Zeppa v. Woodbridge Heating & Air-Conditioning Ltd.

Indexed as: Zeppa v. Woodbridge Heating & Air-Conditioning Ltd.

Ontario Reports: 144 O.R. (3d) 385 | 2019 ONCA 47

Court of Appeal for Ontario

Judges: Strathy C.J.O., K.N. Feldman and D.M. Brown JJ.A.

Date: January 25, 2019

Case Summary

Limitations — Discoverability

Defendant installing HVAC system in plaintiffs' residence in 2006. Plaintiffs experiencing problems with system almost immediately but accepting defendant's assurance that problems would be solved if they entered into maintenance contract with defendant. Plaintiffs concluding in fall of 2009 that defendant was lying about maintenance. Plaintiffs no longer relying on defendant's expertise by fall of 2009 and therefore being aware that proceeding would be appropriate means to remedy problem. Plaintiffs not needing to know why system was not working properly in order to discover claim against defendant. Defendant's alleged concealment of information about improper installation of system not postponing commencement of limitation period. Action commenced in February 2012 statute-barred.

Facts

The defendant installed an HVAC system in the plaintiffs' residence in 2006. The plaintiffs began experiencing problems with the system almost immediately. The defendant told them that the problems were caused by improper maintenance and would be fixed if they entered into a maintenance contract with the defendant. The plaintiffs did so in 2007, but did not renew the contract in 2009 as the problems were getting worse. By the fall of 2009, the plaintiffs had concluded that the defendant had been lying to them about maintenance from the start. They contacted the manufacturer of the HVAC system's boilers and were told that the manufacturer had advised the defendant that the system had not been properly installed. The plaintiffs obtained a report in December 2010 that identified deficiencies in the installation of the system. They commenced an action against the defendant in February 2012 for damages for negligence, breach of contract, misrepresentation and unjust enrichment. The defendant moved successfully for summary judgment dismissing the action as statute-barred. The central issue on the motion was the application of the discoverability principle in s. 5 of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B. The motion judge held that the plaintiffs had discovered their claim against the defendant well prior to February 2010; they did not need to know the reason why the HVAC system was not working properly in order to discover their claim; time did not run during the two-year term of the maintenance contract because during that period the plaintiffs could reasonably maintain that they were relying on the defendant's superior knowledge and expertise; by the fall of 2009, the plaintiffs were no longer relying on the defendant's expertise, so at that point a proceeding would be an appropriate means to remedy the problem for the purposes of s. 5(1)(a)(iv) of the Act; and the defendant's alleged concealment of information about the improper installation of the system that it received from the manufacturer did not postpone the commencement of the limitation period. The plaintiffs appealed.

Decision

Held: The appeal should be dismissed.

Per D.M. Brown J.A. (Strathy C.J.O. concurring): The motion judge did not err in finding that the plaintiffs did not need to know why the HVAC system was not working properly in order to discover a claim against the defendant. The question of precise causation would be revealed through the legal proceeding and did not need to be known in advance for limitation purposes. There was no error in the motion judge's factual finding that the plaintiffs knew long before February 2010 that the HVAC system was not functioning properly and that the defendant was clearly responsible since it had installed the system. Nor did the motion judge err in his analysis of "appropriate means" under s. 5(1)(a)(iv) of the Act. His finding that the plaintiffs were no longer relying on the defendant's expertise to remedy their concerns by the fall of 2009 was firmly anchored in the evidence. The motion judge's discoverability analysis was not flawed because he failed to take into account that the defendant had falsely represented to the plaintiffs that the problem was only one of maintenance. Finally, the motion judge did not err by failing to take into account the issue of fraudulent concealment. There is no statutory provision for fraudulent concealment in relation to the basic two-year limitation period in the Act. There is no need for such a provision, because the discoverability principle achieves the same result. If a defendant's concealment of facts results in a lack of actual or objective knowledge by the plaintiff of the elements set out in s. 5(1)(a) of the Act, then the plaintiff does not discover his or her claim until the date the concealed facts are revealed to or known by the plaintiff, at which point time begins to run. Even if the defendant had been told by the manufacturer that the HVAC system had been installed improperly and had concealed that information from the plaintiffs, that would not postpone the running of the limitation period because all that was required was that the plaintiffs had discovered their claim, and it was not necessary that they knew why or how the claim arose. The action was statute-barred.

Per K.N. Feldman J.A. (dissenting): Time only began to run on the plaintiffs' claims for negligence and breach of contract in November 2010, when the plaintiffs learned from the manufacturer that the reason the system never worked was because the defendant had installed it incorrectly. That information was fraudulently concealed from the plaintiffs by the defendant. It was neither discovered nor reasonably discoverable before the plaintiffs were told by the manufacturer that it had advised the defendant that the system was installed improperly. Moreover, the motion judge erred in law by failing to address the plaintiffs' misrepresentation claim based on assurances given by the defendant at a meeting in the fall of 2010. The claim for misrepresentation was brought within the limitation period.

Reasons for Judgment

I. Overview

[1] The central issue on this appeal concerns the determination of when time began to run for the action of the appellants, Franca and Christopher Zeppa, alleging that the respondent, Woodbridge Heating & Air-Conditioning Ltd. ("Woodbridge"), improperly installed an HVAC system in their residence.

[2] Woodbridge completed installation of the HVAC system in late 2006. The Zeppas commenced this action on February 21, 2012.

[3] The motion judge held that time began to run "well prior to February of 2010", when it was clear the problems with the HVAC system were caused by Woodbridge's acts or omissions. He dismissed the action as statute-barred by s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B (the "Act"). The appellants contend the motion judge erred in so doing. The Zeppas argue that time did not begin to run until the fall of 2010 when they learned the reason why the HVAC system was not operating properly—improper installation by Woodbridge. They seek to set aside the dismissal of their action.

[4] For the reasons set out below, I would dismiss the appeal. The motion judge did not err in holding that (i) the Zeppas did not need to know the reason why their HVAC system was not working in order to discover their claim against Woodbridge; (ii) by the fall of 2009, the Zeppas were no longer relying on Woodbridge's expertise, so at that point a proceeding would be an appropriate means to remedy the problem; and (iii) Woodbridge's concealment of information about the improper installation of the system it allegedly had received from the manufacturer did not, in the specific circumstances of the case, postpone the commencement of the limitation period.

II. Chronology of Events

The installation and operation of the HVAC system

[5] I start by providing a basic chronology of the key events. I will conduct a more detailed examination of the evidence of certain events during my consideration of the grounds of appeal.

[6] Franca Zeppa owns a house in Vaughan in which she and her husband, Christopher, reside. Christopher is the president of City Park Homes, a land developer; he knows how to construct a house.

