Smith v. Parkland Investments Limited

Smith v. Parkland Investments Limited Court Supreme Court Date 2019-02-27 Citation 2019 NSSC 74 Docket Tru. No. 266814 Judge/Registrar/Adjudicator Jamieson, Darlene (Honourable Justice) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia Citation: Smith v. Parkland Investments Limited, 2019 NSSC 74 Date: 20190227 Docket: Tru. No. 266814 Registry: Truro Between: Dr. Diane Smith Plaintiff and Parkland Investments Limited and Chesswood Developments Limited and The Town of Truro Defendants and ACL Construction Limited, J.M. Forest Logistics 2003 Inc. and John MacLellan Third Parties and SUPREME COURT OF Nova Scotia Between: Chesswood Developments Limited Plaintiff and M.E.C. Engineering & Construction Services Limited Defendant DECISION Judge: The Honourable Justice Darlene Jamieson Heard: January 22, 2019 in Truro, Nova Scotia Written Decision: February 27, 2019 Counsel: Dennis J. James, Q.C., Counsel for Dr. Diane Smith Phillip M. Chapman, Counsel for Chesswood Developments Limited Cory Withrow, Counsel for the Town of Truro Kate Marshall, Counsel for Parkland Developments Inc. Melanie McGrath, Counsel for ACL Construction Limited, J.M. Forest Logistics 2003 Inc. and John MacLellan Chris Wilson, Counsel for M.E.C. Engineering & Construction Services Limited By the Court: Introduction: [1] This is a motion for summary judgment on the evidence pursuant to Civil Procedure Rule 13.04 brought by the Town of Truro (the Town). Dr. Diane Smith (Dr. Smith) owns the property at 389/395 Pleasant Street in the town of Truro. Her residence is located at 395 Pleasant Street. Chesswood Developments Limited (Chesswood) is the owner of the property at 415 Pleasant Street (the Development) located to the north of the Smith residence and abutting the Smith property line. Parkland Investments Limited (Parkland) developed the Chesswood property constructing two 35-unit apartment buildings, a number of townhouses and a pair of semi-detached homes. [2] Dr. Smith filed an action against Parkland on May 30, 2006. That action was amended on January 7, 2013 adding ACL Construction Limited, J.M. Forest Logistics 2003 Inc. and John MacLellan as Third Parties. A Notice of Intended Action dated April 8, 2013 was served on the Town on April 10, 2013. The action was once again amended on February 11, 2014 adding the Town of Truro and Chesswood as defendants. On October 24, 2018 this action was consolidated with action number Hfx. No. 467542. Both actions are continued under Tru. No. 266814. None of the other parties took a position in this application. [3] The action brought by Dr. Smith against the Town is framed in negligence. Paragraphs 24 and 25 of the Amended Statement of Claim allege the Town was negligent in approving the Development Agreement and inspecting the development and construction by Parkland and Chesswood. Dr. Smith further alleges the Town was negligent in failing to require Chesswood and Parkland to follow the terms of the Development Agreement. Dr. Smith alleges damage to her property, loss of privacy, loss of use and enjoyment of the property and diminution of property value. [4] The Town says there is no genuine issue of material fact requiring a trial because Dr. Smith's claims in negligence against the Town are barred by the 12-month limitation period under the Municipal Government Act, SNS 1998, c. 18 (s. 512(1)). The Town argues the relevant limitation periods applicable to Dr. Smith's claims against the Town expired prior to commencement of Dr. Smith's action against the Town. [5] The Town asserts that even if an equitable extension of an additional four years allowed in the former Limitation of Actions Act, R.S.N.S. 1989, c. 258 is added to the 12-month limitation period the actions are still statute-barred, as the actions were not commenced until more than five years after the date of discoverability. The Town says that the applicable limitation period for Dr. Smith's claims began to run in 2006 or in January of 2009 at the latest and the within action was not filed until February 11, 2014. The Town further asserts the claims for negligent inspection are barred by s. 504(3) of the Municipal Government Act as having been commenced more than six years after the building permit applications were filed. [6] The Town of Truro submits all of the claims made by Dr. Smith against the Town in the Amended Statement of Claim are statute-barred and seeks an order for summary judgment. [7] Dr. Smith states the claims are not barred, as the negligence of the Town was not discoverable until she received the expert report of Mr. Thomas Giovannetti on September 7, 2012. She further says there is continuing negligence on the part of the Town with the Town being negligent so long as it fails to cause the developer to properly manage the subterranean water flow. [8] The parties agree the 12-month limitation period under the Municipal Government Act is a limitation period for purpose of the former Limitation of Actions Act and is subject to the discoverability rule. Evidence on the Motion: [9] In support of the summary judgment motion, the Town filed the affidavits of Jason Fox, Director of Planning & Development for the Town, and a solicitor's affidavit of Mr. Cory Withrow. Mr. Withrow’s affidavit attached excerpts from the discovery examinations of Dr. Smith which took place on August 8 and 29, 2016. [10] In response to the summary judgment motion, Dr. Smith filed an affidavit and a solicitor’s affidavit of Mr. Robert Pineo, former counsel. Dr. Smith’s affidavit sets out the history of the litigation, the timelines for retainer of Mr. Giovannetti and production of his report as well as Dr. Smith's observations on receipt of the report. [11] Dr. Smith was cross -examined. Background: [12] Dr. Smith owns properties at 389 and 395 Pleasant Street in the Town of Truro. They are adjoining properties. Dr. Smith has owned the property since 1997. [13] Chesswood is the owner of the property at 415 Pleasant Street. Parkland is the Developer of the property at 415 Pleasant Street. [14] The Development was to proceed in a phased process with four separate phases of construction. Phase 1 consisted of five, two and one-half storey townhouse units and is adjacent to Phases 2 and 3. Phase 2 consisted of one, three-storey, 35-unit apartment building together with parking spaces for at least 61 vehicles with Phase 2 abutting 395 Pleasant Street and being adjacent to Phases 1, 3 and 4. Phase 3 consisted of a landscaped open space for use by the residents of the Development and seven, two and one-half storey townhouse units. Ultimately Phase 3 was developed with a pair of semi-detached homes and a four-unit townhouse. Phase 4 consisted of one, three-storey, 35-unit apartment building with a parking area for at least 43 developed vehicles. Phase 4 is adjacent to Phase 2 and 3. Phase 3 is adjacent to Phases 1, 2 and 4. Phases 3 and 4 are the furthest away from the Smith property. [15] The only phase of the Development directly bordering the Smith property is Phase 2. [16] With regard to the timelines of development of the Chesswood property, I note the following: • A staff report was prepared November 24, 2005 recommending the Town enter into a Development Agreement with Parkland. • Letters in relation to the Development were sent by the Town to property owners within 230 metres of the Chesswood property, including Dr. Smith on December 5, 2005. • Dr. Smith responded on January 4, 2006 by completing a development application survey. • The final staff report recommending the Development was prepared on January 4, 2006. • On January 9, 2006 Town Council for the Town of Truro approved a Development Agreement between the Town and Parkland concerning development of the Chesswood property. • On January 26, 2006 Dr. Smith filed a Notice of Appeal with regard to the Town's decision to approve the Development. The appeal was withdrawn on February 28, 2006 as a result of a Settlement Agreement being reached between Dr. Smith and Parkland. • The Town and Chesswood entered into a Development Agreement on June 14, 2006. • The application, building permit and occupancy dates for the various phases of the Development are as follows: Phase 1 -TOWNHOUSES Permit application date: June 20, 2006 Building permit date: June 22, 2006 Occupancy permits: June 2, 2008 and June 1, 2009 Phase 2 - 35-UNIT APARTMENT BUILDING Permit application date: March 31, 2006 Work permit foundation only: April 19, 2006 Building permit: June 19, 2006 Occupancy permit: July 7, 2009 Phase 3 -TWO-UNIT BUILDING (permit number 060-2007) Permit application date: April 25, 2007 building permit: May 2, 2007 Occupancy permit: unknown Phase 3 -FOUR-UNIT TOWNHOUSE (permit number 032-2013) Permit application date: April 4, 2013 Building permit: April 5, 2013 Occupancy permit: unknown Phase 4 - 35-UNIT APARTMENT BUILDING Permit application date: May 21, 2010 Building permit: June 8, 2010 Occupancy permit: unknown [17] Dr. Smith had regular contact with representatives of the Town concerning the Parkland Development beginning in 2006 and continuing to at least mid 2009. The following chart sets out some of Dr. Smith’s interactions with the Town and the concerns she was expressing with regard to the Development and its impact on her property at various points in time. Issues [18] The following two main questions must be determined by this Court: 1. What is the test for summary judgment on evidence? 