Fu v. Styrok Inc., 2023 ONSC 1792

Liya Fu v. Styrok Inc., 2023 ONSC 1792

Court File No.: CV-21-00666973-0000 Date: 2023-03-17 Superior Court of Justice – Ontario

Re: Liya Fu, Plaintiff And: Styrok Inc., Defendant

Before: Vermette J.

Counsel: Tung-Chieh Wu, for the Plaintiff Broghan Masters, for the Defendant

Heard: August 26, 2022

Endorsement

1The Defendant moves for summary judgment and for an order dismissing the Plaintiff’s claim on the basis that it is out of time and statute-barred pursuant to the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (“Act”).

2The Plaintiff’s position is that her action is not statute-barred because this case involved a continuing breach of contract and/or an anticipatory breach of contract (i.e., repudiation) by the Defendant which was not accepted by the Plaintiff until late 2021.

3In my view, this case involved neither a continuing breach of contract nor an anticipatory breach of contract. As discussed below, I conclude that this action was commenced after the limitation period had run.

4All excerpts from e-mails and documents reproduced in this Endorsement are quoted verbatim. For reasons of readability, I have not inserted “[sic]” when there were spelling or grammatical errors in the quoted text.

A. Factual Background

1. The parties and the contract

5The Plaintiff is the registered owner of a residential property located in North York, Ontario (“Property”). Because of language issues, most of the written communications sent on behalf of the Plaintiff in this case were sent by her daughter, Danlu Ma. The Plaintiff provided affidavit evidence [1] and was cross-examined.

6The Defendant is a corporation incorporated pursuant to the laws of Ontario. It is a designer, manufacturer and installer of custom wall panels, accents and mouldings for residential projects. It develops custom 3D designs, prefabricates the material and installs the material at the project. The Defendant’s principal is Stephen Coliviras. The Defendant’s affidavit evidence on this motion was provided by Christina Coliviras, the Defendant’s chief operating officer and in-house counsel. Ms. Coliviras was cross-examined.

7On August 9, 2016, the parties entered into a contract to supply custom limestone panels and to design, manufacture and install custom prefabricated panels, mouldings and accents at the Property (“Contract”). The Contract set out two “job scopes”: (1) “Job Scope For Stone” for a total price of $25,816.00; and (2) “Job Scope For Styrok” for a total price of $181,000.00. The Contract stipulated that “[t]he project construction shall follow the attached file ‘Project Plan’.” The attached Project Plan included a construction schedule, designs, and detailed drawings. The construction schedule was over a three-month period and contained the following note: “This is a projected timeline based on the proposed deliverables. Please note that weather can affect the onsite components.” [2]

2. 2017 communications and events

8On July 6, 2017, the Plaintiff and the Defendant agreed that the Defendant would no longer handle the natural stone installation and the Plaintiff would arrange for other suppliers to do that work.

9On July 18 and 19, 2017, the Plaintiff’s daughter sent two e-mails to Mr. Coliviras which both contained the following paragraphs:

As we agreed on the meeting last Thursday (July 6, 2017):

1. The scope of work for the natural stone, your company will be detained the stone cost and returned the reaming money that owner paid. And the owner will hire another supplier the do the stone part of the work.
2. The scope of work for the Styrok, your company will provide the construction schedule to the owner, and start construction work as soon as possible according to the contract.

However, the owner have not received anything from your company until now, in order to avoid more losses, please be sure to make the progress or actual action before the weekend, otherwise your company will be liable for all related owner’s loss, etc.

10The last day on which the Defendant performed any work at the Property was August 10, 2017. On that day, the Defendant issued an invoice in the amount of $97,370.00 for the work that had been completed. The invoice was attached to an e-mail from Mr. Coliviras to the Plaintiff which stated the following:

As per attached invoice more than 40 % of the job for the project located at [the Property] is done { All the Design, Gcodes for the pieces, molds, and forms, etc}; You have been repeatedly notified of the requirement to provide us with the respective progress payment of the above-mentioned job which is estimated at 30% of the total amount; However, this has not happened yet.

As such we want you to take the notes below into consideration if you wish the project to continue with Styrok as per contract:

• submitting payment of 30% of the project amount as per contract.
• The introduction of a construction savvy supervisor to be dealing with Styrok crew directly rather than direct involvement of the homeowner.
• As per our discussion, you can credit 18$ per sqft towards stone installation which equals to a total of $12,600 which can be paid directly to the stone installer against the overall contract. [ It is worth to mention that this was deemed necessary as the assigned subcontractor found it impossible to complete the job under the condition imposed by the home owner, which resulted in a damage invoice issued by the subcontractor to Styrok for the lost man day for 4 crews and company set up cost)
• Settling an outstanding balance of $800 for the metal plate which was welded to the garage door opening.
• Schedule of the project will be provided only if all the listed issues are resolved and agreed upon.

We request your immediate attention to the points listed above so that the job can proceed as scheduled.