[7] The Zeppas hired Woodbridge to install an extensive HVAC system in the house. Mr. Zeppa recalled that the final price for Woodbridge's work was around $50,000 to $60,000.

[8] Woodbridge completed the installation by late 2006.

[9] Mr. Zeppa deposed that the system began to experience problems immediately after its installation. He reported the problems to Woodbridge's sales manager, Peter LaPosta, who acknowledged that he began to receive complaints from the Zeppas by May 2007.

[10] According to Mr. Zeppa, Mr. LaPosta denied that there were any problems with the HVAC system. Instead, he contended that any issues were due to the Zeppas not maintaining the system. Mr. LaPosta advised that if the Zeppas entered into a maintenance plan with Woodbridge, any current and future problems with the system would be fixed.

[11] The Zeppas entered into a two-year maintenance contract with Woodbridge, commencing June 1, 2007. Mr. Zeppa stated on discovery that throughout the maintenance program they continued to have the exact same problems and issues. Nothing ever worked properly. Despite having the maintenance plan, the problems were never fixed. The Zeppas did not renew the maintenance contract when it ended in May 2009—the problems were getting worse, as was Woodbridge's attitude.

[12] The motion judge noted Mr. Zeppa's testimony on discovery that in the summer of 2009 he told Woodbridge's representative he no longer believed the problems were due to maintenance and that "Woodbridge had been 'lying to me from day one . . . about maintenance'".

[13] Mr. LaPosta deposed that Woodbridge last performed work on the Zeppas' system in September 2009.

[14] By the fall of 2009, the Zeppas were consulting other HVAC service providers about how to address the continuing problems. I will review this evidence in greater detail later in these reasons.

[15] Mr. Zeppa ultimately contacted the manufacturer of the HVAC system's boilers, Quietside Corporation. In November 2010, Quietside wrote Mr. Zeppa advising that over the years it had received many phone calls regarding the installation at his residence. Quietside advised that it had informed the installer—which it did not name—that the "cascading piping arrangement" it had used "was not a permitted application by Quietside". Quietside stated that pictures of the installation provided by Mr. Zeppa showed that "the contractor did not follow the manufacture directions on this installation and application".

[16] In November 2010, the Zeppas obtained two reports from Pinchin Environmental Ltd. One assessed the mould growth in their home and made recommendations to remediate the problem. The other identified deficiencies in the HVAC system and proposed alterations.

[17] Kern Air Systems then provided a December 17, 2010 report that identified deficiencies in the installation of the HVAC system, including the boilers. The report recommended alterations and replacements to the HVAC system.

[18] On March 25, 2011, Urban Innovations Custom Homes provided Mr. Zeppa with a quotation of approximately $238,000 for the renovation and repair of the damage to the residence caused by excessive moisture. The quotation did not include any mould remediation work.

[19] The Zeppas obtained a December 5, 2011 quote from O'Keefe Associates Limited for the cost of mould remediation and refinishing work. O'Keefe quoted a price of approximately $211,000, which did not include the repair or replacement of the existing HVAC system.

[20] Then, on February 16, 2012, Pinchin Environmental provided a report opining that mould growth in the residence was due to chronic high humidity caused by the improper installation of the HVAC system.

[21] As noted, the Zeppas issued their statement of claim on February 21, 2012.

The Zeppas' statement of claim

[22] In their claim, the Zeppas sought general damages of $100,000 for negligence, breach of contract, misrepresentation and unjust enrichment, together with special damages of $291,312.20.

[23] The appellants' formal pleading of their causes of action is brief. At paras. 32 and 33 of the statement of claim, the Zeppas state:

The Zeppas plead that Woodbridge breached its contract with them, or alternatively, acted negligently and in breach of their professional responsibilities.

By its negligent acts and/or breach of contract and/or misrepresentation, Woodbridge is, at law, responsible to the Zeppas for their losses.

[24] Read as a whole, the statement of claim alleges that Woodbridge (i) failed to install an HVAC system that worked; (ii) misrepresented that it was qualified to install a Quietside heating system and that the problems were due to improper maintenance; and (iii) withheld information the Zeppas allege Woodbridge had received from Quietside that the system was improperly installed.

[25] The Zeppas pleaded that "they first became aware that the actual problems with the Quietside were due to the negligence of Woodbridge, upon receipt of [Quietside's November 2010] letter".

The litigation history of the proceeding

[26] Woodbridge filed its statement of defence on March 29, 2012.

[27] Woodbridge commenced a third party action against Ecologix Heating Technologies Inc., which it had retained to design the HVAC system, and McCallum Consulting.

[28] Examinations for discovery were conducted, including one of a representative of Ecologix. Mr. Zeppa was discovered in August 2015. The Zeppas delivered expert reports; Woodbridge did not.

[29] The action was set down for trial. Woodbridge initiated its summary judgment motion on December 12, 2016. It is not clear whether this was before or after the action was set down.

III. The Reasons of the Motion Judge

[30] The motion judge granted summary judgment dismissing the action on the basis that the Zeppas had commenced their action outside of the limitation period. His key findings were that:

• the Zeppas discovered their claim "well prior to February of 2010";
• the Zeppas "began experiencing significant problems with the HVAC system almost immediately after it was installed in late 2006 or early 2007" and "[i]t was clear that these problems were caused by acts or omissions of Woodbridge, since they were responsible for the installation of the HVAC system";
• time did not run during the two-year term of the maintenance contract between the Zeppas and Woodbridge because during that period the plaintiffs "could reasonably maintain that they were relying on the superior knowledge and expertise of Woodbridge, and on the fact that Woodbridge was engaged in good faith efforts to remedy the concerns with the HVAC system";
• "by the fall of 2009 the Plaintiffs were consulting with other HVAC service providers as to how to address the ongoing problems with the HVAC system" and they "were no longer relying on good faith efforts of Woodbridge to remedy the concerns"; and
• even assuming that Woodbridge had been told by Quietside that the HVAC system had been installed improperly and had chosen to conceal such information, that would not postpone the running of the limitations period because "[a]ll that is required is that the Plaintiffs have discovered their claim and . . . it is not necessary that they know why or how the claim arose".

IV. Issues on the Appeal

[31] The Zeppas advance four grounds of appeal.

[32] First, the Zeppas submit the motion judge erred in finding that they discovered their claim "well prior to February of 2010" because they knew before then that the problems with their HVAC system were caused by acts or omissions of Woodbridge, which installed the system. The Zeppas contend that a finding of actual knowledge under s. 5(1)(a) of the Act requires something more than simply knowing the HVAC system was not working properly—it requires knowledge of the reason why the HVAC system was not working. The Zeppas argue they only discovered the material facts on which to base a legal claim when they learned from Quietside in November 2010 that Woodbridge had improperly designed and installed the HVAC system.