2. Should summary judgment be granted, and Dr. Smith’s claims against the Town be dismissed, because the applicable limitation periods expired before Dr. Smith's action was commenced? Within question 2 are several other questions: (a) What is the source and the length of the limitation periods applicable to Dr. Smith’s claims? (b) When were the facts that may give rise to the causes of action discoverable by Dr. Smith? Analysis The Applicable Law: [19] There is no discretion under Rule 13.04 where a judge is satisfied that there is no genuine issue of material fact, and where the claim or defence does not require determination of a question of law. The Rule states a judge must grant summary judgment. [20] Civil Procedure Rule 13.04 states: 13.04(1) A judge who is satisfied on both of the following must grant summary judgment on a claim or a defence in an action: (a) there is no genuine issue of material fact, whether on its own or mixed with a question of law, for trial of the claim or defence; (b) the claim or defence does not require determination of a question of law, whether on its own or mixed with a question of fact, or the claim or defence requires determination only of a question of law and the judge exercises the discretion provided in this Rule 13.04 to determine the question. 13.04(2) When the absence of a genuine issue of material fact for trial and the absence of a question of law requiring determination are established, summary judgment must be granted without distinction between a claim and a defence and without further inquiry into chances of success. 13.04(3) The judge may grant judgment, dismiss the proceeding, allow a claim, dismiss a claim, or dismiss a defence. 13.04(4) On a motion for summary judgment on evidence, the pleadings serve only to indicate the issues, and the subjects of a genuine issue of material fact and a question of law depend on the evidence presented. 13.04(5) A party who wishes to contest the motion must provide evidence in favour of the party's claim or defence by affidavit filed by the contesting party, affidavit filed by another party, cross-examination, or other means permitted by a judge. 13.04(6) A judge who hears a motion for summary judgment on evidence has discretion to do either of the following: (a) determine a question of law, if there is no genuine issue of material fact for trial; (b) adjourn the hearing of the motion for any just purpose including to permit necessary disclosure, production, discovery, presentation of expert evidence, or collection of other evidence. [21] I also reference Rule 13.05 regarding the time for bringing a motion for summary judgment. In this case a date assignment conference was held where the motion was discussed, and the Court directed this motion to be brought. 13.05(1) A motion for summary judgment on evidence may be made any time after pleadings close and before a date assignment conference is requested, unless a judge directs otherwise. 13.05(2) A judge who conducts a date assignment conference and directs that a motion for summary judgment on evidence may be made must set a deadline by which the motion is to be heard. [22] In Burton Canada Co. v. Coady, 2013 NSCA 95 (N.S. C.A.) the Court commented on the purpose of summary judgment (para. 22) : [22] In my respectful opinion this process has become needlessly complicated and cumbersome. Summary judgment should be just that. Summary. “Summary” is intended to mean quick and effective and less costly and time consuming than a trial. The purpose of summary judgment is to put an end to claims or defences that have no real prospect of success. Such cases are seen by an experienced judge as being doomed to fail. These matters are weeded out to free the system for other cases that deserve to be heard on their merits. That is the objective. Lawyers and judges should apply the Rules to ensure that such an outcome is achieved. [23] Further at para. 87(8), the Court defined “material fact” as a fact that is essential to the claim or defence and “genuine issue” as an issue that arises from or is relevant to the allegations associated with the cause of action, or the defences pleaded. [24] There is no dispute amongst the parties as to the analytical framework to be applied on motions for summary judgment on the evidence pursuant to Rule 13.04. The framework was set out in Shannex Inc. v. Dora Construction Ltd., 2016 NSCA 89, where Fichaud J.A. stated: [34] I interpret the amended Rule 13.04 to pose five sequential questions: First Question: Does the challenged pleading disclose a “genuine issue of material fact”, either pure or mixed with a question of law? [Rules 13.04(1), (2) and (4)] If Yes, it should not be determined by summary judgment. It should either be considered for conversion to an application under Rules 13.08(1)(b) and 6 as discussed below [paras. 37-42] or go to trial. The analysis of this question follows Burton’s first step. A “material fact” is one that would affect the result. A dispute about an incidental fact - i.e., one that would not affect the outcome - will not derail a summary judgment motion: 2420188 Nova Scotia Ltd. v. Hiltz, 2011 NSCA 74 (CanLII), para. 27, adopted by Burton, para. 41, and see also para. 87 (#8). The moving party has the onus to show by evidence there is no genuine issue of material fact. But the judge’s assessment is based on all the evidence from any source. If the pleadings dispute the material facts, and the evidence on the motion fails to negate the existence of a genuine issue of material fact, then the onus bites and the judge answers the first question Yes. [Rules 13.04(4) and (5)] Burton, paras. 85-86, said that, if the responding party reasonably requires time to marshal his evidence, the judge should adjourn the motion for summary judgment. Summary judgment isn’t an ambush. Neither is the adjournment permission to procrastinate. The amended Rule 13.04(6)(b) allows the judge to balance these factors. Second Question: If the answer to #1 is No, then: Does the challenged pleading require the determination of a question of law, either pure, or mixed with a question of fact? If the answers to #1 and #2 are both No, summary judgment “must” issue: Rules 13.04(1) and (2). This would be a nuisance claim with no genuine issue of any kind — whether material fact, law, or mixed fact and law. Third Question: If the answers to #1 and #2 are No and Yes respectively, leaving only an issue of law, then the judge “may” grant or deny summary judgment: Rule 13.04(3). Governing that discretion is the principle in Burton’s second test:” Does the challenged pleading have a real chance of success?” Nothing in the amended Rule 13.04 changes Burton’s test. It is difficult to envisage any other principled standard for a summary judgment. To dismiss summarily, without a full merits analysis, a claim or defence that has a real chance of success at a later trial or application hearing, would be a patently unjust exercise of discretion. It is for the responding party to show a real chance of success. If the answer is no, then summary judgment issues to dismiss the ill-fated pleading. Fourth Question: If the answer to #3 is yes, leaving only an issue of law with a real chance of success, then, under Rule 13.04(6)(a): Should the judge exercise the “discretion” to finally determine the issue of law? If the judge does not exercise this discretion, then: (1) the judge dismisses the motion for summary judgment, and (2) the matter with a “real chance of success” goes onward either to a converted application under Rules 13.08(1)(b) and 6, as discussed below [paras. 