CITATION: Trent University v. Nortex Roofing Limited, 2010 ONSC 2460
DIVISIONAL COURT FILE NO.: DC 454/09
DATE: 20100504
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Trent University
Plaintiff/Respondent
– and –
Nortex Roofing Limited
Defendant/Appellant
Timothy P. Bates/Katherine L. Ayre, for Nortex Roofing Limited
John Phillips, for Trent University
HEARD: March 4, 2010
ellen macdonald j.
reasons for decision
[1] This is an appeal from the decision of Master Short of the Superior Court of Justice dated August 26, 2009. The Master’s detailed reasons are contained in the Appeal Book. He dismissed the Appellant Nortex Roofing Limited’s claim for leave to issue a third party claim against the third parties.
[2] Nortex Roofing Limited (“Nortex”) sought leave to issue and serve third party claims against Vanbots Construction Corporation, Semple Gooder Roofing Limited, Sayers & Associates Limited, Granolite Co. Ltd., O.P. McCarthy and Associates Inc., Dunlop Architects Inc. and Two Row Architects Inc. Master Short dismissed Nortex’s motion for leave to issue the proposed third party claims. In these reasons, I shall refer to the Respondent as “Trent”.
Background and Chronology
[3] The main action arises as a result of a torrential rainfall that occurred on July 15, 2004, causing flooding and water damage to a construction project owned by Trent. Almost 2 years later on July 14, 2006, Trent commenced an action against Nortex in addition to other engineers, architects, contractors, and trades people who were contracted to work on Trent’s construction project between April 30, 2003 and December 2004.
[4] The Appellant was served with the original Statement of Claim naming it as a Defendant on January 3, 2007. Several of the proposed third parties were initially named as co-defendants. Master Short found that the Appellant would have had sufficient information to identify appropriate parties from whom it might seek contribution and indemnity as of the date of the service of the Statement of Claim. It is primarily for this reason that I dismiss this appeal. Master Short exercised his discretion and dismissed Nortex’s motion. Master Short exercised his discretion after a careful analysis of all of the relevant circumstances.
[5] The grounds of this appeal are as follows:
Master Short erred in law by incorrectly converting a motion to commence a third party claim (“Rule 29 Motion”) into a motion for summary judgment (“Rule 20 Motion”) without sufficient basis for doing so.
The Master erred in law by incorrectly applying the Rule 20 Motion test for discoverability to the issue of when a limitation period begins to run pursuant to Rule 29. It is submitted that the test for discoverability and when a limitation period begins to run is different in a Rule 20 Motion than a Rule 29 Motion.
[6] An expert report had been commissioned by Trent and disclosed to the parties including Nortex in October 2004. The Master considered this expert report.
[7] Trent raises a number of issues in this appeal. The first is that the standard of review is reasonableness since it involves the review of the exercise of discretion not correctness as submitted by Nortex except and solely in relation to the Master’s legal analysis of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B for which the standard of review is correctness.
[8] Trent submits that Nortex’s argument is founded on a false premise namely that the Master purported to convert a Rule 29 Motion into a Rule 20 Motion. After carefully analyzing and considering the Master’s reasons, I have concluded that it cannot be said that he converted a Rule 29 Motion into a Rule 20 Motion. The Master addressed all relevant circumstances in assessing whether there was prejudice to Trent on a Rule 29 Motion to add third parties including the prospect of undue delay and added complexity arising from possible limitation defences.
[9] I agree with the statement contained in paragraph 3 of the Respondent’s Factum that this was an exercise of Master Short’s discretion based upon a detailed review of all of the relevant circumstances with the result that this appeal should be dismissed.
[10] It is to be remembered that Nortex refused to allow any cross-examinations on issues relating to the limitation period and discoverability. The Respondent is bound with the existing motion record created by it.
[11] The original Statement of Claim was served on Nortex on January 3, 2007.
[12] On June 21, 2007 Trent served a Notice of Discontinuance on all of the named Defendants exception of Nortex. Trent’s Statement of Claim was amended naming only Nortex as a Defendant. A fresh as amended Statement of claim was served on Nortex on December 3, 2007.
[13] June 18, 2009 Nortex brought a motion under Rule 29.02 seeking an Order granting leave to issue a Third Party Claim against Vanbots Construction Corporation, Semple Gooder Roofing Limited, Sayers & Associates Limited, and other named people who are listed in paragraph 6 of the Appellant’s Factum. Five of these seven Defendants were previously identified and named by Trent prior to issuance of Notice of Discontinuance.
[14] I have considered Mr. Bates’ point that the within appeal raises subtle pointes of law but I cannot conclude that Master Short overlooked them. His reasons demonstrate that he was alert to issues. He considered “undue delay” and as prejudice to Nortex where a limitation period is apparent in relation to the proposed Third Parties.
[15] The standard of review on these matters is reasonableness. The question of law which was raised and considered by the Master relates to the Limitations Act. Nortex agrees that the standard of review on this issue is correctness.
[16] Master Short considered the evidentiary record. He did not convert the motion from Rule 29 to Rule 20. I add that in relation to the Limitations Act, Master Short’s analysis displays a careful consideration of the presumption and onus arising under sections 5(2) and 18 of the Act.
[17] His decision is reasonable in the result and correct in the analysis of the Limitations Act.
[18] On March 16, 2010 Mr. Bates delivered, with a copy to Mr. Gill, the recent decision in the Court of Appeal, Alexis v. Darnley 2009 ONCA 847. This decision was released after I heard submissions in this case. I have read this decision and it does not influence the outcome of this disposition of this appeal.
[19] Accordingly, the appeal is dismissed with costs to Nortex on a partial indemnity basis. If the parties cannot agree on the quantum, they may make written submissions within 20 days of the release of the reasons. Nortex shall make its submissions first followed by responding submissions from Trent.
Ellen Macdonald J.
Released: May 4, 2010
CITATION: Trent University v. Nortex Roofing Limited, 2010 ONSC 2460
DIVISIONAL COURT FILE NO.: DC 454/09
DATE: 20100504
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Trent University
Plaintiff/Respondent
– and –
Nortex Roofing Limited
Defendant/Appellant
REASONS FOR JUDGMENT
Ellen Macdonald J.
Released: May 4, 2010