COURT OF APPEAL FOR ONTARIO

CITATION: Sandro Steel Fabrication Ltd. v. Chiesa, 2013 ONCA 434

DATE: 20130621

DOCKET: C56680

Laskin, Rosenberg and Tulloch JJ.A.

BETWEEN

Sandro Steel Fabrication Ltd.

Plaintiff (Respondent)

and

Edward Chiesa and Edward Engineering

Defendants (Appellants)

Peter J. Mitchell, for the appellants

Sean Lawler, for the respondent

Heard and released orally: June 14, 2013

On appeal from the order of Justice Edward Koke of the Superior Court of Justice, dated January 30, 2013.

ENDORSEMENT

[1] The appellant submits that s. 11(1) of the Limitations Act, 2002, should only be triggered by express written agreement referencing the specific claim sought to be tolled and, in this case, the alleged agreement to mediate the Sandro mediation damages was void for want of mutual intention to the agreement in all essential terms required by the law of contract. As such, the motions judge erred in his conclusions that the mutual intention of the parties to mediation the Sandro remediation damages could be applied from the surrounding circumstances is not supported by the evidence and goes against the weight of the evidence. We disagree.

[2] In our view, the motions judge made a finding that there was an agreement to mediate the claim resulting from the collapse of the building which included the Sandro remediation damages. This finding is owed deference. Based on the evidence before him, this was a reasonable conclusion. As such, by virtue of s. 11(1) of the Limitations Act, 2002, the limitation period was suspended.

[3] The appellant also argues that in para. 69 of the motions judge’s decision, he suggested s. 11(1) applies even in situations where there is ambiguity surrounding the existence of an agreement.

[4] This decision should not be taken as endorsing that statement. The disposition of this case turns on the finding by the motions judge that, based on the evidence, there was an agreement to mediate all the claims.

[5] As such, the appeal is dismissed. Costs are fixed at $7,250 to the respondents, inclusive of all applicable taxes and disbursements.

“John Laskin J.A.”

“M. Rosenberg J.A.”

“M. Tulloch J.A.”