37-42] or to trial. If the judge exercises the discretion, he or she determines the full merits of the legal issue once and for all. Then the judge’s conclusion generates issue estoppel, subject to any appeal. This is not the case to catalogue the principles that will govern the judge’s discretion under Rule 13.04(6)(a). Those principles will develop over time. Proportionality criteria, such as those discussed in Hryniak v. Mauldin, 2014 SCC 7 (CanLII), [2014] 1 S.C.R. 87, will play a role. A party who wishes the judge to exercise discretion under Rule 13.04(6)(a) should state that request, with notice to the other party. The judge who, on his or her own motion, intends to exercise the discretion under Rule 13.04(6)(a) should notify the parties that the point is under consideration. Then, after the hearing, the judge’s decision should state whether and why the discretion was exercised. The reasons for this process are obvious: (1) fairness requires that both parties know the ground rules and whether the ruling will generate issue estoppel; (2) the judge’s standard differs between summary mode ("real chance of success") and full-merits mode; (3) the judge’s choice may affect the standard of review on appeal. [35] "Discretion": The judge’s “discretion” under the amended Rule 13.04(6)(a) governs the option whether or not to determine the full merits — i.e. the Fourth Question. I disagree with Mr. Upham’s factum that Rule 13.04(6)(a) gives the judge “unfettered” discretion to just dismiss Shannex’s summary judgment motion. The Civil Procedure Rules do not authorize judges to allow or dismiss summary judgment motions on an unprincipled or arbitrary basis. [36] "Best foot forward": Under the amended Rule, as with the former Rule, the judge’s assessment of issues of fact or mixed fact and law depends on evidence, not just pleaded allegations or speculation from the counsel table. Each party is expected to “put his best foot forward” with evidence and legal submissions on all these questions, including the “genuine issue of material fact”, issue of law, and “real chance of success”: Rules 13.04(4) and (5); Burton, para. 87. . . . [42] Rule 13.08(1) says that a judge who dismisses the motion for summary judgment “must” schedule a hearing to consider conversion or directions. Accordingly, a dismissed motion under Rule 13.04 triggers the supplementary question: Fifth Question: If the motion under Rule 13.04 is dismissed, should the action be converted to an application and, if not, what directions should govern the conduct of the action? [25] In the context of a defendant’s motion for summary judgment based on an expired limitation period, the Nova Scotia Court of Appeal, in Milbury v. Nova Scotia (Attorney General), 2007 NSCA 52, stated as follows at paras. 20 and 23: [20] Did the defendants establish that there are no genuine issues of fact on the question of whether the plaintiff’s action is statute barred because the limitation period has expired? . . . [23] When the defendant pleads a limitation period and proves the facts supporting the expiry of the time period, the plaintiff has the burden of proving that the time has not expired as a result, for example, of the discoverability rule. [citations omitted] [26] The above is consistent with the first question to be answered in the Shannex analysis: Is there a “genuine issue of material fact, either pure or mixed with a question of law”? Should Summary Judgment be granted and Dr. Smiths’ claims against the Town be dismissed because the applicable limitation period expired before Dr. Smith's action was commenced? - Is there a "genuine issue of material fact, either pure or mixed, with a question of law?" [27] The issue for the Court to resolve is whether, pursuant to Civil Procedure Rule 13.04, the Town has met the burden of showing there is no genuine issue of material fact, whether on its own or mixed with questions of law, for trial and that the claim does not require the determination of a question of law. The Rule is clear I must grant summary judgment in the absence of a genuine issue of material fact for trial and when there is an absence of a question of law, either on its own, or mixed with fact, requiring determination. [28] The Town has the onus to show by evidence there is no genuine issue of material fact. As Fichaud, J.A. stated: "Each party is expected to 'put his best foot forward' with evidence and legal submissions on all these questions, including the 'genuine issue of material fact' ...”. [29] Dr. Smith is also required to put her best foot forward. In responding to this motion, she was required to adduce some evidence as to why the limitation period has not expired. What is the applicable limitation period? [30] The Parties agree s. 512(1) of the Municipal Government Act sets out the limitation period of 12 months. It also contains a one-month required Notice of Intended action prior to expiry of the 12-month period. Municipal Government Act. R.S.N.S. 1989, c. 18 512(1) For the purpose of the Limitation of Actions Act, the limitation period for an action or proceeding against a municipality or village, the council, a council member, a village commissioner, an officer or employee of a municipality or village or against any person acting under the authority of any of them, is twelve months. 512(2) Subsection (1) applies, with all necessary changes, to a service commission and a board, commission, authority, agency or corporation of a municipality or a board, commission, authority, agency or corporation jointly owned or established by municipalities or villages. 512(3) No action shall be brought against any parties listed in subsection (1) or (2) unless notice is served on the intended defendant at least one month prior to the commencement of the action stating the cause of action, the name and address of the person intending to sue and the name and address of that person's solicitor or agent, if any. [31] The parties agree that s. 3 of the former Limitation of Actions Act (R.S.N.S. 1989, c. 258) applies in the circumstances of this matter. I, therefore, assume without deciding that s. 3 applies to the present matter. The following are the relevant portions of Section 3: Section 3 (2) Where an action is commenced without regard to a time limitation, and an order has not been made pursuant to subsection (3), the court in which it is brought, upon application, may disallow a defence based on the time limitation and allow the action to proceed if it appears to the court to be equitable having regard to the degree to which (a) the time limitation prejudices the plaintiff or any person whom he represents; and (b) any decision of the court under this Section would prejudice the defendant or any person whom he represents, or any other person. Section 3(4) In making a determination pursuant to subsection (2), the court shall have regard to all the circumstances of the case and in particular to (a) the length of and reasons for the delay on the part of the plaintiff; (b) any information or notice given by the defendant to the plaintiff respecting the time limitation; (c) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought or notice had been given within the time limitation; (d) the conduct of the defendant after the cause of action arose, including the extent if any to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant; (e) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action; (f) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages; (g) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received. Section 3(6) A court shall not exercise the jurisdiction conferred by this Section where the action is commenced or notice given more than four years after the time limitation therefor expired. [32] The claims advanced by Dr. Smith against the Town are set out at paras. 