CITATION: Iamarino v. Brampton Hardwood Floors Ltd., 2018 ONSC 3408

DIVISIONAL COURT FILE NO.: DC-16-136-00

DATE: 20180601

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

GINA IAMARINO

Appellant

– and –

BRAMPTON HARDWOOD FLOORS LTD. and VANDONA GUPTA

Defendant

A. Alton, for the Appellant

A. Bakaity, for the Defendant

HEARD: April 13, 2018

REASONS FOR JUDGMENT

André J.

1The Appellant Brampton Hardwood Floors Ltd. (“Brampton Hardwood”) appeals to the Divisional Court from the judgment of Deputy Justice Noonan dated November 10, 2016, on the ground that he erred in law by failing to conclude that the Respondent: Gina Iamarino’s action against Brampton Hardwood was statute-barred.

BACKGROUND FACTS

2On August 11 2012, Ms. Iamarino purchased hardwood flooring from Brampton Hardwood. She hired an installer whose name she received from an employee of Brampton Hardwood to install the flooring in her home as well as two sets of stairs she received from the installer.

3The installation of the flooring commenced on August 20, 2012 and ended on September 14, 2012 after Ms. Iamarino stopped payment on a $2,000 cheque due to deficiencies in the quality of the workmanship.

4Ms. Iamarino complained about the deficiencies of the installer of Brampton Hardwood. The installer attempted to remedy the deficiencies without success. Efforts by a representative from Brampton Hardwood between September and November 2012, to resolve the issues between Ms. Iamarino and the installers ultimately proved to be unsuccessful.

5On September 29, 2014, Ms. Iamarino commenced an action against Brampton Hardwood alleging breach of contract caused by deficient installation of hardwood floors.

6Deputy Justice Noonan heard the trial and provided his Reasons for Judgment on November 10, 2016. He found in favour of Ms. Iamarino and awarded her damages in the amount of $25,000. He relied on the following findings of fact in arriving at his decision:

(1) the action was not statue barred pursuant to the Limitations Act, 2002, S.O. 2002, c. 24

(2) the relationship between Brampton Hardwood and Ms. Iamarino was that of a binding contractual agreement for the installation of a hardwood floor;

(3) the installation was done by a representative of Brampton Hardwood rather than by an independent third party contractor.

GOVERNING PRINCIPLES

7Section 31 of the Courts of Justice Act provides that:

An appeal lies to the Divisional Court from a final order of the Small Claims Court in an action.

(a) for the payment of money in excess of the prescribed amount, excluding costs; or

b) for the recovery of possession of personal property exceeding the prescribed amount in value.

8Section 4 of the Limitations Act, 2002, S.O. 2002, c. 24 states that “a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.”

9Section 5 of the Limitations Act, S.O. 2002, c. 24 sets out when a claim is discovered, as follows,

5 (1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

10In Sampson v. Empire (Binbrook Estates) Ltd., 2016 ONSC 5730 at paras. 37-44, Glithero J. noted the following:

The first factor relating to the discovery of a claim commences on the day on which the person with the claim first knew that the “injury, loss or damage had occurred”. Once a plaintiff knows that some damage has occurred then the claim has been discovered and it is not required that the plaintiff know the extent of the damage or the exact type of damage: Peixeiro v. Haberman, 1997 325 (SCC), [1997] 3 S.C.R. 549 at para. 18.

It is sufficient if the plaintiff knows “enough facts on which to base an allegation of negligence”, or I would add breach of contract, and the plaintiff is not required to know all the facts supporting the claim in order for it to be discovered: Lawless v. Anderson, 2011 ONCA 102 at para. 23. That case also stands for the proposition that the plaintiff need not know the precise cause of the damage. Rather, additional information supporting the claim may be useful in assessing whether or not to proceed, but is not necessary in order to “discover” the claim: see also Howden Power North America Inc. v. A. Swent & Sons Ltd., 2009 72090 at paras. 50-51.

As to ss. (iii), the statute does not require certainty of the defendant’s responsibility for the act or omission giving rise to the claim, and rather it is sufficient if there be shown prima facie grounds to infer the act or omission to be that of the other party: Gaudet v. Levy (1984), 1984 2047 (ON SC), 47O.R. (2d) 577 (H.C.); Kowal v. Shyiak, 2012 ONCA 512 at para. 18.

