COURT FILE AND PARTIES

COURT FILE NO.: SR11-593
DATE: 2012/07/11
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Richard Albini Sabourin and Chantal Ginette Levac

AND:

Rejean Proulx carrying on business as Rejean Proulx Masonry and

1605878 Ontario Inc.

BEFORE: Justice Rick Leroy

COUNSEL: Jean-Marc Lefebvre, Counsel for the Plaintiffs

Prakash Pooran, Counsel for the Defendants

HEARD: June 29, 2012

ENDORSEMENT ON RULE 20 MOTION FOR SUMMARY JUDGMENT

Introduction:

[ 1 ] The Plaintiffs’ claim is for damages they allege arise from defects in the Defendants’ installation of exterior stone veneer on their home during summer 2006. The Defendants’ motion is for an order for summary judgment (Rule 20) dismissing the Plaintiffs’ claims on the ground that they are barred by the Limitations Act, 2002.

[ 2 ] The issue is factual and requires a determination of the date on which these Plaintiffs knew or ought to have known of the following:

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 – Limitations Act, 2002, s. 5(1)(a)(b).

[ 3 ] The Plaintiffs bear the burden of proving that the statement of claim was issued within two years of discovery. They are presumed to have known of these matters on the day the act or omission on which the claim is based unless the contrary is proved – subsection 5(2).

Facts:

[ 4 ] The Plaintiffs constructed a new home, beginning in 2006 and completing in late 2007. The Plaintiff, Mr. Sabourin, performed the role of construction supervisor. He hired the Defendants to apply the exterior stone veneer, which was completed in the months of June through August 2006.

[ 5 ] The Plaintiffs contacted Mr. Proulx in the summer or fall of 2007 to complain about a vertical crack in the masonry. Mr. Proulx attended and assured the Plaintiffs that cracks are common, that the fact of the crack did not indicate defective workmanship, and that he could easily repair. The crack was never repaired.

[ 6 ] One year later, in 2008, the Plaintiffs contacted the stone manufacturer about efflorescence. Efflorescence (building bloom) occurs with all concrete. A representative of the manufacturer attended and reassured the Plaintiffs that what they were observing was normal. The Plaintiffs accepted that representation at face value.

[ 7 ] In August 2010, the Plaintiffs again contacted the manufacturer because of continued efflorescence. This time the manufacturer’s representative advised the Plaintiffs that the ongoing efflorescence, four years after installation, was likely the result of poor installation and recommended a home inspection.

[ 8 ] The Plaintiffs followed up with a home inspection in October 2010 and an engineer’s report in January 2011. The Plaintiffs alerted Mr. Proulx in November 2010. Mr. Proulx denies installation deficiencies. The engineer’s investigation revealed the absence of a clear opening between the stone and the exterior of the frame unit that is required by the Ontario Building Code and poorly mixed mortar. The engineer’s opinion is that the effect of this deficiency is that moisture is perpetually trapped between the exterior wall and the stone veneer and accounts for the sustained efflorescence experience. The engineer’s report adverts to implications for consequential structural degradation and the need to remedy.

[ 9 ] The Statement of Claim was issued on June 1, 2011.

Rule 20:

[ 10 ] Summary judgment on the discoverability issue may be granted when there is dispute as to the application of the rules, provided that none of the material facts related to the issue are in dispute.

[ 11 ] The standard for factual determination on summary judgment motions is whether the full appreciation of the evidence and issues that is required to make dispositive findings can be achieved by summary judgment or can this full appreciation only be achieved by way of a trial. – Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764.

[ 12 ] The facts on the discrete limitations issue were presented in the form of the Plaintiff’s affidavit and transcript of cross-examination on that affidavit. I am satisfied that I can make the necessary dispositive findings of fact on this issue.

Discovery:

[ 13 ] The discoverability principle postpones the commencement of the statutory limitation period. The rationale is that it would be unjust to invoke limitation consequences before a claimant knows or by reasonable diligence ought to have known of the cause of action.