24 and 25 of the Statement of Claim: 24 In approving the Development Agreement and inspecting the development and construction by Parkland and Chesswood, the Town of Truro was negligent. The particulars of the Town’s negligence are as follows: … (a) Approving the Development Agreement without properly accounting for changes to drainage patterns that would be foreseeably caused by the development of the Parkland property; (b) Approving the Development Agreement without ensuring necessary stormwater management infrastructure would be in place; (c) Approving the Development Agreement which allowed for the removal of vegetation and tree cover from the entire land area on the Chesswood property foreseeably leading to increase of surface and subterranean water flow; (d) Approving the removal, in-filling and altering drainage ditches and culverts in place around the Chesswood property without ensuring alternative means of adequate drainage from the Chesswood property; (e) Allowing construction to take place with improper lot grading on the Chesswood property foreseeably leading to increased surface and subsurface water flow; (f) Failing to require Chesswood and Parkland to put in place appropriate foundation and subsurface infrastructure for storm water management and drainage on the Chesswood property including the parking lots and apartment complex buildings; (g) Failing to require appropriate roofing systems for storm water management and drainage on buildings constructed on the Parkland property; (h) Failing to properly implement the development agreement by allowing construction to proceed without requiring tree planting and retaining walls to be in place between the Chesswood property and the Smith property; and, (i) Such further and other negligence as may appear. 25 As a result of the Town's negligence in approving the Development Agreement, negligence in inspecting construction during the development and negligence in failing to require Chesswood and Parkland to follow the terms of the Development Agreement, Dr. Smith has suffered damage… [33] In essence, Dr. Smith’s claims against the Town in negligence are threefold: 1. Negligence in approving the Development Agreement; 2. Negligence in inspecting the development and construction; and 3. Negligence in failing to require Chesswood and Parkland to follow the terms of the Development Agreement. [34] I will address each of the above in turn. (1) Claim of negligence against the Town in approving the Development Agreement: [35] The Development Agreement was approved by the Town Council on January 9, 2006. The Town entered into the Development Agreement with Chesswood on June 14, 2006. [36] In determining when the limitation period began to run, I must consider the discoverability principle. The discoverability principle as set out by LeDain, J. in Central & Eastern Trust v. Rafuse, 1986 CarswellNS 40 (S.CC.) states: 89 I am thus of the view that the judgment of the majority in Kamloops laid down a general rule that a cause of action arises for purposes of a limitation period when the material facts on which it is based have been discovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence, and that that rule should be followed and applied to the appellant’s cause of action in tort against the respondents under the Nova Scotia Statute of Limitations… [37] The Town says the date of discoverability was in 2006, as Dr. Smith was aware the Development had allegedly caused increased water flow onto her property or, at the latest, in January of 2009 when Dr. Smith presented her issues with the Town to the Ombudsman. [38] Dr. Smith asserts it was not until 2012, on receipt of the Giovannetti Report, that she became aware of the negligence of the Town in approving the Development without turning its mind to the potential disruption of the subsurface water tables and the particular vulnerabilities of the property. I find Dr. Smith was sufficiently aware of the Town's role in approving the Development Agreement well before this date as is illustrated by the following events. [39] On January 23, 2006 Dr. Smith appealed the decision of the Town Council to enter into a Development Agreement with Chesswood. The Notice of Appeal, filed by Dr. Smith's legal counsel, Mr. Peter Rogers, states: … the decision of the Council of the Town of Truro to enter into the Development Agreement relating to 415 Pleasant street in Truro, Nova Scotia is not reasonably consistent with the Town of Truro Municipal Planning strategy, including but not limited to the Implementation section of the Municipal Planning Strategy and Policy IM-2, contained therein, which states … (b) the adequacy of … storm water management services; (f) the potential for … erosion (j) suitability of the site in terms of grades, soil and bedrock conditions, location of watercourses, marshes, swamps or bogs; … [40] Dr. Smith withdrew the appeal after reaching a Settlement Agreement with Parkland which included the following clauses (among others): 5 Parkland agrees, promises and warrants to Smith that it will comply with all those provisions within the development agreement which affect the actual or possible use or enjoyment of the abutting property by its occupant, including, without limiting the generality of the above, the requirements relating to stormwater drainage and traffic, as though such provisions were set out individually herein with any necessary changes for context. [emphasis added] 6 In the event that the development of the subject property results in additional water flows onto the abutting property from the subject property and that damage is experienced by the abutting property as a result thereof, Parkland agrees, promises and warrants that it will be responsible for immediately remediating the problem and indemnifying Smith for any damages resulting there from. [emphasis added] [41] It is noteworthy that Dr. Smith commenced an action against Parkland on May 30, 2006 concerning the Development but chose not to add the Town until almost eight years later. It is difficult to comprehend how Dr. Smith had sufficient material facts upon which to commence an action against Parkland concerning the Development, but not sufficient material facts to commence a claim against the Town for negligence in approving the Development Agreement. [42] I find it would have been (or ought to have been) obvious to Dr. Smith by August 19, 2008 what the Town Council's decision to enter into the Development Agreement had been based upon, as she had spent two days reviewing the files of the Development at the Town offices. Prior to her visit she wrote to the Town on July 4, 2008 concerning the “adverse effects on Pleasant Street.” Dr. Smith indicated she had been advised to contact Mr. Langille of the Town for copies of documents regarding construction of Cedarstone and Parkland. With respect to the Parkland Development she requested the following: • Reports submitted from an architect regarding the proper testing of the soil with respect to the water content of the property prior to building. • The controls and monitoring of water flows from the spring-fed property. • All documentation on the protection of the neighbouring properties during construction of dust, safety, etc. (as described in the Municipal Building Code). • Copies of meetings, testing and documentation during and after construction to show that neighbouring properties will not be adversely affected by the changes of the property such as diverting stormwater and inground springs. • Copies of proof to show the water is properly managed and any investigation in the water as reported by myself. • Please provide appropriate documentation to show the site management plans for drainage by the developer. [43] Dr. Smith gave evidence that she did not find any of the above items in the files of the Town when she attended for review of the Development file. By this date Dr. Smith had sufficient material facts to advance her claim. She had requested documentation regarding testing and reports concerning water content and management. Her evidence indicates she found none on review of the Town files regarding the Development. She did not need the Giovannetti Report to draw her conclusions. In addition, she was represented by legal counsel at the time and it was counsel who directed her to seek the information from the Town. Further, she had previously advanced an appeal of the decision of the Town and, in reaching a settlement with Parkland, had sufficient knowledge to include in that settlement provisions relating to compliance with stormwater drainage as well as provisions for remediating any