11The Plaintiff responded to the Defendant’s e-mail on August 18, 2017. She stated the following:

Styrok Inc. and the owner signed the Construction Contract on August 9, 2016. The owner strictly fulfills all the terms of the Contact from the beginning till now. However, Styrok Inc. has repeatedly breached the contract:

1. The Construction Contract specifies that “30 days to complete the decoration design, ... ... 50 days to complete the natural stone installation after received the second natural stone payment, ... ... all construction including Styrok work should be completed within 3 months ... ... “. However, Styrok Inc. has not provided a complete design drawing to the owner yet. The natural stone was not shipped to the site until November 2016. And since the owner paid $7293.02 (25%) on November 21, 2016, the owner has repeatedly urged the related construction progress for more than six months and was left in vain. Styrok Inc. always shirks for a variety of reasons: for example, once Styrok Inc. said that the government did not allowe to use the Hungarian natural stone, and another time claimed that Syrok Inc. needed to find the factory to cut the narrow stone and so on, full of excuses.
2. Even though the owner repeatedly asked Styrok Inc. to continue the construction as soon as possible, Styrok Inc. ignored the fact that the owner had paid the cost for more than six months and did not resume the work. In addition, Styrok Inc. made an unreasonable request of additional $10,000 before resuming the construction. […]
3. On July 6, 2017, Styrok and the owner agreed that Styrok Inc would no longer handle the stone installation and the owner would arrange other suppliers to do the natural stone installation, given the installer commissioned by Styrok had left the site, etc.

It has been over one year since the Construction Contract signed. Given the weather is turning cold, to avoid additional loss, the owner will arrange and finish the nature stone installation as soon as possible. The owner will install the stone following the instructions from Mr. Steven’s phone call to Danlu Mao on August 16. And Styrok Inc. shall also arrange the Styrok design, production and installation work as soon as possible without further delay, otherwise the loss to the owner could be invaluable and the owner will pursue the legal liability.

5. The owner believes that both parties shall fulfill all the terms in the Construction Contract and respect the facts. Styrok Inc.’s e-mail on August 10, 2017 made payment requirements, stone installation costs, and asked the owner to send managers and other requirements. These requests are inconsistent with Construction Contract, and do not corresponds the facts, therefore the owner firmly opposes to the requests. Moreover, Styrok Inc. should refund to the owner. In order to not affect the installation work, the refund can be discussed at a later time, but the Styrok and owner must resume construction work immediately.
6. The following issues about the loss incurred: (since Styrok Inc. mentioned about the cost issue, the owner will not ignore the loss issue.)

12Christina Coliviras’ evidence regarding the contractual relationship between the parties after August 2017 was as follows:

Q. So, it means you acknowledge there was still an existing contract after August 10th, 2017?

A. All I can say is that we said that we need new terms to be introduced. We need to renegotiate the terms of the contract with respect to pricing and with respect to an introduction of a project manager. We did not use the language “terminate”, and we did not provide a formal termination, but we did introduce new requirements that were not part of the original contract.

Q. So, you mean you ... Styrok tried to renegotiate a new term of contract, is it correct?

A. Yes, we have asked on a number of occasions that we would need certain things in order to continue, and we did not continue without those things.

Q. Has the party in the end agree on any new term of contract?

A. No, we articulated our requirements as early as August of 2017, and we continued to articulate those same requirements, and Ms. Fu and her daughter continued to refuse to meet those requirements since then.

13On October 22, 2017, the Plaintiff sent the following e-mail to the Defendant:

The owner has repeatedly brought up the issues about Styrok Inc.’s breach of the contract, and the owner requested Styrok should continue the construction in accordance with the contract as soon as possible through the emails (dated August 18, 2017 and October 3, 2017) and other previous e-mails, phone calls and text messages. According to the agreement, the owner would take overthe front wall natural stone installation work and the owner had completed this work. However Styrok Inc. has made no progress for more than a year as today. Another winter is coming soon, therefore Styrok’s work must be carried on without any additional delay; otherwise the owner will suffer a heavier loss. The owner once again reiterated the request that Styrok Inc. must started in progress for the panel installation work before the end of this weekend during the last meeting.

Styrok Inc. still has not completed the styrok panel installation work as today. To avoid additional delay of the construction, the owner will arrange other suppliers to complete the east, west and back wall panels work (use natural stone or other material panel). Styrok Inc. will be liable for all the loss as the result. And Styrok Inc. shall arrange work for custom fabricated molding, custom fabricated Soffit and other related work as soon as possible, and the total cost shall be reduced to $117500, aka $181000 (contract total price) minus $63500 (east, west and back wall work price).

14In October, November and December 2017, Mr. Coliviras exchanged text messages and e-mails with the Plaintiff’s daughter. Mr. Coliviras indicated in his messages that the Contract needed to be amended prior to the Defendant starting the work. The Plaintiff’s daughter stated that the Plaintiff would not agree to make any changes to the Contract and insisted that the terms of the Contract, including prices, had to be complied with. She also stated that the Defendant would be liable for the Plaintiff’s losses because of delay.

15A meeting was scheduled in late December 2017. Mr. Coliviras stated the following in an e-mail to the Plaintiff’s daughter sent on December 18, 2017: “I need to be clear in meeting before I proceed.”

3. 2018 communications and events

16Christina Coliviras gave the following evidence during her cross-examination regarding the work done by the Defendant in 2018:

Q. Has Styrok continue to provide some kind, for example, design dimension in 2018 ...

A. So…

Q. … for the work to Ms. Fu?

A. So, there were some minor dimensions that were given to Ms. Fu at her request, and there was also some design modifications that were made, and the final designs were e-mailed at the request of Ms. Fu to her and her daughter. I believe it was her and her daughter, it might have just been Dan Lu, in March of 2018. No further design work or any other work was done after that date.