[ 14 ] Limitation periods exist to allow certainty and finality in relations. A Plaintiff does not need to know the precise cause of injury before the limitation period starts to run, or the full extent of the loss suffered. A Plaintiff need only know enough facts to base a cause of action against the Defendants.

[ 15 ] It is a question of fact, depending on the circumstances of the case as a whole, as to when knowledge of the material acts was reasonably acquired by the Plaintiff.

[ 16 ] In personal injury cases, where the claimant intrinsically experiences the sensations attributed to the injury, our courts have approved delay in commencement to the limitation period until Plaintiff’s solicitor has had a reasonable opportunity to review all pertinent hospital and medical records ( Law v. Kingston General Hospital (1983), 1983 1785 (ON SC) , 42 O.R. (2d) 476 (H.C.J.) Griffiths J., Peixeiro v. Haberman , 1997 325 (SCC) , [1997] 3 S.C.R. 549).

[ 17 ] There will also be cases where the Plaintiff will have actual or deemed knowledge immediately after the event. Actual or deemed knowledge will be delayed where the Plaintiff is advised to wait until the problem resolves – Findlay v. Holmes, ( unreported July 3, 1998 – referred to in paragraph 14 of Soper v. Southcott – infra.)

[ 18 ] The Ontario Court of Appeal articulated the diligence expected of claimants in personal injury cases as follows. “Limitation periods are not enacted to be ignored. The Plaintiff is required to act with due diligence in acquiring facts in order to be fully apprized of the material facts upon which a negligence or malpractice claim can be based. This includes acting with diligence in requesting and receiving a medical opinion, if required, so as not to delay the commencement of the limitation period. In some cases, a medical opinion will be necessary to know whether to institute an action. In other cases, it will be possible to know material facts without a medical opinion, and the medical opinion itself will simply be required as evidence in the litigation. In the latter instances, the time of receipt of the medical opinion is immaterial to the commencement of the running of the limitation period” - Soper v. Southcott (1998) 1998 5359 (ON CA) , 39 O.R. (3d) 737 (C.A.) at page 744.

[ 19 ] While the principles of discoverability are applicable across all causes of action, variations in factual context require recognition of inherent obstructions to timely discernment of the injury, loss or damage as in latent construction defects.

[ 20 ] When dealing with complex matters involving building defects, it is impractical to expect the owner to be able to identify all latent deficiencies at any given point in time just because one patent deficiency had been identified. In such cases, the limitation period begins to run when the Plaintiff knew or ought to have known of the existence of each latent deficiency. Carleton Condominium Corp. No. 21 v. Minto Construction Ltd. (2001), 47 R.P.R. (3d) 32 at para. 52 (Ont. S.C.J.) , aff’d 15 R.P.R. (4 th ) 161 , [2004] O.J. No. 597 (C.A.) .

Analysis:

[ 21 ] The Plaintiffs did not know nor could they be deemed to know that there was a problem with the application of the stone veneer until August 2010.

[ 22 ] This finding of fact derives from response to the same questions posed by Spever J. in Patterson v. Anderson 2004 21532 as follows:

1. What facts did the Plaintiffs know and when did they know them?

2. What facts existed that the Plaintiffs were unaware of and when did they acquire knowledge of them?

3. Is this a case where an expert’s report is required to institute a claim?

4. Did the Plaintiffs act with reasonable diligence?

What facts did the Plaintiffs know and when did they know them?

[ 23 ] They observed efflorescence within two years of completion of the stone veneer installation. The manufacturer reassured them that the observed “building bloom” was normal. The Plaintiffs learned from the manufacturer’s representative in August 2010 that the sustained building bloom might be attributable to installation deficiencies. The Defendants advised them in November 2010 that the installation was good and workmanlike, and if there was a problem, the manufactured stone compound must be somehow deficient.

[ 24 ] The Plaintiffs received the expert report connecting the efflorescence to building code violations in January 2011.

What facts existed that the Plaintiffs were unaware of and when did they acquire knowledge of them?