additional water flow. [44] I find the date of discoverability regarding Dr. Smith’s claim of negligence of the Town in approving the Development to be August 19, 2008. The 12-month limitation period and any equitable extension would have expired by August of 2013. Dr. Smith’s action against the town was commenced on February 11, 2014 --more than eight years after Town Council had approved entering into a Development Agreement and almost eight years after the Agreement was executed. [45] Dr. Smith must present evidence that the limitation period has not expired because of the discoverability principle. She says she did not have the requisite material facts until receipt of the Giovannetti report in September of 2012. I find Dr. Smith had sufficient material facts of a potential claim by August 19, 2008 after a review of the Town's Development file. There is no genuine issue of material fact relating to Dr. Smith's claim of negligence against the Town in approving the Development Agreement, nor is there a question of law to be decided. Therefore, summary judgment must be granted in relation to this claim against the Town. (2) Claim of negligent inspection: [46] The Town asserts Dr. Smith's claims relate to only Phase 1 and 2 of the Development. The Town takes the position that under s. 504(3) of the Municipal Government Act any claims arising from inspections related to Phase l and 2 of the Development are outside the six-year period. [47] Dr. Smith maintains the claims of negligent inspection against the Town also include Phases 3 and 4 of the Development. [48] Section 504 of the Municipal Government Act, S.N.S 1998, c.18 states: No liability 504(1) Where a municipality or a village inspects buildings or other property pursuant to this Act or another enactment, the municipality or the village and its officers and employees are not liable for a loss as a result of the manner or extent of an inspection or the frequency, infrequency or absence of an inspection, unless the municipality or the village was requested to inspect at appropriate stages, and within a reasonable time, before the inspection was required, and either the municipality or the village failed to inspect or the inspection was performed negligently. 504(2) An inspection is not performed negligently unless it fails to disclose a deficiency or a defect that (a) could reasonably be expected to be detected; and (b) the municipality or the village could have ordered corrected. 504(3) Notwithstanding the Limitation of Actions Act or another statute, a municipality or a village and its officers and employees are not liable for a loss as a result of an inspection or failure to inspect, if the claim is made more than six years after the date of the application for the permit in relation to which the inspection was required. 504(4) If a municipality or a village receives a certification or representation by an engineer, architect, surveyor or other person held out to have expertise respecting the thing being certified or represented, the municipality or the village and its officers and employees are not liable for any loss or damage caused by the negligence of the person so certifying or representing. [49] Dr. Smith’s claim of negligence in inspecting the development and construction must be assessed in light of section 504(3) of the Municipal Government Act. This provision makes it clear that the town cannot be liable for "loss as a result of an inspection or failure to inspect if the claim is made more than six years after the date of the application for the permit in relation to which the inspection was required.” As was stated in The Municipality of the District of Yarmouth v. Nickerson, 2017 NSCA 21 section 504(3) it is not a limitation period. It is a bar to actions taken more than six years after the date of application for the permit (paragraph 84). [50] The Development proceeded in four distinct phases. Each phase involves construction of separate townhouses and/or apartment buildings. Therefore, in relation to s. 504(3) I must examine the building permit application dates for each phase of the Development. [51] The evidence illustrates that in relation to Phase 1 of the development the application for the building permit was made on June 20, 2006. The amended notice of action and statement of claim was issued on February 11, 2014 more than six years after the permit application date. The latest date to advance a claim was by June 20, 2012. Dr. Smith’s claim of negligence in inspecting the development and construction in relation to Phase 1 of the Development is unsustainable. There is no genuine issue of material fact nor a question of law. Summary judgment must issue with respect to the claim of negligent inspection of Phase 1 of the Development. [52] The application for a building permit in relation to Phase 2 of the Development, which abuts the Smith property, was on March 31, 2006. The permit application date was on March 31, 2006; however, two separate building permits were issued (one for the foundation only on April 19, 2006 and one for the remainder on June 19, 2006). Pursuant to s. 504(3) the six-year timeframe for bringing a claim ended on March 31, 2012. Dr. Smith’s claim of negligence in inspecting the development and construction in relation to Phase 2 of the Development is unsustainable. There is no genuine issue of material fact nor a question of law. Summary judgment must issue with respect to the claim of negligent inspection of Phase 2 of the Development. [53] During argument, counsel for Dr. Smith did not take issue with the application of s. 504(3) to the Phase 1 and 2 inspection claims. [54] There were two building permit applications in relation to Phase 3 of the development. The first building permit application was solely for a two-unit building and is dated April 25, 2007(permit # 060-2007). The six-year timeframe for bringing a claim expired on April 25, 2013. Dr. Smith’s claim of negligence in inspecting the development and construction in relation to the two-unit building of Phase 3 of the Development is unsustainable. There is no genuine issue of material fact nor a question of law. Summary judgment must issue with respect to the claim of negligent inspection of Phase 3 (the two-unit building) of the Development. [55] The second Phase 3 building permit application was for a four-unit townhouse and is dated April 3, 2013 (Affidavit of Mr. Fox, Tab 38) (permit number 032-2013). Dr. Smith’s claim against the Town for negligence in inspecting the development and construction in relation to Phase 3 was commenced less than 12 months after the permit application date (February 11, 2014). There is no need to consider s. 504(3) here as the claim is well within the six years specified. [56] The building permit application for Phase 4 of the development is dated May 21, 2010. The 12-month limitation period in the Municipal Government Act expired one year later. Section 3(2) of the former Limitation of Actions Act allows me to extend this limitation for a further four years if it appears equitable to do so. In the circumstances of this matter I am inclined to do so. In reaching this conclusion, I have considered section 3 and, in particular, s. 3(2) and the factors set out in s. 3(4). I find there is no prejudice to the Town in extending the limitation period for Phase 4 construction. The Town was aware of Dr. Smith's concerns regarding this Development even before the Development Agreement was executed in June of 2006. Dr. Smith was fully engaged with Town representatives to advance her concerns. Although Mr. Rafferty, counsel for the Town, provided Dr. Smith with the Town's position that the limitation period had expired, this was on October 2, 2008 before Phase 4 construction had begun, so cannot relate to Phase 4. Dr. Smith’s claim against the Town for negligence in inspecting the Phase 4 construction is within the applicable limitation period given the equitable extension. Section 504(3) has no application here as the claim is within the six-year period. [57] The Town asserts Dr. Smith's claims all relate to Phase 1 and 2 construction and that Phase 3 and 4 construction are not relevant to the action. Dr. Smith says Phases 3 and 4 are part of her claim and have an overall impact. I have set out my reasoning concerning Phases 3 and 4 at pages 32-33 of this decision. This reasoning is equally