17On March 21, 2018, Mr. Coliviras sent an e-mail to the Plaintiff’s daughter attaching the final design for the Property’s accents.

18On March 27, 2018, the Plaintiff’s daughter sent a text message to an employee of the Defendant asking how the design modification was going and stating that she was hoping to get it as soon as possible. The employee responded that he would do his best to do it as soon as possible.

19Various text messages and e-mails were exchanged by the parties in April and May 2018 regarding, among other things, measurements and dimensions.

20On May 29 and June 6, 2018, the Plaintiff’s daughter sent e-mails to Mr. Coliviras asking for a schedule for the project and pointing out that they had been asking for one for almost half a year but had received no response. On June 14, 2018, the Plaintiff’s daughter sent the same request in a text message. In response, Mr. Coliviras asked whether any of the issues that he had pointed out had been addressed. He wrote:

Danlu I need a project manager to deal with I have been asking for ever

I know that no skedule can be kept with as much interference that comes from you

I will start at a slow pace next week to see if you’re going to let us do any work or not

That’s all I can say

I will not book crews and lifts only to send them home again

I will start Monday 1 or 2 accents to be carved and coated

And see how it goes

21On June 17, 2018, the Plaintiff’s daughter sent an e-mail to the Defendant asking for the dimensions for the soffit. Mr. Coliviras sent them on June 19, 2018, but he indicated that the dimensions were not final and may change on site.

22On June 19-20, 2018, the Plaintiff’s daughter and Mr. Coliviras exchanged e-mails regarding some framing work to be done. Mr. Coliviras sent the following e-mail on June 20, 2018:

Did you remove the stone I asked for? How are going to do the framing? Are we coming there to be faced with either leaving and waiting the day or doing the removal of the stone which is not our job or problem

If you had a project manager he would be accountable

For site

I will drive by in the morning to see the situation

23The Plaintiff’s daughter replied that the stone would be cut during the weekend.

24On June 26, 2018, Stephen and Christina Coliviras attended at the Property to meet and discuss with the Plaintiff. Ms. Coliviras described the purpose of this meeting as follows during her cross-examination:

Q. Could you tell me, what is the purpose of the site visit for you and Stephen on June 26th, 2018.

A. So, we went there to discuss a number of matters, including the ... we did bring a sample, a flower sample there. That flower sample was an unfinished carving that had been prepared well before, in 2017, and was in our factory, and it is still unfinished to this day.

We also went to discuss a number of other issues, including the price increase and the scope of work and renegotiating the contract. So, we did attend the site, but the purpose of that visit was to see if we could move forward and to renegotiate the terms in a way that worked for us.

25In early July 2018, the Plaintiff and the Defendant exchanged e-mails about the installation of pot lights and coordination with the Defendant’s work. Mr. Coliviras provided some information in response to the Plaintiff’s e-mails, but he also indicated that unless all issues discussed during the site meeting a few weeks earlier were addressed, the Defendant was not starting work.

26On July 8, 2018, the Plaintiff sent an e-mail to Mr. Coliviras which read, in part:

A. According to the contract’s construction period, Styrok has delay the work for over two years. Due to the delay, styrok caused great losses to the owners, which made the following work impossible to continue, especially the issues are as followed:

1. Due to the delay of for dormer roof inner surface, soffit, fascia and gutter work, Hydro refuses to do the main power connection for the house, which cause the temporary power pole could not be removed, the grading work and the security system, and other works have to be wait. And the gutters work by owner couldn’t install before the soffit and fascia work done.
2. Due to the balconies’ and the columns’ wood frame work by Part B still haven’t started yet, the owner is not able to continue the work including Insulation, Drywall, etc. There will be an inestimable loss for the owner.

B. Must preform the contract, the owner will never agree to any unreasonable requirements from styrok any longer, i. e.:

Styrok shall do the measurement on site and complete the whole design and start styrok work for dormer roof inner surface (start from southwest), soffit, fascia, etc. as per the contract without any condition next week. Then the owner could do the main power connection and other following works. Otherwise, styrok must be liable for all loss and the owner reserves the right to take legal actions against styrok.

27On July 17, 2018, the Plaintiff’s daughter sent the following e-mail to Mr. Coliviras:

We complete the stone panel installation for the house for very long time, and since you still didn’t start your work until now, the water will leak in to the space between window and stone which will cause the stone issue or come off. Styrok will liable for the issues and lost for the owner.

28Mr. Coliviras sent a lengthy response the following day. His e-mail read, in part:

I want to clarify a few things over email since the countless phone calls we have had to date have gotten us nowhere.

As I have stated on many occasions, we have requested multiple times that you hire a project manager on site that we can communicate with. To date, there is still no one on site that speaks sufficient English that we can understand and communicate with about what we need and when we need it in order to do our job. The delays that you speak of are entirely related to this specific issue which you continue to ignore.