[ 25 ] Until August 2010, when the manufacturer’s representative suggested there might be more to the efflorescence than natural blooming, the Plaintiffs were unaware of the fact of the existence of a latent defect that required investigation. It was at that point when the Plaintiffs learned that the injury, loss or damage had occurred.

[ 26 ] Until October 2010/January 2011 the Plaintiffs were unaware;

I. that the efflorescence was symptomatic of an latent moisture problem arising from alleged installation deficiencies; and

II. that the problem was anything more than aesthetics.

[ 27 ] It was at this point when the Plaintiffs established the cause of action and who to pursue.

Is this a case where an expert’s report was required to institute a claim?

[ 28 ] The Plaintiffs are not building construction experts. Efflorescence is not innately indicative of deficiency. The professional home inspection report dated October 22, 2010 identifies the existence of the latent code violation. The engineering report identifies a particular deficiency and characterizes the implications. Without those opinions the Plaintiffs did not have the information necessary to found a cause of action. Mr. Proulx’s career is in masonry and he denies deficiencies in installation of the veneer.

[ 29 ] A claim for damages arising from repairs to the crack, first noted in 2007 is barred by the Act but that does not delimit claims arising from other latent deficiencies. Prior to August 2010, the Plaintiffs did not know whether or not what they observed constituted deficiency in workmanship, or product, or whether it was a normal phenomenon. Before that the only information they had was that the bloom is a normal incident of masonry product. The details of the cause of action were particularized by the home inspector and engineer.

Did the Plaintiffs act with reasonable diligence?

[ 30 ] Plaintiffs are not obliged to search for deficiencies. They are entitled to rely on the Defendants’ commitment to capable workmanship. They enquired from the experts in 2008 and 2010. In 2008 they were advised that the bloom is a normal event and not to worry.

[ 31 ] The Defendants argues that the Plaintiff is expected as part of reasonable diligence to independently verify the opinion of anyone with a conflict of interest on the issue under consideration. He argues that the opinion of the manufacturer’s representative in August 2008 was inherently unreliable, in that any party who is a potential defendant in a defective product action will deceive the potential claimant and the Plaintiffs should have sought another. With respect, I disagree. The premise for the relief from commencement of limitation periods in circumstances of fraudulent concealment belies that argument. The Plaintiff purchased product manufactured by a well known business operation and is entitled to rely on their good faith in matters involving their product, at least until there is reason not to.

[ 32 ] The Defendants argues that the engineers report received in January 2011 would have revealed the same deficiency and the two-year delay is indicative of claimants sleeping on their rights. The flaw in the argument in this case is that at the time all the Plaintiffs had were the presence of efflorescence and reassurance that all was good and it implicitly imposes independent audit obligations on the homeowner. It is analogous to the claimant for personal injury arising from negligent surgery who is advised to give the anomalous results time to heal. The clock does not start until the claimant knows there is more to the condition than what time can heal.

Conclusion:

[ 33 ] The motion for summary judgment is dismissed. On these facts the limitation period did not commence until August 2010 at the earliest. The statement of claim was issued within the two-year time limit from discovery of the cause of action. The remaining issues identified in the pleadings require a trial. The Plaintiffs are awarded costs of the motion on a partial indemnity basis. If the litigants are unable to agree on quantification of costs the parties may submit written submissions of no more than three pages within 30 days.

Justice Rick Leroy

Date: July 11, 2012

COURT FILE NO.: SR11-593

DATE: 2012/07/11

SUPERIOR COURT OF JUSTICE - ONTARIO RE: Richard Albini Sabourin and Chantal Ginette Levac v. Rejean Proulx carrying on business as Rejean Proulx Masonry and 1605878 Ontario Inc. BEFORE: Justice Rick Leroy COUNSEL: Jean-Marc Lefebvre, counsel for the Plaintiffs Prakash Pooran, counsel for the Defendants ENDORSEMENT Justice Rick Leroy

RELEASED: July 11, 2012