applicable here. [58] In summary, in relation to Phases 3 and Phase 4, I find that based on the pleadings and evidence, including the Giovannetti Report, there is a genuine issue of material fact to be determined. Therefore, the claim of negligent inspection by the Town of Phase 3 (other than the two-unit building) construction and Phase 4 construction should not be determined by summary judgment. (3) Claim alleging negligence of the Town in failing to require Chesswood and Parkland to follow the terms of the Development Agreement: [59] The third claim in negligence is the claim at paragraph 25 of the Statement of Claim alleging negligence of the Town in failing to require Chesswood and Parkland to follow the terms of the Development Agreement. Again, the Development was constructed in phases. The building permit dates were: Phase 1 - June 22, 2006; Phase 2 - June 19, 2006; and Phase 3 (two-unit building) - May 2, 2007. I will address discoverability and then the specific phases of construction. [60] The Town asserts discoverability coincides with the evidence that Dr. Smith in 2006 wrote to and communicated with the Town almost immediately after the Development began regarding water issues. The Town further submits the absolute latest time period for discoverability is January 7, 2009 when Dr. Smith wrote to the Ombudsman. [61] Dr. Smith states her claims are not barred because the date of discoverability is much later than the Town alleges. She claims the material facts on which the action rests were only discoverable after receipt of an involved multidisciplinary expert report prepared by Mr. Giovannetti and dated September 7, 2012. [62] Dr. Smith says she received the Giovannetti report on Sept 7, 2012. She acknowledges that in setting this date the 12-month limitation period would have expired one year later and prior to issuing the amended notice of action and statement of claim adding the Town as a defendant. Dr. Smith further asserts the amended claim adding the Town was issued on February 11, 2014 within an equitable four-year extension. Dr. Smith says she did not have the requisite material facts available to her until receipt of the Giovannetti Report. [63] Dr. Smith says at page 11 of her brief: "it cannot possibly be said that when Dr. Smith discovered water in her basement and on her lawn, she had discovered the harm for which she now seeks compensation. As set out by the reports the true cause of the water damage is far more complicated than Dr. Smith ought reasonably to have known. She could not possibly have attributed the excess water to its true cause, a variation in the subsurface water tables exacerbated by a change in slope, particularly fine-grained soil, and the removal of a culvert." Dr. Smith’s brief further states: “Prior to consulting an engineer regarding the source of the water, Dr. Smith could certainly not have sustained an action against the Town. Again, though she had suspicions, she had no knowledge of the material facts that could have led her to the belief that the Town was negligent as set out in her Amended Statement of Claim." [64] Discoverability means knowledge of the facts that may give rise to the action. The knowledge required to start the limitation period running is more than a mere suspicion but less than exacting knowledge. The discovery of the claim does not require that Dr. Smith knew her claim against the Town was likely to succeed. The limitation period runs from when Dr. Smith had or ought to have had knowledge of a potential claim. The discovery of additional facts at a later date does not postpone the discovery of the claim. [65] Dr. Smith began complaining about water coming from the Development and impacting her property in 2006 and indicates there was resulting damage to her residence in 2008. Dr. Smith’s evidence is that flooding of her property began within a month of construction commencing in 2006. [66] As early as 2006 Dr. Smith had given sufficient thought to compliance with the Development Agreement when, in her Settlement Agreement with Parkland (dated February 27, 2006) she included specific wording that Parkland comply with "all those provisions within the development agreement." She specifically referenced requirements relating to stormwater drainage. [67] The documentation Dr. Smith was looking for during her visit to the Town offices to review the Development file on August 18 and 19 of 2008 included: reports submitted from architect regarding the proper testing of the soil regarding the water content of the property prior to building; copies of meetings, testing and documentation during and after construction to show that neighbouring properties will not be adversely affected by the changes of the property such as diverting stormwater and inground springs; copies of proof to show the water is properly managed and any investigation in the water as reported by myself and documentation to show the site management plans for drainage by the developer. This is a list of someone who knows what she is looking for and is seeking evidence to substantiate her claim. [68] The letter of October 2, 2008 from Mr. Rafferty made it clear the Town was denying any liability and taking the position the limitation period had expired. This letter was copied to legal counsel for Dr. Smith. One would think such a letter would implore an inquiry as to limitation periods and possible action against the Town. [69] The information contained in the chart at pages 7-11 herein illustrates that Dr. Smith was aware of the material facts on which the cause of action was based by no later than January 7, 2009. This is the date of her letter to Mr. Crocker, the Ombudsman representative (copied her counsel Mr. Bégin) in which she detailed her claim against the Town stating for example: .… Also, the undeveloped land had many free-flowing springs that could be seen on the ground surface. I brought this to the attention of the town development officer and developer of the complex and stipulated in the legal contract that any damage caused from water coming from their property be repaired at their expense. … flooding and erosion has caused major soil loss resulting in extensive damage to my gardens, walkways and is now causing structural damage to my house, such as interior drywall and tile cracking, plus exterior vertical cracking of bricks and loss of mortar, movement of entrance steps, weakening of the supporting wall, to name but a few. My driveway now sits filled with water after any rain… The town is refusing to recognize my problems and the engineer is saying this water problem has been caused by something I have done to my property.… There had not been a problem with water prior to or after the change until March 2007. Now, with any rain the flooding in my driveway seems to get more extensive and stays longer. I have also noted that my property ground levels have been decreasing more rapidly over the unsupported banks from the construction on the other side and extensive root exposure of the trees that are remaining… The next step is to hire an engineer to determine where the water is coming from. After a consult at my property, the engineer felt the water is most likely a combination of surface and subsurface water. This investigation will be very costly but appears necessary. Through my days, months, and years of research, I learned that the area in which I live has been known to have many springs and, in past years, complaints of water have been made to the town.