I remind you that we have prepared at least 5 sets of designs for the entire project totaling many many hours of a very costly design process because of this specific issue. On many occasions, we are asked to design and provide drawings for processes that throughout the industry, happen on site ( not in advance because there are certain measurements that may change once the process begins and cannot be accurately pre-planned to the degree that you continuously demand).

Despite the fact that I have tried on many occasions to explain this to you, these unreasonable requests continue, which leads me to believe that you continue to make them to either to attempt to extract additional unpaid services from me or perhaps to justify holding back portions of our payments.

Almost every meeting we have had (and there have been many) has been done after hours or on weekends, with multiple time changes, because either 1, 2 or 3 members of your family cannot attend during the agreed upon time and/or during business hours.

We are in business to do projects. It has become abundantly clear to me that, with this project, as soon as we have one issue resolved, you will continue to change, demand, modify, ask to see a drawing for every single step for something else. Your complete lack of understanding of this industry and your unreasonable demands have made this project only a potential monetary loss.

I have tried to explain the processes required for many aspects of your project to you, but it is not my job to educate you on how to go about building your house. Again, this is the job of an experienced project manager, which you are not. You are trying to build a casa loma and no one knows what they are doing and you are expecting me to do it at a loss and blaming me for delays caused by your mismanagement.

To summarize, as I have tried to convey countless times on the phone ... all of the delay and issues that you express with the way we have carried out our work could have been easily solved by hiring an experienced project manager to be on site who understands the industry and process, who will not unreasonably interfere with my process and who will not make completely unreasonable requests without any consideration of the time or resources it requires to fulfill them. [Emphasis in the original.]

29On September 9, 2018, the Plaintiff’s daughter asked that Mr. Coliviras send a picture and size of a casted moulding. She stated that it would be picked up after it was confirmed that the size was correct. Mr. Coliviras sent the picture and measurement on September 11, 2018. The Plaintiff’s daughter responded that the size was not right and asked that the correct casted moulding be delivered before September 14, 2018, but Mr. Coliviras refused to make any changes and pointed out that the parties had “been designing and meeting for a year now”.

30There were no “substantive” communications from the Defendant after September 2018.

4. 2019 communications and events

31The record before me contains very few communications sent in 2019 and they do not include any from the Defendant.

32On June 6, 2019, the Plaintiff’s daughter sent the following e-mail to Mr. Coliviras:

According to the contract Styrok shall complete all the work no later than end of Octuber 2016. And the moldings of Styrok only take 44 days to complete. However, it’s been more than 1030 days, Styrok has not made any progress for the work. The owner made payments on time by the contract and urged Styork Inc to proceed construction many times. However, Styrok Inc. always make various excuses to delay the construction schedule. And the further delays will cause more losses to the owners, what time styrok can start the work? When Styrok could finish the work?

33On August 15, 2019, the Plaintiff sent another e-mail to Mr. Coliviras:

You have used various excuses to delay the work on my house, despite the fact that we have a binding contract. You advised my lawyer Yi Zhou during your telephone conversation the other day that you needed to increase the contract price to commence the work, despite the fact that we have a binding contract with the fixed costs. As a result of your breach of contract, I will hire another contractor to complete the work in order to mitigate the loss caused by your breach. Since you refused to honor our contract, you are hereby demanded to return the deposit of $73,011.56 with interest at 18% per annum forthwith. Failing such, I will seek remedies available to me. I will also seek damages due to the increases in construction costs as a result of your breach of the contract. Failure to comply with the contract or refund the deposit with interest within 48 hours, complaints will be filed with industry relevant departments and organizations on the basis of what has transpired.

5. 2020-2021 communications and events and commencement of this action

34The record before me contains very few communications sent in 2020. All the communications were sent in December 2020. At that time, text messages and e-mails were exchanged by the parties about organizing a meeting to negotiate and discuss the Defendant’s conditions to continue the work.

35On February 16, 2021, the Plaintiff’s daughter sent the following e-mail to Mr. Coliviras:

Since the contract came into effect on August 9th, 2016, between the owner Liya Fu (henceforth “Party A”) and Styrok Inc. (henceforth “Party B”), in accordance with the contract Party A has paid, to date $73,011, which is 62.4% of the Mouldings project cost. However, as of today which has been nearly five years, there has been no site work commenced on this project. Party B has repeatedly orchestrated delays, committed fraud, made countless unreasonable requests, as well as continuously ignoring reminders and communications from Party A. All the above has caused great difficulties to Party A, not limited to physical, mental, and financial loss.

The breach of contract by Party B and the losses caused to Party A had been explained before, so it is not necessary to repeat again. However, as time goes by, the Party A’s losses have increased more and more in all aspects, and the cost for materials and labor is continuing to rise. In order to avoid the increasing losses, Party A decided to notify Party B for the last time. If Party B does not give a response for the construction before the February 19, 2021, Party A will hire others to carry out the construction. Party B will be liable for all losses and price differences (including the cost difference due to failure to find same products as Party B’s product, have to order the substitution of other materials, and the increase cost in materials and labor, etc.). And Party A will file a lawsuit and pursue all the compensation and liability.

36The parties met at the Defendant’s office on February 22, 2021, and March 3, 2021. The Defendant’s position, which I accept, is that these meetings were held on a without prejudice basis. [3] Ultimately, the parties did not reach an agreement.

