the purpose of road construction (City of Winnipeg Act, s. 352(1)) - However, the levy imposed here was, in essence, a development charge, not a local improvement levy - As such, the resolution was properly enacted under s. 637(23)(e)(iii) of the Act - See paragraphs 13 to 34.

Practice - Topic 5705

Judgments and orders - Summary judgments - Requirement that question at issue be beyond doubt - [See Restitution - Topic 702 ].

Restitution - Topic 64

Unjust enrichment - General - Juristic reason for enrichment - On November 26, 1986, City Council passed a resolution requiring all applicants for subdivision in the Charleswood area of Winnipeg to pay a levy for "phased construction of regional transportation facilities" - The resolution provided that the City's Development Agreement Parameters be amended to require that a clause be included in all development agreements for Charleswood - The plaintiff real estate developers sought summary judgment for the return of monies and letters of credit ("the monies") they had provided to the defendant City for road construction in Charleswood pursuant to the resolution - The plaintiffs' essential complaint was that the City continued to hold the monies and, for several decades, had not used them for the road construction purposes for which they were intended - They asserted, inter alia, that the City had been unjustly enriched by the receipt and retention of the monies without justification - The Manitoba Court of Queen's Bench held that the unjust enrichment claim was statute-barred (six year limit) - Alternatively, the claim failed on the evidence because the clause was a juristic reason to deny recovery - The clause justified the City's receipt and retention of the monies at the plaintiffs' expense because it specifically addressed the levy's payment and purpose, the very subject matter of the unjust enrichment claim - See paragraph 47.

Restitution - Topic 702

Benefit acquired from the plaintiff - Recovery of money - Money paid under duress or compulsion - On November 26, 1986, City Council passed a resolution requiring all applicants for subdivision in the Charleswood area of Winnipeg to pay a levy for "phased construction of regional transportation facilities" - The resolution provided that the City's Development Agreement Parameters be amended to require that a clause be included in all development agreements for Charleswood - The plaintiff real estate developers sought summary judgment for the return of monies and letters of credit ("the monies") they had provided to the defendant City for road construction in Charleswood pursuant to the resolution - The plaintiffs' essential complaint was that the City continued to hold the monies and, for several decades, had not used them for the road construction purposes for which they were intended - They asserted, inter alia, that the City had been unjustly enriched by the receipt and retention of the monies without justification - The Manitoba Court of Queen's Bench stated that "Although the City takes the position that a trial is necessary to address the plaintiffs' contention that the clause is void for uncertainty or duress, ... these assertions are very weak, indeed virtually certain to fail. There is no evidence that the plaintiffs were uncertain of the meaning of the clause; and it appears to settle the essentials of the deal between the parties in relation to the levy ... As for whether the clause is void because it was agreed to under duress or compulsion, again there is no evidence upon which to draw this inference. Rather, the plaintiffs, as developers, appear to have entered into the agreements for their own commercial reasons - and there is no suggestion that they have any complaint about the other clauses." - See paragraph 48.

Cases Noticed:

Podkriznik v. Schwede (1990), 64 Man.R.(2d) 199 (C.A.), refd to. [para. 9].

Blanco et al. v. Canada Trust Co. et al. (2003), 173 Man.R.(2d) 247; 293 W.A.C. 247; 2003 MBCA 64, refd to. [para. 9].

Bellboy Corp. v. 3763383 Manitoba Ltd. (2002), 164 Man.R.(2d) 17; 2002 MBQB 69, refd to. [para. 10].

Hryniak v. Mauldin, [2014] 1 S.C.R. 87; 453 N.R. 51; 314 O.A.C. 1; 2014 SCC 7, refd to. [para. 10].

Ryan v. Canadian Farm Insurance Corp. et al. (2014), 309 Man.R.(2d) 286; 2014 MBQB 178, refd to. [para. 10].

Urban Development Institute v. Rockyview No. 44 (Municipal District), [2003] 2 W.W.R. 140; 321 A.R. 253; 2002 ABQB 651, refd to. [para. 15].

United Taxi Drivers' Fellowship of Southern Alberta et al. v. Calgary (City), [2004] 1 S.C.R. 485; 318 N.R. 170; 346 A.R. 4; 320 W.A.C. 4; 2004 SCC 19, refd to. [para. 17].

Catalyst Paper Corp. v. North Cowichan (District), [2012] 1 S.C.R. 5; 425 N.R. 22; 316 B.C.A.C. 1; 537 W.A.C. 1; 2012 SCC 2, refd to. [para. 17].

Columbia Estate Co. v. Burnaby (District) (1974), 49 D.L.R.(3d) 123 (S.C.), refd to. [para. 18].

Campbell et al. v. City of Regina (1969), 6 D.L.R.(3d) 456 (Sask. C.A.), refd to. [para. 24].

Hillier v. Regina (City), [1932] 2 W.W.R. 561 (Sask.), refd to. [para. 24].

Pacific National Investments Ltd. v. Victoria (City), [2004] 3 S.C.R. 575; 327 N.R. 100; 206 B.C.A.C. 99; 338 W.A.C. 99; 2004 SCC 75, refd to. [para. 35].

Elder Advocates of Alberta Society et al. v. Alberta et al., [2011] 2 S.C.R. 261; 416 N.R. 198; 499 A.R. 345; 514 W.A.C. 345; 2011 SCC 24, refd to. [para. 35].

Garland v. Consumers' Gas Co., [2004] 1 S.C.R. 629; 319 N.R. 38; 186 O.A.C. 128; 2004 SCC 25, refd to. [para. 36].

Microcell Communications Inc. v. Frey - see Frey et al. v. BCE Inc. et al.

Frey et al. v. BCE Inc. et al., [2012] 3 W.W.R. 423; 377 Sask.R. 156; 528 W.A.C. 156; 2011 SKCA 136, refd to. [para. 38].

Winnipeg (City) v. Columbus Centennial Centre Inc. et al. (2013), 288 Man.R.(2d) 133; 564 W.A.C. 133; 2013 MBCA 2, refd to. [para. 40].

May and Butcher Ltd. v. The King, [1929] ADR.L.R. 02/22 (H.L.), refd to. [para. 48].

North American Life Assurance Co. v. Pitblado & Hoskin et al. (2003), 174 Man.R.(2d) 234; 2003 MBQB 109 (Q.B.), refd to. [para. 55].

Statutes Noticed:

City of Winnipeg Act, S.M. 1971, c. 105, sect. 352(1)(a) [para. 21]; sect. 637(23)(e)(iii), sect. 637.1(a), sect. 637.1(b) [para. 22].

Authors and Works Noticed:

Rogers, Ian MacF., The Law of Canadian Municipal Corporations (2nd Ed. 2009), vol. 2, §§ 63.11 [para. 13]; 138.5.1 [para. 32]; 193.31 [para. 19].

Counsel:

Arthur J. Stacey and Matthew D. Dalloo, for the plaintiffs;

Denise A.M. Pambrun, for the defendant.

This summary judgment application was heard by Simonsen, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following decision on January 28, 2015.