… Now, when I should be focusing on life, I find myself asking your department if you can see any injustice from the actions of the town. For the first time, I have uncomfortably not paid this term’s taxes and I am becoming of character unlike myself… In summation, it is felt that the town has failed to follow their own strategies for municipal planning and protecting and adjacent landowner from two large developments. This involves failure to bring in the appropriate professionals to evaluate the provided support for my property line and the flooding of my property. The town has been making promises for years and now an action is insisted, the town counsellors and the mayor refusing to recognize that these developments are related to my problems … [emphasis added] [70] In relation to Dr. Smith's claim that the Town failed to require compliance with the Development Agreement, causing water damage to her property, at the date of this letter she had sufficient material facts to advance her claim. [71] Dr. Smith, by the date of this letter, was able to set out her claims against the Town to the Ombudsman in detail. Claims she had been attempting to advance through correspondence and meetings with the Town, and later its legal counsel and the Ombudsman. In addition, throughout this period Dr. Smith was represented by legal counsel. [72] In her affidavit at paragraph 16, Dr. Smith states: "… It is through the hydrologists report prepared by J. Russell Finley of ECCO Environmental Consulting and Contracting Inc. and reviewed by Mr. Giovannetti that the subsurface issues resulting from the development became known to me . . . ". However, in the letter of January 7, 2009, Dr. Smith makes it clear she knew of subsurface water issues at least by the date of the letter, as she states: "After a consult at my property, the engineer felt the water is most likely a combination of surface and subsurface water." [73] Dr. Smith says there was a lot of speculation but no answers were confirmed until the expert report was issued to her. However, the evidence illustrates that from very early on Dr. Smith was convinced the water was coming from the Parkland Development, she was aware of surface and subsurface water, she had various professionals attend her property, including an engineer who indicated the problem was likely a combination of “surface and subsurface water”, and she continually indicated the problems required the Town’s intervention. [74] Dr. Smith submits that she retained an expert shortly after writing a letter to the Ombudsman in January 2009. However, her affidavit indicates the expert was retained in March of 2010 more than a year later. The expert report was not produced until September 7, 2012. This is approximately three years and eight months after Dr. Smith first referenced retaining an expert. Awaiting an expert report does not extend a limitation period. There is a big difference between having sufficient information to start an action and proving the claim. One does not require all of the expert evidence necessary to prove the claim when commencing a claim. [75] Dr. Smith claims that some of the above delay was due to difficulty in accessing the Development in order to conduct testing. This required a motion in December of 2010 which was then adjourned later in December without day. This does not explain the delay in retaining Mr. Giovannetti nor why it took two and a half years to produce the report. One cannot wait years to retain an expert and then claim the date of discoverability as the date of the expert report. The test is when the material facts on which the cause of action is based have been discovered or ought to have been discovered by exercise of reasonable diligence. This does not require absolute certainty. [76] Dr. Smith says at paragraph 19 of her affidavit: "I did not know the extent of potential liability of the Town with respect to the subsurface flooding until I reviewed the Giovannetti Report." [emphasis added] It is not necessary for Dr. Smith to know the "extent" of potential liability for determining the discoverability date. The Giovannetti Report is evidence Dr. Smith garnered to support her claim. It was not the means of discovering the claim. Dr. Smith had knowledge of the facts giving rise to the claim long before the report was received in September of 2012 and more particularly by January 7, 2009. [77] Dr. Smith says this case is similar to Jagosky v. Corporation of the Town of Huntsville, 2010 ONSC 4590 (appeal dismissed 2011 ONCA 324) where the Court found the date of discoverability to be the day Mr. Jagosky was served with a soil engineering report. The Court found that, as a result of receipt of that report, Mr. Jagosky knew of the latent defect being a lack of integrity in the foundation whereby the footings had not been installed on undisturbed soil. In that case the Court was dealing with the Ontario Limitation of Actions Act provisions relating to discoverability. Mr. Jagosky argued that the date of discoverability was in 2009 when an expert report he commissioned was received. The Court found that, from receipt of the 2004 soil engineering report, Mr. Jagosky took no steps to investigate or do any independent testing until 2009 despite having met with an inspection company in 2004. The date of discoverability was found to be when the initial report was received in 2004. [78] There is no magic to receipt of an expert report. The receipt of an expert report may, in some circumstances, represent the date of discoverability. However, it is simply part of the overall factual inquiry and the date of discoverability depends on the facts of the matter in issue. [79] The inquiry is when did the plaintiff have or ought to have had knowledge of the potential claim. In the present case I find the date of discoverability to be well before receipt of the Giovannetti Report. It is noteworthy that the Court in Jagosky stated at para. 26: [26] a plaintiff does not need to know the precise cause of injury before the limitation period starts to run, or the full extent of the loss suffered. Such a threshold for the commencement of a limitation period “places the bar too high”. Instead, a plaintiff need only know enough facts to base its allegation against the defendant. [80] Dr. Smith had retained legal counsel in 2004. Counsel was copied on key correspondence including with legal counsel for the Town, Mr. Rafferty and with the Ombudsman, Mr. Crocker. Given Dr. Smith’s knowledge set out above and the role of counsel, the date of discoverability with regard to the claim of negligence of the Town in failing to require compliance with the Development Agreement with respect to Phases 1 and 2 and Phase 3 (two-unit building) was solidified by January 7, 2009 when Dr. Smith outlined her claims against the Town in a letter to the Ombudsman. Construction of Phases 1 and 2 was well underway and, in some cases, complete by this date with occupancy permits issued for Phase 1 on June 2, 2008 and June 1, 2009 and for Phase 2 on July 7, 2009. The building permit for the Phase 3 two-unit building was issued on May 2, 2007. I infer from the evidence (including the Giovannetti Report) construction was also well underway, if not complete, for the two-unit building by January 7, 2009. [81] Construction did not commence until the building permit dates being June of 2010 for Phase 4 and April of 2013 for Phase 3 (the four-unit townhouse). Compliance with the Development Agreement for these phases could not occur until after construction began. There was no evidence before me on which to conclude when excavation of the Phase 3 and 4 areas of the Development occurred. The claims relating to negligence in failing to require Chesswood and Parkland to follow the terms of the Development Agreement in relation to construction of Phase 3 and 4 are not statute-barred. As stated above I find the circumstances appropriate to extend the 12-month limitation period using the equitable extension provisions of s. 3(2) of the former Limitation of Actions Act in relation to Phase 3 (the four-unit building). Phases 3 and 4 of the Development [82] The Town states Dr. Smith's claims all relate to Phase 1 and 2 of the Development and there is no sustainable claim in relation to Phases 3 and 4. The Town further argues there was no evidence led as to breach of the Development Agreement. [83] Dr. Smith states this is not so and points to Phases 3 and 4 as also being part of her claim. While the majority of the complaints of Dr. Smith originated during the construction of Phases 1 and 2, the Giovannetti Report includes references to the entirety of the Development potentially contributing to the issues in question. Appendix 11, Page 4 … The unknown storm management procedures for the Parkland footing drain, roof drain and subsurface construction is of concern as any excessive groundwater from this development in theory would cause failure to the slope… P18 ECCO Environmental states: … five townhouses 413-421, apartment building 423, second apartment building currently under construction 427 … The apartment buildings and town houses all contain sub surface level which, of necessity, would require excavation of soil prior to their construction in 2006. Current observations show