37There was another meeting on July 15, 2021. Again, no agreement was reached. It is clear that, among other things, the Defendant was not prepared to proceed based on the original pricing in the Contract.

38The Plaintiff issued a Notice of Action on August 11, 2021. It states, in part:

The Plaintiff’s claim mainly is for the breach of the contract by the Defendant. The Plaintiff and the Defendant signed a contract on August 9, 2016 (the “Contract”) to perform construction work on the property located at […]. The Defendant failed to commence and complete the work within the contract time provided by the Contract. The Defendant always made various excuses to seriously delay the construction schedule and has breached the Contract. Such serious delay constituted a fundamental breach of contract and has caused the Plaintiff to incur substantial damages, financial losses, and economic damages and losses. Despite the Contract was a lump sum contract and a fixed price contract, the Defendant also repeatedly requested to increase the contract price without justification. [Emphasis added.]

39The Plaintiff’s Statement of Claim is dated September 9, 2021. The Plaintiff claims: (a) the return of construction payment in the amount of $73,011.56; (b) damages in an amount to be particularized before the trial but thought to be approximately $800,000.00; (c) special damages, the particulars of which to be provided prior to the commencement of trial; and (d) punitive, aggravated and exemplary damages in the amount of $20,000.00.

40The Statement of Claim includes the following paragraphs:

10. The Contract called for top quality work and incorporated completion dates within a construction schedule as specified in the Project Plan in the Contract agreed by the Parties. The Contract was a lump sum contract and the contract price includes design, material supply, material fabrication, delivery, and installation.

11. According to the Contract, the Defendant was obligated to complete the Work within 3 months of the execution of the Contract. However, the Defendant failed to make any real efforts to meet the contract schedule by failing to perform and complete the Work over 5 years.

12. After the execution of the Contract, the Defendant came to the site to prepare the walls for Styrk panel installation. However, up to October 2017, the Defendant still did not complete the Styrok panel installation work and the Defendant made no progress for more than a year at that time. To avoid additional delay of the construction and losses, the Plaintiff requested the Defendant to continue the construction in accordance with the Contract as soon as possible. Otherwise, the Plaintiff would have to arrange other suppliers to complete wall panels work.

13. In October 2017, due to the constant and extreme delay of the Defendant, the parties agreed to delete the Styrok panel work from the Contract. The Defendant was still obligated to complete the remaining Styrok work except the panel work as soon as possible without any additional delay. The remaining scope of work includes but not limited to custom fabricated mouldings, custom fabricated soffit and all other works according to the Contract. The Plaintiff hired a contractor to complete the panel work in May 2018.

14. The Contract was a lump sum contract and a fixed price contract. However, after the signing of the Contract, the Defendant repeatedly requested to increase the contract price without justification. Despite the Plaintiff sending numerous notices of serious delay of the Work and breach of contract, the Defendant refused to commence or continue to perform the Work, unless the Plaintiff was willing to pay for a new and higher contract price. The delay caused by the Defendant was inexcusable delay.

15. No matter how many times the Plaintiff requested the Defendant to provide updated construction schedule, the Defendant did not comply with request.

16. No matter how many times the Plaintiff requested the Defendant to provide complete design, the Defendant did not provide the final complete design.

17. In June 2018, the Defendant made another unreasonable request that for every completed window frame, the Plaintiff had to pay additional $2,000.00. Otherwise, the Defendant would refuse to do the work.

18. The Defendant only provided a soffit sample with the Plaintiff and the Plaintiff found the soffit was not right size. The Defendant’s work gave no value to the Plaintiff. The Defendant also confessed and admitted that some works under the Contract that in fact the Defendant had no capability to perform and complete. The Plaintiff made repeated inquiries regarding the progress and completion. The Defendant had no intent to perform the Work and only asked the Plaintiff to pay additional costs and a higher contract price. The Defendant was in substance unable or unwilling to perform the Work.

19. The Plaintiff further states that due to the failure, neglect or refusal of the Defendant and its employees, servants and agents to perform the Work in a timely manner, the Plaintiff has suffered damages and was unable to move in the Property as scheduled. The delay was caused by the Defendant. The extreme delays in performing the Work constitute a fundamental breach of contract. The delays are critical and affect the completion date and the milestone of the Project.

Fundamental breach of contract by Styrok Inc.

32. The serious delay was in law a fundamental or substantial breach of contract. The delay was so fundamental as to deprive the Plaintiff of what it had bargained for. The Plaintiff is entitled to terminate or rescind the Contract.

33. The Defendant did not complete the Work on the Property within the contract time. The Plaintiff submits that the Defendant failed to perform its contractual obligations under the Contract or the amending agreement and is not entitled to the contract price or any payment.

34. Due to the Defendant’s refusal to carry out the contract work, the Plaintiff is entitled to rescind or terminate the Contract, to claim damages for breach of contract, and to be discharged from its obligations to pay including any obligation to pay.

35. The Plaintiff has incurred and continues to incur significant costs in order to remedy the problems caused by the breach of contract and delay of the Defendant.