[33] Second, the Zeppas contend that until November 2010 they reasonably relied on Woodbridge's superior knowledge and expertise to repair the problems with the system. As a result, the motion judge erred in failing to find, under s. 5(1)(a)(iv) of the Act, that a proceeding against Woodbridge was not an appropriate means to seek to remedy the problems until they learned the reason why the system was not working in November 2010.

[34] Third, the appellants contend the motion judge's discoverability analysis was flawed because he failed to take into account that Woodbridge misrepresented to them that the problem was only one of maintenance.

[35] Finally, the Zeppas submit the motion judge failed to take into account that Woodbridge concealed from them the information they contend it learned from Quietside that the system had been improperly installed.

V. The First Ground of Appeal: Did the Motion Judge Err in His Findings Concerning the Appellants' Knowledge About an Injury, Loss or Damage?

The legal element

[36] The first ground of appeal involves both legal and factual elements.

[37] The Zeppas contend the motion judge erred in law by holding, at para. 33 of his reasons, that it was not necessary for them "to have knowledge of the fact that the Quietside boilers were installed improperly in order for the limitation period to commence running. What was needed was knowledge, actual or imputed, that [they] had a 'claim' against Woodbridge."

[38] They submit that even though they knew Woodbridge had installed the HVAC system and the system was not working properly from the start, for the purposes of s. 5(1) of the Act they could not know that Woodbridge's act or omission caused or contributed to their injury, loss or damage until they knew the reason why the system did not work.

[39] I am not persuaded by this submission.

[40] In order to grant summary judgment dismissing a plaintiff's action as barred by the basic two-year limitation period set by s. 4 of the Act, a motion judge is required to make findings of fact about the matters set out in s. 5(1) and (2) of the Act. Those provisions state:

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).

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

[41] The discoverability analysis under s. 5(1) of the Act involves, in part, determining when a claimant first knew that an injury, loss or damage had occurred and was caused by an act or omission of the defendant. The jurisprudence concerning when a claimant possesses such knowledge is summarized in Graeme Mew, Debra Rolph and Daniel Zacks, The Law of Limitations, 3rd ed. (Toronto: LexisNexis, 2016), at 3.50:

[I]t has been recognized that discoverability means knowledge of the facts that may give rise to the claim. The knowledge required to start the limitation running is more than suspicion and less than perfect knowledge. Or, to put it another way, the plaintiff need not be certain that the defendant's act or omission caused or contributed to the loss in order for the limitation period to begin to run. The limitation begins to run from when the plaintiff had, or ought to have had, sufficient facts to have prima facie grounds to infer the defendant's acts or omissions caused or contributed to the loss. It is reasonable discoverability—rather than the mere possibility of discovery—that triggers a limitation period.

See, also, Lawless v. Anderson, [2011] O.J. No. 519, 2011 ONCA 102, 276 O.A.C. 75, at paras. 22-23; Kowal v. Shyiak, [2012] O.J. No. 3420, 2012 ONCA 512, 296 O.A.C. 352, at para. 18; Lochner v. Toronto (City) Police Services Board, (2015), 128 O.R. (3d) 318, [2015] O.J. No. 4795, 2015 ONCA 626, at para. 7; Beaton v. Scotia iTrade, [2012] O.J. No. 6166, 2012 ONSC 7063 (S.C.J.), at para. 13, affd [2013] O.J. No. 4095, 2013 ONCA 554.

[42] As this court observed in Lawless, at para. 23, the question to be posed in determining whether a person has discovered a claim is whether the prospective plaintiff knows enough facts on which to base a legal allegation against the defendant. In support of that proposition, Lawless cited the decision of this court in McSween v. Louis (2000), 132 O.R. (3d) 304, [2000] O.J. No. 2076 (C.A.), where Feldman J.A., writing for the majority, stated, at para. 51:

To say that a plaintiff must know the precise cause of her injury before the limitation period starts to run, in my view places the bar too high. Both the one year limitation period itself [in s. 17 of the Health Disciplines Act, R.S.O. 1990, c. H.4], as well as the production and discovery process and obtaining expert reports after acquiring knowledge through that process, are litigation procedures commonly used by a plaintiff to learn the details of how the injury was caused, or even about the existence of other possible causes and other potential defendants.

[43] Given that jurisprudence, I see no error in the motion judge's statement, at para. 26 of his reasons, of the applicable principles of law concerning s. 5(1) of the Act, including that "the question of 'how it happened'" will be revealed through the legal proceeding and need not be known in advance for limitations purposes: Beaton (S.C.J.), at para. 13.

The factual element

[44] The Zeppas next argue that the motion judge made factual errors in concluding they knew they had a claim against Woodbridge well prior to February 2010.

[45] The motion judge clearly identified the evidence upon which he relied to make that finding in paras. 29-31, 34-36 and 39 of his reasons, which state, in part:

[T]he Plaintiffs began experiencing significant problems with the HVAC system almost immediately after it was installed in late 2006 or early 2007. Christopher reported that they were regularly without heat or hot water, the air conditioning system did not function properly, and they were unable to use the indoor pool. It was clear that these problems were caused by acts or omissions of Woodbridge, since they were responsible for the installation of the HVAC system.

The Plaintiffs brought these concerns to the attention of Woodbridge in early 2007. Woodbridge advised that the problems were due to lack of maintenance and, on this basis, the parties entered into a two-year maintenance contract in May of 2007[.]

But two years of regular maintenance did not resolve the problems and the maintenance contract was not renewed upon its termination in May 2009. Sometime in the summer of 2009 Christopher told the senior Woodbridge representative that he no longer believed that the problems were due to maintenance and that Woodbridge had been "lying to me from day one . . . about maintenance". Indeed, by the fall of 2009 the Plaintiffs were consulting with other HVAC service providers as to how to address the ongoing problems with the HVAC system which, by then, had been known to the Plaintiffs for close to three years[.]

The fact that Christopher had such knowledge [of a "claim"] well before November 2010 is confirmed by the other expert reports commissioned by the Plaintiffs. For example, the Pinchin Mould Report from November 2010 indicates that Christopher had reported that the house "has experienced mechanical problems since occupancy"; Christopher further advised Pinchin that "[d]ue to humid conditions over long periods of time, [the] house has shifted throughout", resulting in cupped floors throughout the house, and separation of crown mouldings, kitchen millwork and columns. The Pinchin Mould Report from November 2010 states that "[t]he Client [Christopher] indicated that he had been experiencing heating failures over the last 5 years." The Kern Report prepared in December 2010 indicates that "the boilers have not operated reliably since the start-up of the system [in 2006-07]".

