Court File and Parties

CITATION: Whitters v. Furtive Networks Inc., 2012 ONSC 3572

DIVISIONAL COURT FILE NO.: 278/12

DATE: 2012-06-19

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Haley Whitters and Julie Henderson v. Furtive Networks Inc. carrying on business as Demarcation Point and Bell Canada

BEFORE: Justice Swinton

COUNSEL: Peter Cho, for the Plaintiffs/Responding Parties Rahool P. Agarwal, for the Defendant/Moving Party Furtive Networks Inc.

HEARD at Toronto: June 18, 2012

ENDORSEMENT

[1] Furtive Networks Inc. seeks leave to appeal the order of Stevenson J. dated April 5, 2012 dismissing its motion to strike the plaintiffs’ Statement of Claim pursuant to Rule 21.01(1)(a), on the grounds that the action was commenced after the applicable two-year limitation period. The plaintiffs brought this action for damages after water flooded their home through the roof in February 2009.

[2] The moving party argues that the motions judge erred, as the facts pleaded in the Statement of Claim showed clearly that the plaintiffs knew that they had suffered some damage to their roof because Furtive’s technician caused two holes in the roof on November 25, 2008. They argue that once “some damage” is discovered, the limitation period is triggered (Peixeiro v. Haberman, [1997] 3 S.C.R. 549 at para. 18).

[3] The motions judge set out the correct tests to be applied in a Rule 21.01(1) motion. In particular, she cited Beardsley v. Ontario Provincial Police, [2001] O.J. No. 4574 (C.A.) at para. 21, which states,

Although we agree that it would be unduly technical to require delivery of a statement of defence in circumstances where it is plain and obvious from a review of the statement of claim that no additional facts could be asserted that would alter the conclusion that a limitation period had expired, a plain reading of the rule requires that the limitation period be pleaded in all other cases.

In the present case, no Statement of Defence has been filed.

[4] The motions judge concluded that a “full finding of the facts is necessary to determine when the claim was discovered by the Plaintiffs as set out in s. 5 of the Limitations Act” (Reasons at para. 11), and she exercised her discretion to dismiss the motion to strike.

[5] In my view, the moving party has not met the test for leave under Rule 62.02(4)(b). I do not have good reason to doubt the correctness of the decision that it would be inappropriate to determine the limitation period issue on the motion, given that discoverability is in issue. Despite the pleading of knowledge of the holes in November 2008, there is also a pleading that the technician said the holes would not result in further damage. The motions judge also permitted the plaintiffs to file an affidavit stating that the technician said the damage to the shingles was minor, that someone would repair it and that water could not enter the home. In the circumstances, the motions judge correctly stated that there are additional facts that need to be addressed in order to determine when the plaintiffs discovered their cause of action.

[6] Moreover, the proposed appeal does not raise general issues of importance beyond the interests of the immediate parties. The applicable legal principles are well settled. The meaning of “some damage” in Peixiero can be determined on a motion for summary judgment or at trial, with the benefit of the necessary factual record.

[7] Therefore, the motion for leave to appeal is dismissed. Costs to the plaintiffs are fixed at $4,000.00 inclusive of disbursements and HST, payable within 30 days.

Swinton J.

DATE: June 19, 2012