36. The Defendant in fact has repudiated the Contract by means of unreasonable delay. The substantial breach the Contract by the Defendant has amounted to a repudiation of the Contract. The Plaintiff further states that, by refusing to continue to perform the Work and the failure or refusal to carry out the Work, the Defendant in fact and in substance abandons the Contract, repudiates the Contract, fundamentally breaches the Contract, and the Plaintiff is entitled to terminate the Contract, to claim damages for breach of contract, and to be discharged from its obligations to pay including any obligation to pay on a quantum meruit or for any work performed.

Damages

37. The Plaintiff states that it suffered damages as a result of the breach of contract, delay, misrepresentation, and negligence of the Defendant as described above.

38. The claim is for damages as a result of delay and for all funds paid to alternate contractors to complete the Work as well as costs associated with the delay in completion of the Work and the Project.

Costs of completion

41. The failure of the Defendant to abide by the time schedule, gave the Plaintiff justifiable grounds to rescind or terminate the Contract and to hire alternate contractors to complete the Work. The Plaintiff is entitled to the costs of completing the Work over and above the contract price.

Costs of delay

43. The Plaintiff submits that the Defendant knew throughout that time was of the essence under this Contract and that, solely as a result of delays caused by the Defendant, the construction schedule was held up. As a consequence, the Plaintiff suffered additional costs due to the delayed completion of the Work and Project. The costs of the Project and the costs of the Work increase substantially due to Defendant’s delays in meeting the construction schedule set out in the Contract. [Emphasis added.]

41The excerpts above show that the Plaintiff’s claim is based on delay.

42On September 22, 2021, i.e., almost two weeks after the Statement of Claim was filed, the Plaintiff’s lawyer sent a letter to the Defendant alleging that the Defendant’s serious delay constituted fundamental breach of contract. The letter also stated the following:

Without prejudice to any right or remedy Ms. Fu may have, Ms. Fu requests your company to commence all construction work (all mouldings work and others, except natural stone and Styrok panels only) on or before October 1, 2021 and to complete all construction work (all mouldings work and others, except natural stone and Styrok panels only) on or before November 30, 2021.

If your company fails to commence the work on or before October 1, 2021, your company will be deemed as having abandoned the contract and repudiated the contract. If your company fails to commence the work on or before October 1, 2021, the contract is terminated effective immediately and this letter constitutes a formal notice of termination. Ms. Fu will be left with no choice but to hire alternate contractors to complete the work and to seek damages against your company.

43The Plaintiff served her Statement of Claim on the Defendant or about September 27, 2021. The Defendant served a Statement of Defence and Counterclaim dated November 1, 2021. In its pleading, the Defendant denies that it is responsible for any delay. It states that any changes to the construction schedule, and any damages alleged to be resulting therefrom, were caused by the Plaintiff. The Defendant also pleads that the action is statute-barred pursuant to the Act. The Defendant counterclaims for $53,159.00 plus HST for unpaid amounts owing under the Contract, as well as $15,000.00 for punitive, exemplary and aggravated damages.

44The Plaintiff served a Reply and Defence to Counterclaim dated November 18, 2021. Among other things, the Plaintiff pleads that the counterclaim is statute-barred.

45The Defendant agrees that if the Plaintiff’s claim is out of time, then the Defendant’s counterclaim is also out of time. This is an appropriate and logical concession. I also note that without this concession, the Defendant’s motion would have been a motion for partial summary judgment, which would likely not have met the criteria to proceed as such: see, e.g., Girgis v. Zar, 2022 ONSC 3784 at paras. 29-30.

B. The Parties’ Positions

46The Defendant’s position is that the Plaintiff was aware of her claim for breach of contract as of August 18, 2017, as shown by the e-mail that she sent on that day. The Defendant points out that “some damage” is sufficient for the cause of action to accrue and start the limitation period: see Hamilton (City) v. Metcalfe & Mansfield Capital Corporation, 2012 ONCA 156 at para. 61. The Defendant submits that, at the very latest, the Plaintiff knew by July 8, 2018, that a proceeding would be an appropriate means to seek to remedy her losses as she referred to taking legal action against the Defendant in her e-mail dated July 8, 2018. The Defendant states that there was no agreement to forego the limitation period.

47In the alternative, the Defendant argues that it repudiated the Contract on August 10, 2017, and that the repudiation was accepted by the Plaintiff after the June 26, 2018 meeting. According to the Defendant, the Plaintiff’s acceptance should be inferred from her conduct in light of the circumstances of this case.

48The Plaintiff’s position is that the limitation period did not start to run until October 1, 2021, when she formally accepted the Defendant’s repudiation of the Contract and terminated the Contract. She submits that it cannot be inferred that she accepted the Defendant’s repudiation of the Contract prior to October 1, 2021. The Plaintiff also argues that there was a continuing breach of the Contract on the part of the Defendant because the latter had a continuing obligation to perform. She states that this continuing breach gave rise to a new cause of action and a new limitation period every day that the Defendant failed to perform the work under the Contract.

C. Discussion

1. Whether this is an appropriate case for summary judgment

49On a motion for summary judgment, the court must first determine if there is a genuine issue requiring a trial based only on the evidence in the motion record, without using the fact-finding powers set out in Rules 20.04(2.1) and (2.2) of the Rules of Civil Procedure. There will be no genuine issue requiring a trial if the summary judgment process provides the court with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure. See Hryniak v. Mauldin, 2014 SCC 7 at para. 66.