It is crystal clear from these reports, as well as Christopher's Examination, that the Plaintiffs knew long before February 2010 that the HVAC system was not functioning properly. Woodbridge was clearly responsible since they had installed the system [.]

In any event, even if it were assumed that knowledge of the improper installation of the Quietside boilers was a necessary element of discovery of the claim, such knowledge was discoverable by the Plaintiffs prior to February 2010. Christopher had been advised by other HVAC service providers with whom he had consulted in late 2009 that the boilers had been installed improperly. It would have been a straightforward matter for Christopher to have contacted the manufacturer at that time, at which point he would have been advised of the improper installation by Quietside.

The record before me indicates that there were serious and sustained problems with the HVAC system from the time it was installed. The Plaintiffs were well aware of these problems from the time they occupied the house.

[46] Unlike my colleague, I see no error in the factual findings that would justify appellate intervention. The motion judge did not misapprehend the evidence. His findings were solidly grounded in the record before him. Accordingly, I would not give effect to this ground of appeal.

VI. Second Ground of Appeal: Did the Motion Judge Err in His "Appropriate Means" Analysis?

[47] The Zeppas submit the motion judge erred in failing to find that a proceeding against Woodbridge was not "an appropriate means to seek to remedy" their injury, loss or damage, within the meaning of s. 5(1)(a)(iv) of the Act, until they received Quietside's November 2010 letter. Until that time, they argue, they were relying on the superior knowledge and expertise of Woodbridge, so time did not start to run until receipt of the Quietside letter.

[48] In Presidential MSH Corp. v. Marr Foster & Co. LLP (2017), 135 O.R. (3d) 321, [2017] O.J. No. 2059, 2017 ONCA 325, Pardu J.A. observed that the jurisprudence discloses two circumstances in which the issue of appropriate means under s. 5(1)(a)(iv) of the Act most often delays the date on which a claim is discovered. First, resorting to legal action might be inappropriate in cases where the plaintiff relied on the superior knowledge and expertise of the defendant, especially where the defendant undertook efforts to ameliorate the loss: at para. 26. Second, a legal action might not be appropriate if an alternative dispute resolution process "offers an adequate alternative remedy and that process has not fully run its course": at para. 29.

[49] The motion judge applied this jurisprudence. He held that the Zeppas did not discover their claim against Woodbridge during the time the two-year maintenance contract was in effect. At para. 30 of his reasons, the motion judge stated:

[T]he parties entered into a two-year maintenance contract in May of 2007. During this period, the Plaintiffs could reasonably maintain that they were relying on the superior knowledge and expertise of Woodbridge, and on the fact that Woodbridge was engaged in good faith efforts to remedy the concerns with the HVAC system. Based on the reasoning in Presidential MSH Corp. v. Marr, Foster & Co. LLP ("Presidential MSH Corp."), it is possible that litigation was not then an "appropriate means" to address the concerns.

[50] However, the motion judge found that "by the fall of 2009 the Plaintiffs were no longer relying on good faith efforts of Woodbridge to remedy the concerns, which clearly distinguishes the present circumstances from those in Presidential MSH Corp": at para. 31.

[51] That finding is firmly anchored in the evidence, especially the examination of discovery of Mr. Zeppa conducted on August 11, 2015. On his discovery, Mr. Zeppa talked extensively about events in mid to late 2009. His evidence included the following:

• in mid to late 2009, he met with Mr. LaPosta and had a follow-up conversation with him about a month and a half later;
• in the meeting, Mr. Zeppa advised that the system was not working and he was upset Woodbridge was taking the position that the Zeppas would have to pay for further changes;
• during the course of the conversation, Mr. Zeppa said to Mr. LaPosta: "you're full of . . . I don't believe it. You're full of it. You've been lying to me from day one . . . about maintenance. You've been lying. You've been lying";
• at that point, Mr. Zeppa started making some inquiries of others. The system had "never worked from day one" and the "problem had never been resolved";
• Mr. Zeppa had several different guys trying to get the heat in his house back up, including Attilio and EM Air. Right after the conversation with Mr. LaPosta, Mr. Zeppa "had people just coming over to patch it to get it working, just to get the heat working and the hot water working". This was in mid to late 2009;
• although these other companies would temporarily fix the problem, no matter who got the HVAC system back up, there was always the same routine of constant breakdown and repair;
• in mid to late 2009, he heard from the other companies to which he was making inquiries that the Quietside boilers were junk and "the system's done wrong". He heard a "myriad of opinions from different guys who deal with this stuff on a daily basis";
• also by that time, based on the information Mr. LaPosta provided, Mr. Zeppa knew he would have to "revamp the whole system".

[52] Given that evidence from Mr. Zeppa, it was certainly open to the motion judge to conclude [at para. 31] that "by the fall of 2009 the Plaintiffs were no longer relying on good faith efforts of Woodbridge to remedy the concerns". I see no palpable and overriding error in that finding. Accordingly, I would not give effect to this ground of appeal.

VII. Third Ground of Appeal: Did the Motion Judge Err in His Treatment of the Appellants' Misrepresentation Claim?

[53] Next, the Zeppas submit the motion judge's discoverability analysis was flawed because he failed to take into account that Woodbridge falsely represented to them that the problem was only one of maintenance.

[54] I do not accept this submission. The motion judge clearly considered this issue, at para. 31 of his reasons, where he wrote, in part:

Sometime in the summer of 2009 Christopher told the senior Woodbridge representative that he no longer believed that the problems were due to maintenance and that Woodbridge had been "lying to me from day one . . . about maintenance". Indeed, by the fall of 2009 the Plaintiffs were consulting with other HVAC service providers as to how to address the ongoing problems with the HVAC system which, by then, had been known to the Plaintiffs for close to three years.

[55] That evidence informed the motion judge's findings that by the fall of 2009, the Zeppas were no longer relying on the efforts of Woodbridge to remedy their concerns or on its representations regarding maintenance. I see no palpable and overriding error in those findings. Consequently, I see no error in the motion judge's finding that by that by the fall of 2009, the Zeppas knew a proceeding would be an appropriate means to remedy their injury, loss or damage.

[56] In para. 115 of her reasons, my colleague takes a different view, concluding that the motion judge erred by failing to address separately the Zeppas' misrepresentation claim. My colleague characterizes that misrepresentation claim as one based on assurances given by Woodbridge to Mr. Zeppa at a meeting in the fall of 2010. I would make two brief observations.

