Court of Appeal for Ontario

CITATION: Fermar Paving Limited v. 1471872 Ontario Inc. (Downsview Group), 2015 ONCA 461

DATE: 20150622

DOCKET: C59780

BEFORE: MacFarland, Rouleau and Lauwers JJ.A.

BETWEEN

Fermar Paving Limited

Plaintiff

(Appellant)

and

1471872 Ontario Inc. c.o.b. “The Downsview Group”

Defendant

(Respondent in Appeal)

COUNSEL:

Charles C. Chang, for the appellant

Adam Stephens and Alexandra White, for the respondent The Downsview Group

Heard and released orally: June 17, 2015

On appeal from the judgment of Justice Dale F. Fitzpatrick of the Superior Court of Justice, dated November 25, 2014.

ENDORSEMENT

[1] We agree with the trial judge’s finding that the appellant’s claim was discoverable in October 2009 when it received the Arborist Report. It knew then that Downsview’s work was substandard and it was not going live up to its contractual obligations. It provided a copy of that report to Downsview who ignored it for a year and then wrote to the appellant essentially indicating that it would not carry out the work identified in the report but would do some additional work as specified in its letter, which could only be described as meager compared to the scale of the work contemplated by the Arborist Report.

[2] It was after receipt of that letter from Downsview that Fermar retained Fusillo Group to carry out the work that Downsview had contracted but refused to do. Yet Fermar did not commence its action against Downsview until March 1, 2012.

[3] In our view, any actions were required to be taken within two years of the receipt of the Arborist Report and the appeal is dismissed.

[4] On agreement of counsel, costs to the respondent on a partial indemnity scale fixed in the sum of $12,000 inclusive of disbursements and HST.

“J. MacFarland J.A.”

“Paul Rouleau J.A.”

“P. Lauwers J.A.”