the grade to the south has been reduced following construction of apartment building and town houses with a swale placed between the subject and up gradient properties… Following construction of the buildings, the majority of the available surface has been covered by buildings, pavement, etc. replacing the natural ground cover. Based on current configuration 60 to 65% of the property is covered by an impermeable surface. Additional ongoing construction at 427 Pleasant will further reduce the permeable surface area that currently exists. I note the apartment building at 427 Pleasant Street is Phase 4. P29 ECCO environmental states: … development of the southern properties have altered the groundwater flow patterns resulting in the adverse impacts documented at 389/395 Pleasant Street. [emphasis added] [84] The pleadings are not confined to Phase 1 and 2, nor is Dr. Smith’s evidence of continuing water issues on her property as of the dates of her discovery examinations in 2016. The Town says Dr. Smith’s water complaints arose during construction of Phases 1 and 2 and that Phases 1 and 2 are closest in proximity to Dr. Smith’s property and this is sufficient to find Phases 3 and 4 are not relevant to the claims. This is supposition -- not evidence. On review of the evidence, including the Giovannetti Report and attachments, I cannot conclude the alleged issues relate only to Phases 1 and 2. The above comments from the various reports forming the overall Giovannetti Report lead me to conclude there is a genuine issue of material fact to be determined in relation to Phase 3 (other than the two-unit building) and Phase 4. Summary judgment cannot issue as a result of this finding. [85] The Town asserts Dr. Smith has not proven a breach of the Development Agreement and, therefore, the claim alleging negligence of the Town in failing to require Cheswood and Parkland to follow the terms of the Development Agreement cannot proceed. In argument, counsel for Dr. Smith pointed to clause 3.4.5. of the Development Agreement. Review of the Development Agreement and, in particular, clauses 3.4.5 dealing with stormwater drainage and clause 3.4.9 dealing with landscaping, read together with the allegations in the Statement of Claim, illustrate Dr. Smith takes issue with compliance with at least the above-noted provisions of the Development Agreement. [86] As noted above, I find that with regard to the claim alleging negligence of the Town in failing to require Cheswood and Parkland to follow the terms of the Development Agreement with respect to Phase 3 (not including the two-unit building) and Phase 4, there is a genuine issue of material fact that should not be determined by way of summary judgment. Continuing Negligence/Recurring Tort [87] With reference solely to the third claim of negligence, being negligence of the Town in failing to require Chesswood and Parkland follow the terms of the Development Agreement, Dr. Smith says there is continuing negligence on the part of the Town. Dr. Smith claims the Town cannot show the limitation period expired, “as Dr. Smith's claim is one based on a rolling or continuous cause of action. An issue with the development has been identified and the Town has not taken steps to force the developer to correct the problem as it is required to do by the Development Agreement.” Dr. Smith asserts the Town is negligent so long as it fails to cause the developer to properly manage the subterranean water flow. Dr. Smith further says although the claim against the Town is negligence -- not trespass nor nuisance -- the pleadings sustain the continuing nature of the claim and that the Town's negligence continues as long as the nuisance and trespass of the developers continues. [88] This argument of Dr. Smith is now only relevant in relation to Phases 1 and 2 and the two-unit building of Phase 3. As indicated above, I have found there is a genuine issue of material fact in relation to the claim alleging negligence of the Town in failing to require Cheswood and Parkland to follow the terms of the Development Agreement, with respect to Phase 3 (not including the two-unit building) and Phase 4. [89] Dr. Smith has not provided the Court with any authority that negligence in failing to require Chesswood and Parkland to follow the terms of the Development Agreement is a continuing tort. She has not provided any caselaw where negligence was found to be a continuing tort. The cases cited in Dr. Smith’s brief are nuisance and trespass cases; however, neither nuisance nor trespass have been pleaded against the Town. Nuisance and trespass have been found in certain circumstances to be continuing torts. Here the claim against the Town is solely in negligence -- negligence in failing to require compliance with the Development Agreement. At most, this might be cast as a cause of action arising from a single act of negligence in relation to a particular phase of construction with continuous effects as opposed to what Dr. Smith argues are continuous acts such as can be found with trespass and nuisance. For example, if in relation to the Phase 1 construction the Town failed to require compliance with clause 3.4.5 of the Development Agreement one might argue this is a single event of negligence that may have continuous effects (being continuing water flow) but it is not a continuing tort. This does not assist Dr. Smith in extending the limitation period in relation to Phase 1, Phase 2 and Phase 3 (two-unit building) of the Development. [90] As I have found above, the date of discoverability in relation to phases 1, 2 and 3 (two-unit building) was January 7, 2009. The action was commenced beyond the applicable limitation period and any equitable extension being to January 2014 (January 7, 2009 plus 12 months plus four years). The action was commenced in February of 2014. There is no genuine issue of material fact relating to Dr. Smith's claim of negligence in failing to require compliance with the Development Agreement, nor is there a question of law to be determined. Therefore, summary judgment must be granted. Conclusion: [91] The Town has established there are no genuine issues of fact, or mixed fact and law, on the question of whether Dr. Smith’s action is statute-barred in relation to the following: 1. Dr. Smith's claim the Town was negligent in approving the Development Agreement. 2. Dr. Smith's claim alleging negligence of the Town in failing to require Chesswood and Parkland to follow the terms of the Development Agreement in relation to Phase 1, Phase 2 and Phase 3 (two-unit building only). [92] I further find a determination of a question of law is not required. Summary judgment is granted in relation to the above. [93] Dr. Smith’s claims of negligent inspection by the Town in relation to Phase 1, Phase 2 and Phase 3 (two-unit building only) cannot proceed, as they were commenced more than six years after the permit application date contrary to s. 504(3) of the Municipal Government Act. There are no genuine issues of fact, or mixed fact and law nor is there a question of law to be determined. Summary judgment is granted. [94] Summary judgment is granted with respect to all claims of Dr. Smith against the Town relating to Phase 1, Phase 2 and Phase 3 (two-unit building only) of the Development. Summary judgment is granted in relation to Dr. Smith's claim the Town was negligent in approving the Development Agreement. [95] In relation to Phase 3 (not including the two-unit building) and Phase 4, I find as follows: • Dr. Smith’s claims of negligent inspection by the Town raise a genuine issue of material fact, therefore, summary judgment cannot issue. • Dr. Smith's claim alleging negligence of the Town in failing to require Chesswood and Parkland to follow the terms of the Development Agreement raises a genuine issue of material fact, therefore, summary judgment cannot issue. [96] I am cognizant of the provisions of Rule 13.08; however, this matter is already set for trial. As noted previously, the Court, at the date assignment conference, directed this motion to occur well in advance of the trial dates. I find in these circumstances there is nothing further required pursuant to Rule 13.08. [97] If the parties are unable to agree on costs, I will receive written submissions within thirty (30) calendar days of this decision. I suggest Mr. Withrow prepare the form of Order. Jamieson, J.