[57] First, the Zeppas' pleading of misrepresentation was a bald one, as described in para. 23, above. They did not frame their misrepresentation claim in the manner my colleague has. Indeed, the Zeppas did not provide full particulars of the date or content of any alleged misrepresentation, as required by rule 25.06(8) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[58] Second, as I noted in footnote 1 to para. 51, above, although Mr. Zeppa referred in his affidavit to a 2010 meeting with Woodbridge, throughout his examination for discovery he placed that meeting in 2009. Indeed, he testified that by November 2010, he was not talking to Mr. LaPosta of Woodbridge.

VIII. Fourth Ground of Appeal: Did the Motion Judge Err in His Treatment of the Principle of Fraudulent Concealment?

The issue stated

[59] Finally, the Zeppas submit the motion judge erred by failing to take into account the issue of fraudulent concealment. They argue that (i) Quietside told Mr. Zeppa in November 2010 that "over the years" the company had received "many phone calls" about the installation of the units in his home and had "explained to the service company" that their installation of the units was not a permitted one; (ii) Woodbridge did not disclose to the Zeppas that it had received information from Quietside that the installation was improper; as a result of which, (iii) such concealment of facts by Woodbridge should have led the motion judge to conclude that the limitation period did not begin to run until November 2010, on the basis of the equitable principle of fraudulent concealment.

[60] I am not persuaded by this submission.

The governing legal principles

[61] The equitable principle of fraudulent concealment was described by Dickson J. in Guerin v. Canada, [1984] 2 S.C.R. 335, [1984] S.C.J. No. 45, at p. 390 S.C.R.:

[W]here there has been a fraudulent concealment of the existence of a cause of action, the limitation period will not start to run until the plaintiff discovers the fraud, or until the time when, with reasonable diligence, he ought to have discovered it. The fraudulent concealment necessary to toll or suspend the operation of the statute need not amount to deceit or common law fraud.

[62] A succinct, but comprehensive, summary of the elements of the principle is found in the decision of Perell J. in Colin v. Tan, [2016] O.J. No. 810, 2016 ONSC 1187, 81 C.P.C. (7th) 130 (S.C.J.), at paras. 44-47:

Fraudulent concealment will suspend a limitation period until the plaintiff can reasonably discover his or her cause of action.

The constituent elements of fraudulent concealment are threefold: (1) the defendant and plaintiff have a special relationship with one another; (2) given the special or confidential nature of the relationship, the defendant's conduct is unconscionable; and (3) the defendant conceals the plaintiff's right of action either actively or the right of action is concealed by the manner of the wrongdoing.

Fraudulent concealment includes conduct that having regard to some special relationship between the parties concerned is unconscionable. For fraudulent concealment, the defendant must hide, secret, cloak, camouflage, disguise, cover-up the conduct or identity of the wrongdoing. The word fraudulent is used in its equitable (not common law) sense to denote conduct by the defendant such that it would be against conscience for him or her to avail himself of the lapse of time.

There is a causative element to the doctrine of fraudulent concealment because the legal policy behind fraudulent concealment is that if the plaintiff was unaware of his or her cause of action because of the wrong of the defendant, then the court will refuse to allow a limitation defence; i.e., the plaintiff must be ignorant of the cause of action because of the misconduct of the defendant.

[63] This equitable principle is not a rule of construction of limitations statutes. It is a principle that can take a case outside of the effect of a limitation provision and suspend the running of the limitation clock until such time as the injured party can reasonably discover the cause of action: Giroux Estate v. Trillium Health Centre (2005), 74 O.R. (3d) 341, [2005] O.J. No. 226 (C.A.), at para. 28.

[64] This court has held that the principle of fraudulent concealment is available in cases involving limitation periods contained in statutes other than the Act, including s. 38(3) of the Trustee Act, R.S.O. 1990, c. T.23: Giroux Estate; Roulston v. McKenny (2017), 135 O.R. (3d) 632, [2017] O.J. No. 26, 2017 ONCA 9; the limitation period under the Real Property Limitations Act, R.S.O. 1990, c. L.15: Anderson v. McWatt, [2015] O.J. No. 3442, 2015 ONSC 3784 (S.C.J.), at para. 77, affd [2016] O.J. No. 3740, 2016 ONCA 553; and the limitation period created by s. 82(2) of the former Employment Standards Act, R.S.O. 1990, c. E.14: Halloran v. Sargeant, [2002] O.J. No. 3248, 217 D.L.R. (4th) 327 (C.A.), at para. 35.

[65] As to claims governed by the Act, s. 15 of the Act expressly addresses the effect of the concealment of facts on the running of the 15-year ultimate limitation period. Specifically, s. 15(4)(c) provides that the ultimate limitation period does not run during any time in which

(c) the person against whom the claim is made,

(i) wilfully conceals from the person with the claim the fact that injury, loss or damage has occurred, that it was caused by or contributed to by an act or omission or that the act or omission was that of the person against whom the claim is made, or

(ii) wilfully misleads the person with the claim as to the appropriateness of a proceeding as a means of remedying the injury, loss or damage.

[66] No similar language is found in relation to the basic two-year limitation period in ss. 4 and 5 of the Act. Mew, Rolph and Zacks offer the view, at 6.103 of their text, that:

There is no statutory provision for "wilful concealment" or "fraudulent concealment" in relation to the basic two-year limitation period set out in the Act, nor was there any such provision contained in the Limitation Act, 2002 predecessor statute. There is no need for such a provision, because the discoverability principle achieves the same result.

[67] The jurisprudence supports this view. The intersection of the principle of fraudulent concealment with the basic two-year limitation period in ss. 4 and 5 of the Act received some consideration in the case of Dhaliwal v. Lindsay, [2009] O.J. No. 4621, affd [2010] O.J. No. 2907, 2010 ONCA 493, leave to appeal to S.C.C. refused [2010] S.C.C.A. No. 401. In that case, the plaintiff commenced a 2008 medical malpractice action against doctors who had treated her at the end of 2003. In December 2005, the plaintiff had obtained documents concerning her treatment. She contended that the notes for December 2003 in the hospital records attempted to conceal the involvement of the defendant doctors and amounted to fraudulent concealment. However, the documentation received by the plaintiff in December 2005 also included OHIP statements that disclosed the involvement of the defendant doctors in her care.

