C.H. Clement v. Seguin Racine et al., 2015 ONSC 6833
DIVISIONAL COURT FILE NO.: 14-DC-2071/14-DC-2072
SUPERIOR COURT FILE NO.: 08-CV-41754
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MARROCCO A.C.J.S.C., HEROLD, WHITTEN JJ.
BETWEEN:
SÉGUIN RACINE ARCHITECTES ET ASSOCIÉS INC., CONSTRUCTION BAO INC. and ADEX SYSTEMS INC.
Appellants
– and –
C.H. CLEMENT CONSTRUCTION
Respondent
– and –
ARXX BUILDING PRODUCTS and ARXX BUILDING PRODUCTS INC.
Third Parties
Charles Simco and Megan Marrie, for the Appellant, Seguin Racine Architectes et Associes Inc.
Daniel J. Leduc, for the Appellants, Construction BOA Inc. and Adex Systems Inc.
Pasquale Santini, for the Respondent, C.H. Clement Construction.
HEARD: October 30, 2015
REASONS FOR JUDGMENT
MARROCCO A.C.J.S.C.
1The motions judge applied the correct legal principles when deciding that, based on the evidence presented to him, the interests of justice required a trial.
2After deciding to dismiss the motion for summary judgment, the motions judge did not seize himself with this matter and exercise fact-finding powers. This approach was recommended by the Supreme Court of Canada in the decision of Hryniak v Mauldin 2014 SCC 7, [2014] 1 S.C.R. 87. We would point out that the Hryniak decision was released by the Supreme Court after the motions judge released the decision with which we are concerned. We can only overrule the motions judge on this issue if we are satisfied that he proceeded on a wrong principle or acted unreasonably in failing to seize himself with this matter and in failing to exercise the fact-finding powers prescribed in the Rules of Civil Procedure, R.R.O. 1990, O. Reg. 194.
3The motions judge determined that there was evidence capable of establishing that the plaintiff knew it had a problem with water leaking into units of the condominium building it had constructed but did not know whether the problem originated with the plaintiff’s own work or the work of others. The motions judge committed no palpable or overriding error in coming to this conclusion because there was such evidence before him.
4The motions judge determined that there was also evidence capable of supporting a conclusion that the plaintiff did not know at the outset how water was entering the units or where the leaks originated. The motions judge committed no palpable or overriding error in coming to this conclusion because there was such evidence before him.
5The motions judge determined that the evidence with which he was presented was capable of supporting a conclusion that expert reports may have been required before it could be demonstrated to the plaintiff who had committed the act or omission which resulted in water leaking into the corner units. The motions judge committed no error in coming to this conclusion: see Mark v. Guelph (City) (2010), 2010 ONSC 6034, 104 O.R. (3d) 471, at paras. 42 & 43.
6The motions judge distinguished the case of Kowal v. Shyiak, 2012 ONCA 512, 296 O.A.C. 352, and, in our view, made no error in doing so. Apart from the reasons advanced by the trial judge, we observe that, in the Kowal case, the plaintiffs were not contractors and played no role in the construction of their cottage apart from paying for it. The faulty stucco installation could only have been caused by the third party who installed it, the general contractor or both. In the Kowal case, the defendants entered into remediation attempts shortly after the leakage was first observed. It was clear that the defendants were accepting at least some responsibility for the faulty construction. Those facts do not present themselves in this case. In the case before the motions judge, the plaintiff was responsible for construction of the condominium and could not be sure until he received the draft engineering report that anyone else was at fault.
7The motions judge determined that there was evidence that the plaintiff’s architect had concealed concerns about the problems associated with the exterior finish because the architect feared his own potential liability. Apparently concerns about the stucco in question had been raised by the Ontario Association of Architects in 2002. Counsel for the appellant architect objected to the trial judge’s reliance on the appellant’s evidence in this regard because fraudulent concealment was not pleaded in the statement of claim. Reference to fraudulent concealment is contained in the affidavit which the appellant filed in response to the motion for summary judgment. The appellant was the only person to file affidavit evidence. The respondents offered no evidence on their motion for summary judgment. In our view, the motions judge correctly considered this evidence to be relevant to the issue of discoverability and that it would be better developed at a trial.
8The appellants argue that the motion judge should have invoked his fact-finding powers under Rule 20.04(2.1) and (2.2).
9According to section 5(1) of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, a claim is discovered on the day on which the person with the claim first knew or ought to have known that
the injury had occurred,
the injury was caused by, or contributed to by, an act or omission,
the act or omission was that of the person against whom the claim was made and
Having regard to the nature of the injury, loss or damage a proceeding would be an appropriate means to seek a remedy.
10There was evidence before the trial judge from which he could conclude that there was a genuine issue concerning when the respondent knew or ought to have known that the act or omission which caused the water penetration was an act or omission of the appellants. It appears to us that the resolution of this issue will involve consideration of virtually all of the evidence that would likely be called at the trial, and accordingly we cannot conclude that resorting to the fact-finding powers would have made any appreciable difference in the resources or length of time that it would take to resolve this matter. As a result, we find no error in the fact that the trial judge did not consider whether he should resort to his fact-finding powers under Rule 20.04(2.1) and (2.2).
11Absent an error of law, the motions judge’s decision that he was unable to resolve the Limitations Act defence on a motion for summary judgment is entitled to deference: see Hryniak, at paras. 81-82.
12Accordingly, this appeal is dismissed with costs. The parties agreed that the costs of the appeal should be $7500 plus disbursements plus HST where applicable. We agree that this is a reasonable amount and order the appellants to pay this amount to the respondent.
MARROCCO A.C.J.S.C.
HEROLD J.
WHITTEN J
Released: 20151104
CITATION: C.H. Clement v. Seguin Racine et al., 2015 ONSC 6833
DIVISIONAL COURT FILE NO.: 14-DC-2071/14-DC-2072
SUPERIOR COURT FILE NO.: 08-CV-41754
DATE: 20151104
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MARROCCO A.C.J.S.C., HEROLD, WHITTEN JJ.
BETWEEN:
SÉGUIN RACINE ARCHITECTES ET ASSOCIÉS INC., CONSTRUCTION BAO INC. and ADEX SYSTEMS INC.
Appellants
– and –
C.H. CLEMENT CONSTRUCTION
Respondent
– and –
ARXX BUILDING PRODUCTS and ARXX BUILDING PRODUCTS INC.
Third Parties
REASONS FOR JUDGMENT
Released: 20151104