The jurisprudence also establishes that ongoing communications or further investigations as between the parties do not extend a limitation period. Future negotiations do not deflect the application of a limitation period, once the claim has been discovered, even if they serve to discourage the plaintiff from commencing an action, provided that the plaintiff is not prevented from starting an action. The fact that a defendant assists in attempting to rectify a problem does not postpone the running of the limitation period: Four Seasons Site Development v. City of Toronto, 2015 ONSC 2293 at para. 13; Chang v. Boulet, 2012 ONSC 6382 at para. 59; Hamilton (City) v. Metcalfe & Mansfield Capital Corporation, 2012 ONCA 156 ; Cargojet Airways v. Aveiro et al, 2016 ONSC 2356 at paras. 40-43; Markel Insurance Company of Canada v. ING Insurance Company of Canada, 2012 ONCA 218 at para. 34.

(emphasis added)

11Engaging in negotiations to obtain recovery of the loss caused by an alleged breach of contract or seeking to remedy does not stop the limitations “clock” from running: see Chong v. Boulet, 2012 ONSC 6382, at paras. 59-60; Toronto Standard Condominium Corp. No. 1789 v. Tip Top Lofts Development Inc., 2011 ONSC 7181, at paras. 19-24.

ANALYSIS

12This appeal raises the following issues:

(1) What is the appropriate standard of review?

(2) Did the learned Deputy Judge err in law in failing to find that Ms. Iamarino’s action was statute barred?

What is the appropriate standard of review?

13Pursuant to Housen v. Nikolaisen 2002 SCC 33, [2002] 2 S.C.R. 235 (S.C.C.) the standard of review on a question of law is correctness, while that on questions of fact is palpable and overriding error. On questions of mixed law not fact, the standard of review is correctness where there is an extricable legal principle. However, with respect to the correct legal principles being applied to the evidence the standard of review is palpable and overriding error.

Did the learned deputy judge err in law in failing to find that Ms. Iamarino’s action was statute barred?

14The learned Deputy Judge noted the following in his Reasons for Judgment:

99I accept, however, the plaintiff’s submissions that the clock did not start to run on September 14, 2012. Negotiations between the parties continued after that date. On October 16, 2012, Puchiele promised to speak to Nika, a person who he referred to at that time as being someone who occasionally worked at Brampton Hardwood. Puchiele advised that he would ask Nika to try to resolve the issues.

100Adrian and Soko made some efforts to rectify the work into November, 2012, but, as noted by the time of the plaintiff’s November 16, 2012 email, Nika had since advised the plaintiff that he was not going to do anything further.

101For a year or so after that time the problems with the plaintiff’s floors continued to worsen as the flooring warped and cracked.

102As a result, I do not find that the plaintiff’s claim is out of time as negotiations were ongoing, efforts were being made to rectify the problem, and Brampton Hardwood itself was trying to determine the status of Nika as either being an employee or not.

15The crux of the learned Deputy Judge’s decision is that the limitation period did not begin on September 14, 2012 or before, because negotiations were ongoing and efforts were being made to remediate the problems caused by the installer. To that extent, the learned Deputy Judge erred in law given the jurisprudence that ongoing communications or efforts to remediate defective work does not extend a limitation period. Ms. Iamarino first knew of the damage or defective work as early as August 28, 2018 and, given her cancellation of a cheque to the installer on September 14, 2012, clearly knew that the defective work was done by the installer. As the Supreme Court noted in Peixeiro v. Haberman, 1997 325 (SCC), [1997] 3 S.C.R. 549 at para. 18, once a plaintiff finds out that some damage has occurred, then the claim is discovered and it is not required that the plaintiff/respondent know the full extent of the damage or the exact type of damage.

16Counsel for the respondent submits that the learned Deputy Judge made a factual determination that the limitation period commenced on November 16, 2012 and that damages got worse after September 14, 2012. He submits that given these factual findings, the standard of review is palpable and overriding error; rather than correctness.

17This factual determination, however, was based on an erroneous interpretation of section 5 of the Limitations Act and is clearly an error of law rather than one of fact. The section does not require a person to take a “wait and see” attitude to determine the full extent of the damage before starting a claim against the person or persons responsible for the damage. The facts of this case clearly establish that on December 14, 2012, Ms. Iamarino became sufficiently concerned about the numerous defects in the work being done that she cancelled a cheque paid to the installer.

CONCLUSION

18The appeal is allowed and the trial judge’s decision is set aside.

COSTS

19The Appellant claims costs in the amount of $6,220 on a partial indemnity basis. Counsel’s hourly rate of $160 is not unreasonable given his 2015 year of call. However, this was a relatively uncomplicated matter which did not require a sufficient degree of preparation. As a result, costs fixed in the amount of $3,000 inclusive, are fair and reasonable in this matter.

André J.