[68] The motion judge granted summary judgment dismissing the action as statute-barred under ss. 4 and 5 of the Act. As part of her analysis, she commented, at paras. 18 and 19, on the interplay between the Act and the principle of fraudulent concealment:

The Plaintiffs argue, in effect, that an allegation of fraudulent concealment would operate to defeat a limitation period altogether. This interpretation cannot be sustained in light of the fact that the common law doctrine of fraudulent concealment is an equitable principle which operates to "stay the operation of a limitation period by the invocation of the Court's equitable jurisdiction to prevent an injustice" (Giroux Estate v. Trillium Health Centre, [2004] O.J. No. 557 (Ont. C.A.) at para. 22; See also: M.(K.) v. M.(H.), [1992] 3 S.C.R. 60). When applicable, it will "suspend the running of the limitation clock until such time as the injured party can reasonably discover the cause of action" (Giroux Estate, supra, at para. 28).

Assuming for the sake of this motion that the Defendants did fraudulently conceal their involvement, the effect of this on discoverability was to defer the date upon which their involvement could reasonably be said to have been discoverable until the date upon which the Plaintiffs (though counsel) had the decoded OHIP statements that indicated that they had treated Ms. Dhaliwal on the dates in issue. As indicated above, there can be no dispute that the decoded OHIP statements were in the hands of Plaintiffs' then-counsel by December 7, 2005.

[69] In a brief endorsement dismissing the appeal from the motion judge's decision, this court did not accept the appellants' contention that the motion judge had improperly conflated the equitable principle of fraudulent concealment with the distinct doctrine of discoverability stating, at para. 3: "[T]he motion judge's analysis of the intersection of these two principles in this case was entirely consistent with the current governing case law."

[70] Then, in Kim v. Manufacturers Life Insurance Co., [2014] O.J. No. 4481, 2014 ONCA 658, this court rejected the appellant's argument that the basic limitation period under the Act should be suspended because of the respondent's alleged fraudulent concealment of documents. On the facts of that case, any fraudulent concealment of documents would not have prevented the appellant from knowing he had a cause of action: at paras. 3-5.

[71] The decisions in Dhaliwal and Kim, together with the plain language of ss. 4 and 5 of the Act, support the conclusion that there is no independent work for the principle of fraudulent concealment to perform in assessing whether a plaintiff has commenced a proceeding within the basic two-year limitation period. That is because the elements of the discoverability test set out in s. 5(1)(a) and (b) address the situation where a defendant has concealed its wrong-doing. If a defendant conceals that an injury has occurred, or was caused by or contributed to by its act or omission, or that a proceeding would be an appropriate means to seek to remedy it, then it will be difficult for the defendant to argue that the plaintiff had actual knowledge of those facts until the concealed facts are revealed. Whether the plaintiff ought to have known of those matters, given their concealment, is a matter for inquiry under s. 5(1)(b).

[72] If the defendant's concealment of facts results in a lack of actual or objective knowledge by the plaintiff of the elements set out in s. 5(1)(a) of the Act, then the plaintiff does not discover his or her claim until the date the concealed facts are revealed to or known by the plaintiff, at which point time begins to run. That is to say, the analysis required by s. 5(1) of the Act captures the effect of a defendant's concealment of facts material to the discovery of a claim.

Application of the principles to the present case

[73] In the present case, the motion judge considered the Zeppas' argument that Woodbridge's concealment of the information from Quietside about the improper installation of the HVAC system postponed the running of the limitation period until November 2010. At para. 37 of his reasons, the motion judge rejected that submission, writing:

The Plaintiffs further argued that Woodbridge had been told by Quietside that the HVAC system had been installed improperly and had chosen to conceal such information. Even assuming this to be the case, it would not postpone the running of the limitations period. All that is required is that the Plaintiffs have discovered their claim and, as noted above, it is not necessary that they know why or how the claim arose. Thus even if Woodbridge had withheld information about the underlying cause of the claim, such withholding would not postpone the commencement of the limitation period.

[74] I see no error in the motion judge's analysis. It is consistent with the legal principles applied by this court in Dhaliwal and Kim concerning the interplay between the principle of discoverability in s. 5 of the Act and that of fraudulent concealment. Also, it rests on reasonable factual findings made by the motion judge about when the Zeppas discovered their claim: see paras. 45 and 46, above. Accordingly, I would not give effect to this ground of appeal.

IX. Disposition

[75] For the reasons set out above, I see no reversible error in the motion judge's conclusion that the appellants' action was statute-barred. I would dismiss the appeal.

[76] Based on the agreement of the parties about the costs of the appeal, I would award the respondents costs of the appeal fixed at $5,000, inclusive of disbursements and applicable taxes.

Dissenting Opinion

[77] K.N. Feldman J.A. (dissenting): -- I agree with Brown J.A. that the central issue on this appeal concerns the motion judge's determination of when time began to run for the appellants' action against the respondent.

[78] In my view, the motion judge erred in fact and in law by finding that the appellants did not need to know that the respondent had done anything to cause them damage in order to know that they had a claim in negligence, breach of contract and misrepresentation, and by finding that the fact that the respondent fraudulently concealed its wrongdoing from the appellants did not toll the running of the basic two-year limitation period.

[79] Time only began to run on the negligence and breach of contract claims in November 2010, when the appellants learned from the manufacturer that the reason the system never worked was because the respondent had installed it incorrectly. That information was fraudulently concealed from the appellants by the respondent. It was neither discovered nor reasonably discoverable before the appellant, Mr. Zeppa, called the manufacturer, Quietside, and was told that (1) the service company had been in touch with Quietside a number of times about the appellants' system; (2) Quietside told the service company that it had installed the components of the appellants' system incorrectly; and (3) Quietside had also told the service company that was why the system would never function properly. There was no issue that the service company was the respondent, Woodbridge.

[80] The respondent never disclosed this information to the appellant.

[81] In my view, the motion judge erred in law and made palpable and overriding errors of fact in deciding this motion on summary judgment by making the three findings referred to by my colleague. He also erred in law by failing to address the misrepresentation claim based on the respondent's assurance in late 2010. The claim for misrepresentation was therefore brought within the two-year limitation period.

[82] The motion judge erred in fact on the record by finding that (1) Mr. Zeppa was no longer relying on Woodbridge by the fall of 2009 and by failing to give effect to the fact that the system was still working up to the fall of 2010.

[83] He erred in law by finding that (2) the Zeppas did not need to know the reason why their HVAC system was not working in order to discover their claim against Woodbridge; and (3) Woodbridge's concealment of the information it received from Quietside that its improper installation of the system was the cause of the ongoing problems did not postpone the running of the two-year limitation period.

[84] The motion judge also erred in fact and in law by finding that the appellants reasonably could have discovered that the respondent had improperly installed the system prior to February 2010, and by relying on that finding. Finally, he erred in law by failing to address the claim for misrepresentation and by failing to find that that claim was brought within the two-year limitation period.