50A party moving for summary judgment has the evidentiary burden of showing that there is no genuine issue requiring a trial with respect to a claim or defence: Rule 20.04(2)(a). However, each party must put their best foot forward to establish whether or not there is a genuine issue requiring a trial. The court is entitled to assume that the record contains all the evidence that the parties would present at trial: see Toronto-Dominion Bank v. Hylton, 2012 ONCA 614 at para. 5.

51In my view, this is an appropriate case for summary judgment. The documentary evidence, including the e-mails exchanged by the parties, is reliable and, in large part, establishes what happened. I conclude that there is sufficient evidence before the court to fairly and justly adjudicate the issue of the limitation period raised by the Defendant, and that it is appropriate to make dispositive findings on this motion. Providing a timely, affordable and proportionate procedure to the parties is also an important consideration in this case.

2. Relevant provisions of the Act

52Section 4 of the Act states that unless the Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

53Section 5 of the Act deals with the issue of when a claim is discovered. Subsection 5(1) states as follows:

Discovery

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).

3. Continuing breach of contract

54I disagree with the Plaintiff’s position that this case involves a continuing breach of contract.

55In Pickering Square Inc. v. Trillium College Inc., 2016 ONCA 179 at paras. 22-26 (“Pickering Square”), the Court of Appeal discussed the different types of breaches of contract:

[22] In order to determine the discovery date for the claim, the nature of the breach must first be determined.

[23] Breaches of contract commonly involve a failure to perform a single obligation due at a specific time. This sort of breach is sometimes called a “once-and-for-all” breach: it occurs once and ordinarily gives rise to a claim from the date of the breach – the date performance of the obligation was due. Trillium’s breach of s. 16.08 does not fall into this category because its obligation to operate its business was ongoing rather than single and time-specific.

[24] A second form of breach of contract involves a failure to perform an obligation scheduled to be performed periodically – for example, a requirement to make quarterly deliveries or payments. A failure to perform any such obligation ordinarily gives rise to a breach and a claim as from the date of each individual breach: see e.g. Smith v. Empire Life Insurance Co. (1996), 19 CCEL (2d) 171 (Ont. Gen. Div.), leave to appeal refused, [1996] O.J. No. 3113 (C.A.). That is not this case.

[25] As the motion judge found, this case falls into a third category of breach: breach of a continuing obligation under a contract. Trillium breached its covenant to operate its business continuously – “at all times” – for the duration of the lease.

[26] The concept of a continuing breach is not novel. It was outlined by Dixon J. (as he then was) in Larking v. Great Western (Nepean) Gravel Ltd. (in Liquidation) (1940), 64 C.L.R. 221 (HCA), at p. 236:

If a covenantor undertakes that he will do a definite act and omits to do it within the time allowed for the purpose, he has broken his covenant finally and his continued failure to do the act is nothing but a failure to remedy his past breach and not the commission of any further breach of his covenant. His duty is not considered as persisting and, so to speak, being for ever renewed until he actually does that which he promised. On the other hand, if his covenant is to maintain a state or condition of affairs, as, for instance, maintaining a building in repair, keeping the insurance of a life on foot, or affording a particular kind of lateral or vertical support to a tenement, then a further breach arises in every successive moment of time during which the state or condition is not as promised, during which, to pursue the examples, the building is out of repair, the life uninsured, or the particular support unprovided.

The distinction may be difficult of application in a given case, but it must be regarded as one depending upon the meaning of the covenant. It is well illustrated by the construction given to the ordinary covenant that premises will be insured and kept insured against fire. Such a covenant is interpreted as imposing a continuing obligation to see that the premises are insured, so that the covenant cannot be broken once for all, but, on the contrary, failure to insure involves a continuing breach until the omission is made good. [Emphasis added.]

56The type of breach of contract in issue in this case is the first one identified by the Court of Appeal in Pickering Square, i.e., the failure to perform an obligation due at a specific time. As noted by the Plaintiff in her Statement of Claim, the Defendant had the obligation to follow the Project Plan attached to the Contract, which provided that the work would be completed within approximately three months. The Defendant did not complete the work within that time period (or ever), and the parties never agreed on a new construction schedule, despite requests by the Plaintiff that a new schedule be provided.

57The Defendant had no recurring, periodic or ongoing obligations to the Plaintiff under the Contract. The Defendant’s continued failure to do the work under the Contract was, as stated by the Court of Appeal in Pickering Square, “nothing but a failure to remedy [its] past breach and not the commission of any further breach”.

58Accordingly, I find that there was no breach of a continuing obligation under the Contract in this case.

4. Anticipatory breach of contract / Repudiation

59Repudiation occurs when one party indicates its intention not to fulfill any future obligations under the contract: see Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423 at para. 47. It is an anticipatory breach of contract, i.e. one party to a contract, by express language or conduct, or as a matter of implication from what they have said or done, repudiates their contractual obligations before they fall due: see Fram Elgin Mills 90 Inc. v. Romandale Farms Limited, 2021 ONCA 201 at para. 258 (“Fram”).

