Homeowners retained a septic system installer to install a system in 2010, which was approved by the health unit.
Problems with smell and effluent began in 2011 and persisted through 2013.
The installer repeatedly assured the homeowners he could fix the problem and made several attempts to do so.
In 2015, the health unit condemned the system and issued a compliance order.
The homeowners sued in August 2015.
The trial judge dismissed the action as statute-barred under the Limitations Act, 2002, finding the claim was discovered by spring 2013.
The Divisional Court upheld this decision.
The Court of Appeal reversed, finding the trial judge failed to properly analyze section 5(1)(a)(iv) of the Limitations Act regarding when a proceeding would be an appropriate remedy.
The court held that the homeowners reasonably relied on the installer's superior knowledge and expertise, and a proceeding was not appropriate until the installer's remedial efforts ceased in winter 2014.
The action was therefore within the two-year limitation period.