Court of Appeal for Ontario

CITATION: Lockett v. Boutin, 2011 ONCA 809

DATE: 20111220

DOCKET: C53673

Cronk, Lang and Watt JJ.A.

BETWEEN

Fred Lockett, Gisèle Lockett, Allan Tyler, Carol Tyler, Donna Graham, Gary Susick, Bryan Richards, Debra Richards, Alan Hardisty, Patricia Hardisty, Nicholas Gouskos, Louise Gouskos, Dawn Litvin, Marie Lamoureux, Mark Henderson, Lisa Henderson, Roland Desjardins, Colombe Desjardins, Alex MacDonnell, Ann MacDonnell, Bates Campbell, Carolyn Campbell, Joseé Carrière, Christian Bertrand, Steven Barton, Gerald Pilon, Betty Pilon, Timothy McRae, Lorne Savage, Everrett Arthurs, Gilbert Paquette, Caroline Duval, Patricia Groulx, Rudy Barton, Ross Rodgers, Fay Rodgers, Janique Séguin and Louis Séguin

Plaintiffs (Appellants)

and

Mario Boutin, Riverside Plumbing & Heating 1995, Climec Residential Inc., and Gray Hawk (1991) Co.

Defendants (Respondents)

Gerald E. Langlois, Q.C., for the appellants

David A. Zuber and Sameer Sandhu, for Enbridge Gas Distribution Inc.

Heard: December 8, 2011

On appeal from the order of Justice Paul F. Lalonde of the Superior Court of Justice, dated June 23, 2011, with reasons reported at 2011 ONSC 2098.

ENDORSEMENT

[1] On October 2, 2006, a gas leak in Mr. Boutin’s water heater led to an explosion that damaged his house as well as the houses of many of his neighbours. Mr. Boutin and his neighbours faced a two-year limitation period for claims arising from the explosion.

[2] On October 1, 2008, some of the affected homeowners, including Mr. Lockett, commenced this action against Mr. Boutin as well as certain companies that had installed and serviced the hot water heater.

[3] On November 7, 2008, counsel for the appellants received a copy of a statement of claim issued on September 29, 2008 by Mr. Boutin and other of the affected homeowners. The Boutin statement of claim named the same services companies as defendants. However, it also named Direct Energy Marketing Ltd., Enbridge Services Inc. and Enbridge Gas Distribution Inc. as defendants. The Enbridge companies were alleged to have warranted the hot water heater and to have failed to ensure its proper installation and repair.

[4] For the purpose of calculating their limitation period, the appellants’ counsel decided their receipt of the Boutin claim was the date upon which they “discovered” that the appellants may have had a potential action against Direct Energy and the Enbridge companies.

[5] On June 18, 2010, the appellants moved to add Direct Energy and the Enbridge companies as defendants. Direct Energy and Enbridge Services consented to the motion, provided they had leave to raise the limitation defence at trial. However, Enbridge Gas resisted the motion on the basis that the appellants’ claim against it was barred by the expiry of the applicable two-year limitation period.

[6] The original supporting affidavit on the motion came from appellants’ counsel’s legal assistant. It contained no evidence of any due diligence in identifying the Enbridge companies as potentially liable defendants in the initial two-year limitation period.

[7] The legal assistant filed a supplementary affidavit. However, the supplementary affidavit only stated that the assistant was not convinced by the Boutin claim of the Enbridge companies’ involvement, and that they only became aware of a possible claim from information obtained at discoveries in late 2009 and early 2010, including that the persons who performed the maintenance on the hot water heater were trained by or acted as agents of the Enbridge companies. The legal assistant’s affidavit contained no reference to any steps taken in the two years preceding October 2, 2008 to identify the ownership of and responsibility for the hot water heater and its installation and maintenance. Finally, the affidavit did not annex copies of the expert reports that were said to have formed the basis for the appellants’ decision not to add the Enbridge companies as parties to the original statement of claim. It also did not state when these expert reports were received and reviewed in the initial two-year period.

[8] Thus, in light of the record before the motion judge, there was no evidence of any effort by the appellants, prior to the expiry of the limitation period, to determine the identity and potential liability of the persons who owned, supplied, installed or maintained the water heater. In these circumstances, the motion judge was entitled to conclude that the appellants had failed to demonstrate due diligence and to dismiss the motion due to the expiration of the two-year limitation period. The appeal on this issue cannot succeed.

[9] The appellants raise a second issue, which is resolved on consent. Counsel agree that the motion judge erred in failing to grant a consent amendment to the amount of damages claimed by the appellant Lockett. In accordance with that consent, paragraph 1 of the motion judge’s order of June 23, 2011 is set aside and replaced with an order amending the statement of claim to increase the amount of the Lockett claim for damages by the additional amount of $137,446.40 for a total of $205,373.81.

[10] Enbridge Gas is entitled to costs of the appeal, fixed in the agreed amount of $7,500, inclusive of disbursements and all applicable taxes.

“E.A. Cronk J.A.”

“S.E. Lang J.A.”

“David Watt J.A.”