60An anticipatory breach does not, in itself, terminate the contract. Once the offending party shows its intention not to be bound by the contract, the innocent party has a choice. The innocent party may accept the breach and elect to sue immediately for damages, in which case the innocent party must clearly and unequivocally accept the repudiation to terminate the contract. Alternatively, the innocent party may choose to treat the contract as subsisting, continue to press for performance, and bring the action only when the promised performance fails to materialize. Where the innocent party does not accept the repudiation of the contract, the limitation period does not begin to run until the breach actually occurs. See Fram at para. 259.

61The principles set out above were applied by the Court of Appeal in Ali v. O-Two Medical Technologies Inc., 2013 ONCA 733 (“Ali”). In that case, the Court found that the employer’s unilateral change of an employee’s commission structure in late 2006 was a repudiation of the employer’s contractual obligations. The repudiation occurred before the employer became obligated to pay the employee’s commissions almost a year later, on November 23, 2007. The employee did not accept the employer’s repudiation of contract and continued to press for payment in full. The Court of Appeal concluded that because the employee did not accept the repudiation, the limitation period started running at the time the obligation was originally due in the contract, i.e., on November 23, 2007. The Court of Appeal stated that this was the day on which the employee first knew that damage had occurred. Once that date passed, however, there was no need for the employee to accept the repudiation in order for the limitation period to start running because there was a confirmed breach. See Ali at paras. 26-27.

62The Plaintiff’s allegations in this action are based on delay and do not disclose any anticipatory breach of contract on the part of the Defendant with respect to future obligations under the Contract. Instead of an anticipatory breach of contract, there was simply a breach of contract, i.e., a failure to perform contractual obligations before the performance was due or within the agreed-upon period of time. The Defendant failed to meet the timeline set out in the Project Plan and never completed the work under the Contract, despite numerous directions from the Plaintiff to do so. As stated in the e-mail dated June 6, 2019 sent by the Plaintiff’s daughter:

According to the contract Styrok shall complete all the work no later than end of Octuber 2016. And the moldings of Styrok only take 44 days to complete. However, it’s been more than 1030 days, Styrok has not made any progress for the work. [4]

63Thus, I conclude that the breach of contract based on delay about which the Plaintiff complained in numerous e-mails had already occurred, and there was nothing anticipatory about it. Given that this case does not involve a repudiation, the Plaintiff’s “acceptance” of the breach has no role to play in determining when the limitation period started to run.

5. Start of the limitation period

64While the limitation period very likely started to run earlier, I am of the view that it is clear that the Plaintiff had discovered her claim by July 8, 2018. The e-mail that she sent on that date shows that she knew then that: (i) some loss had occurred; (ii) the loss was caused by or contributed to by an act or omission of the Defendant; and (iii) a legal proceeding would be an appropriate means to seek to remedy her loss. Therefore, all the requirements for the discovery of a claim set out in subsection 5(1)(a) of the Act were met.

65However, the action would be statute-barred even if the limitation period started running later in 2018. Given that the Plaintiff commenced this action by Notice of Action issued on August 11, 2021, the action would be statute-barred if the two-year limitation period started running at any time in 2018 (or earlier). I have taken into consideration the extension of the limitation period during the COVID-19 pandemic: see McAuley v. Canada Post Corporation, 2021 ONSC 4528 at paras. 42-43.

66By the end of 2018: (a) more than two years had elapsed from the time for the completion of the project set out in the Project Plan; (b) more than one year had passed since the last day on which the Defendant performed any work at the Property (on August 10, 2017); (c) more than nine months had elapsed since the Defendant sent the final design for the Property’s accents (in March 2018); (d) more than six months had passed since the June 26, 2018 meeting at the Property; and (e) more than three months had elapsed since the last substantive communication from the Defendant in September 2018. In light of this and the numerous communications from the Plaintiff voicing complaints and repeating that the Defendant would be liable for her loss as a result of the Defendant’s delay and failure to perform, the conclusion that the Plaintiff had discovered her claim by the end of 2018 is inescapable.

67In conclusion, based on the evidence before me, I find that the Defendant has established that there is no genuine issue requiring a trial with respect to the issue of the limitation period, and that the Plaintiff has failed to show that her claim has a real chance of success.

D. Conclusion

68The Defendant’s motion for summary judgment is granted. The action and the counterclaim are dismissed.

69If costs cannot be agreed upon, the Defendant shall deliver submissions of not more than three pages (double-spaced), excluding the costs outline, by March 31, 2023. The Plaintiff shall deliver her responding submissions (with the same page limit) by April 14, 2023. The submissions of all parties shall also be sent to my assistant by e-mail and uploaded onto CaseLines.

Vermette J. Date: March 17, 2023

Footnotes

1I note, however, that the Plaintiff’s affidavit does not comply with Rule 4.06(8) of the Rules of Civil Procedure. The Plaintiff stated during her cross-examination that she could not read in English.

2There has been no suggestion that the weather contributed to the delay that is complained about in this case.

3The Defendant’s position is supported by a picture taken during the March 3, 2021 meeting which is attached to the Plaintiff’s affidavit. The picture shows a document projected on a screen. The following is written on the document: “PRIVILEGED AND CONFIDENTIAL – WITHOUT PREJUDICE OFFER OF SETTLEMENT – DRAFT”.

4The Defendant’s failure to complete the work within three months, as specified in the Contract, was mentioned by the Plaintiff as early as October 18, 2017.