(1) The Motion Judge's Findings Regarding Timing Constituted a Palpable and Overriding Error of Fact

[85] The motion judge made key findings of fact that are inconsistent. First, the motion judge found, at paras. 13-14:

It appears that the system functioned until the fall of 2010 when it failed again. Christopher had a further meeting with Woodbridge representatives and then decided to reach out to the U.S. manufacturer of the HVAC system, Quietside Corporation. He called and then emailed Quietside, indicating that he had been told that the Quietside boilers were "terrible boilers" and inquiring as to whether there were other qualified installers in Ontario who could be hired to remedy the problems.

On November 1, 2010, Quietside replied by way of a letter in which they indicated that they had received calls over the years from the "service company" that had installed this particular system. Quietside reported that, based on the information provided by Christopher and the "service company", as well as photographs provided by Christopher, the system had been installed incorrectly. In Quietside's opinion, this incorrect installation was responsible for the ongoing problems being experienced by the plaintiffs.

[86] I note that in his affidavit for the summary judgment motion, the representative of Woodbridge, Mr. LaPosta, stated that while he did not specifically recall his conversations with Mr. Zeppa following the installation where Mr. Zeppa complained of numerous problems with the HVAC system, he did not have any reason to disagree that Mr. Zeppa made several complaints. Mr. Zeppa's uncontradicted evidence was that when he met with Woodbridge and a representative of Ecologix, the firm that Woodbridge used to design the HVAC system, they told him, in effect, that they would get it sorted out and that he should not worry.

[87] As to the date of that meeting, the motion judge noted, in a footnote to para. 13, that Mr. Zeppa said in his affidavit that he met with Woodbridge in the fall of 2010, but in answer to a question on his examination, he said his last meeting was in 2009. The trial judge stated that despite that difference, he was prepared to assume for the purposes of the motion that a meeting between Mr. Zeppa and Woodbridge did occur in the fall of 2010. The 2010 date in para. 13 is therefore a finding of fact by the motion judge on this summary judgment motion.

[88] Then, at para. 35, the motion judge made the further finding:

It is crystal clear from these reports, as well as Christopher [Zeppa's] Examination, that the Plaintiffs knew long before February 2010 that the HVAC system was not functioning properly. Woodbridge was clearly responsible since they had installed the system. Moreover, by late 2009, Christopher was no longer looking to Woodbridge to remedy the situation; by this time there was no question but that a legal proceeding was an "appropriate means" to remedy the loss or damage. These are the elements sufficient to cause the limitation period to commence running.

[89] The two findings in respect of timing are contradictory and inconsistent. While the motion judge first found that the system was still working in the fall of 2010 and that the appellant met with Woodbridge about the problem in late 2010, the motion judge ignored those findings when he later found that by late 2009, the appellant knew the system was not functioning properly and he was no longer looking to Woodbridge to remedy the situation.

[90] This is a critical inconsistency because the latter findings formed the basis for the motion judge's conclusion that the appellants knew they had a "claim" against the respondent well before February 2010.

[91] The motion judge also never explained why it would have been appropriate to bring a legal proceeding against Woodbridge in 2009 when the HVAC system was still working until the fall of 2010.

(2) The Motion Judge Erred in Law by Holding that the Appellants did not Need to Know the Act or Omission by the Respondent that Caused the Damage

[92] The motion judge found, at para. 33, that "it was not necessary for Christopher to have knowledge of the fact that the Quietside boilers were installed improperly in order for the limitation period to commence running. What was needed was knowledge, actual or imputed, that he had a 'claim' against Woodbridge". This was a legal error.

[93] In the circumstances of this case, knowledge of the improper installation was an essential element of discoverability of the appellants' claims for negligence and breach of contract.

[94] In order for the basic limitation period to begin under s. 5(1) of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, the person with the claim must know (or ought reasonably to have known) (1) that the injury, loss or damage occurred; (2) that the injury, loss or damage was caused by or contributed to by an act or omission; (3) that the act or omission was that of the person against whom the claim is made; and (4) that a proceeding would be an appropriate means to seek to remedy it. Under s. 5(2), a person with a claim is presumed to have known of the four matters referred to in s. 5(1) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

[95] Until Woodbridge's improper installation was revealed, the Zeppas knew that the system had many problems, but they did not know that the problems were caused by the act of improper installation by the respondent. They did not know of any act or omission by Woodbridge or the day it occurred.

[96] In fact, when the Zeppas first came to Woodbridge with complaints, Woodbridge informed them that the problems with the system were due to lack of maintenance. There were no problems with the HVAC system itself and no suggestion that the problem was caused by improper installation. On the basis of Woodbridge's assurances, the Zeppas entered into a two-year maintenance agreement. This cost them approximately $4,600.

[97] However, Woodbridge knew that maintenance would never fix the HVAC system. Woodbridge concealed the fact that its faulty installation of the boilers was the central cause of the Zeppas' problems. Until Quietside revealed that fact to the Zeppas, Woodbridge's fraudulent concealment prevented the Zeppas from knowing whom to hold responsible for the damage to their family home and why.

[98] Woodbridge did not provide the Zeppas with a written warranty guaranteeing that the HVAC system would function properly, nor was the action based on a breach of warranty (including any implied warranty under the Sale of Goods Act, R.S.O. 1990, c. S.1). The action is framed in negligence and breach of contract. The contract is based on the Zeppas' acceptance of a written quote from Woodbridge for the supply of labour and materials for a project described as "Heating, Ventilation & Pool Heating for Pool Room".

[99] If the action had been pleaded as a breach of an implied warranty, or if Woodbridge had provided an explicit warranty, the Zeppas' knowledge that the HVAC system was not working properly may have been sufficient to trigger the running of the limitation period. But that is not the claim here.

[100] Problems that can be resolved through maintenance are not necessarily caused by the acts or omissions of the installer. The motion judge's finding that the Zeppas' problems were clearly caused by Woodbridge's acts or omissions was not based on any evidence other than the fact that there were ongoing problems with the HVAC system. He treated the cause of action as if it were for breach of warranty and not for negligence or breach of contract in the installation of the system.

[101] Mr. Zeppa first contacted Quietside because he had heard that its boilers were terrible and that was why Quietside was no longer operating in Canada, i.e., the boilers had a possible manufacturing defect or were inherently faulty. When he asked the manufacturer for assistance, Quietside responded to his inquiries with the letter that revealed Woodbridge's faulty installation of the boilers and Woodbridge's knowledge that its faulty installation was the cause of the problems.

[102] This case is distinguishable from McSween v. Louis (2000), 132 O.R. (3d) 304, [2000] O.J. No. 2076 (C.A.), where the plaintiff knew that her injury was caused by a medical operation, but needed an expert report to learn what precise error was made by the surgeon. While that report was needed for trial, the court held that the level of detailed understanding provided by the report was not required for the plaintiff to know she had a cause of action against the surgeon.

[103] Mr. Zeppa's evidence demonstrates why knowledge that the HVAC system was not working properly was not enough to trigger the basic limitation period. In the face of Woodbridge's assurances, Mr. Zeppa reasonably suspected that the boiler manufacturer may have been responsible for the HVAC problems. Woodbridge's false assurances continued until late 2010.

(3) The Motion Judge Erred in Law by Finding that the Respondent's Fraudulent Concealment did not Postpone the Running of the Limitation Period

[104] In its evidence, the respondent did not deny that it had fraudulently concealed from the appellants the fact that the cause of the problems with the HVAC system was its improper installation of the boilers; it also did not deny that it had learned from Quietside that its installation was the cause of the problems years before the November 2010 letter. However, the motion judge found that any fraudulent concealment did not postpone the running of the limitation period because it was not necessary for the appellants to know how or why their claim arose. I have already addressed why the latter finding constitutes an error of law in the circumstances of this case and was not in compliance with s. 5(1) of the Limitations Act, 2002.

[105] Although the effect of fraudulent concealment is not stated in the description of discoverability in s. 5 of the Limitations Act, 2002, it is referred to in s. 15(4). The structure of ss. 5 and 15(4) confirms that the legislature intended fraudulent concealment to be analyzed within discoverability. The central purpose of the Act also supports this position.

[106] Section 15(4) prescribes an ultimate limitation period that begins to run when the act or omission on which the claim is based occurs. The discoverability principle does not postpone its running, with one exception: the ultimate limitation period will not run when the claim is not discoverable because of fraudulent concealment. The Act defines fraudulent concealment and its effect in s. 15(4)(c) using the language of discoverability:

(4) The limitation period established by subsection (2) does not run during any time in which,

(c) the person against whom the claim is made,

(i) wilfully conceals from the person with the claim the fact that injury, loss or damage has occurred, that it was caused by or contributed to by an act or omission or that the act or omission was that of the person against whom the claim is made, or

(ii) wilfully misleads the person with the claim as to the appropriateness of a proceeding as a means of remedying the injury, loss or damage.

[107] It was necessary for the legislature to explicitly provide for the effect of fraudulent concealment on the ultimate limitation period because discoverability does not otherwise apply to that limitation period. But there is no need to specifically refer to it in s. 5—it forms part of the concept of discoverability. See Mew, Rolph and Zacks' statement in The Law of Limitations, 3rd ed. (Toronto: LexisNexis, 2016), at 6.103:

There is no statutory provision for "wilful concealment" or "fraudulent concealment" in relation to the basic two-year limitations period set out in the Act, nor was there any such provision contained in the Limitations Act, 2002 predecessor statute. There is no need for such a provision, because the discoverability principle achieves the same result.

[108] It is presumed that legislation is internally consistent and coherent, and that provisions work together as parts of a functioning whole: Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Toronto: LexisNexis, 2014), at 11.2. The basic and ultimate limitation periods will run concurrently in most circumstances. Where fraudulent concealment operates to prevent the running of the ultimate limitation period, it must have the same effect on the basic limitation period.

[109] As outlined in s. 15(4) of the Act, the effect of a defendant's fraudulent concealment of essential facts is to toll the limitation period until the plaintiff learns about the concealed facts (either from the defendant or in some other way). This is consistent with the central purpose of limitations statutes, referred to as statutes of repose, which is to give defendants the peace of knowing that they cannot be sued for something they may have done, once the limitation period has passed.

[110] The motion judge did not consider Woodbridge's fraudulent concealment to be relevant to discoverability. In my view, that is an error of law. The effect of that approach is to allow the respondent to profit from its fraudulent concealment and obtain the benefit of the limitation period by misleading the appellants. This does not strike the right balance between providing plaintiffs with sufficient time to commence claims and providing defendants with the peace of knowing they cannot be sued after a fixed period of time has passed: see Ontario, Legislative Assembly, Official Report of Debates (Hansard), 37th Parl., 3rd Sess., No. 65A (December 2, 2002) at 1550 (David Young). Allowing a defendant to gain that peace by concealing the information the plaintiff must know to bring the action is anathema to the purpose of limitations statutes.

(4) The Motion Judge Erred in Fact and in Law by Finding that the Appellants Reasonably could have Discovered that the Respondent had Improperly Installed the System Prior to February 2010, and by Relying on that Finding

[111] Finally, the motion judge found that, even if knowledge of the improper installation of the system was a necessary element of discovery of the claim, such knowledge was discoverable by the appellants prior to February 2010.

[112] The motion judge stated that the Zeppas were advised by other HVAC service providers about the improper installation in 2009, and that it would have been a "straightforward matter" for them to have contacted the boiler manufacturer at that time. The only evidence that the motion judge appears to have relied on to ground his assertion that the service providers advised the appellants about the improper installation is Mr. Zeppa's statement that he was told the "system's done wrong" by one HVAC service provider in 2009.

[113] There was no evidence in the record that the Zeppas understood the system being "done wrong" to mean that it was improperly installed by Woodbridge. Furthermore, this statement was only one of many competing opinions presented to the Zeppas in 2009. These opinions appeared to reflect divergent views on the source of the HVAC problems, including that the boilers were "junk".

[114] Because the motion judge discounted the relevance of fraudulent concealment, he did not consider the legal effect of the respondent's fraudulent concealment on when the appellants ought reasonably to have discovered the actual cause of the problem. In my view, it lies ill in the mouth of the respondent to suggest that the appellants should have taken steps earlier to discover what was really wrong with their system in the face of the respondent's fraudulent concealment of its wrongdoing.

(5) The Motion Judge Erred in Law by Failing to Address the Misrepresentation Claim

[115] The motion judge did not separately consider whether the claim based on misrepresentation was statute-barred. As discussed above, the motion judge found that the parties met in the fall of 2010. The only evidence of that meeting was Mr. Zeppa's evidence, which Mr. La Posta did not refute, that the appellant was assured that they would get it sorted out and that he should not worry. The claim based on this misrepresentation was made within two years. The motion judge erred by failing to so find.

Conclusion

[116] The Zeppas did not know that Woodbridge was responsible for their misfortune by improperly installing the HVAC system because Woodbridge concealed that essential fact. Their claim for negligence and breach of contract was not discoverable until that fact was revealed on November 1, 2010. Their claim based on misrepresentation was brought within two years.

[117] I would allow the appeal, and set aside the finding that the action is statute-barred.

Disposition

Appeal dismissed.

Costs of the appeal fixed at $5,000, inclusive of disbursements and applicable taxes.