Court File and Parties

COURT FILE NO.: C-751-11
DATE: 2013-02-20

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Gateman Milloy Inc., Plaintiff

AND:

Brownstone Masonry, Defendant

BEFORE: The Honourable Mr. Justice J. W. Sloan

COUNSEL:
Gosia Bawolski, for the Plaintiff

Jeremy A. Forrest, for the Defendant

HEARD: February 14, 2013

Endorsement

[1] Gateman was the general contractor responsible to build a commercial building.

[2] Brownstone was a subcontractor which hired another subcontractor to install cultured stone to the exterior of the building.

[3] The facts are not in dispute.

[4] After construction was completed the owner emailed Gateman on May 17, 2009 with a list of deficiencies which included a complaint of the roof leaking.

[5] Despite some discussions and an email dated June 8, 2009 from Gateman to Brownstone which enclosed the list of deficiencies the leaking continued.

[6] On September 3, 2009 a meeting took place at the building and when water was sprayed on it for 10 minutes, the water penetrated through the cultured stone.

[7] The owner advised Gateman on September 21, 2009 that it had commissioned the “Halsall” report. This report was sent to Gateman on October 14, 2009. It placed blame for the leakage problem on Brownstone.

[8] After being pressured by Gateman to repair the problem, Brownstone commissioned and produced the “Rohmann” report dated November 16, 2009 which absolved Brownstone of any wrongdoing.

[9] Gateman commenced an action against Brownstone on August 15, 2011.

[10] Brownstone now seeks to have the action dismissed, submitting that the action was commenced more than two years after the cause of action arose.

[11] Brownstone submits that on May 17, 2009 Gateman knew there was a problem and as an experienced general contractor it would have known what possible sub trades would probably be responsible. They submit that Gateman had all the facts and had an obligation to investigate to determine who was at fault and to commence an action within two years of May 17, 2009 if they could not resolve it in some other manner.

[12] Brownstone relies on Central Trust Co. v Rafuse 1986 29 (SCC), [1986] 2 S.C.R. 147 at para. 77 which states “a cause of action arises for the purposes of the limitation period when the material facts on which it is based have been discovered or ought to have been discovered by the plaintiff by an exercise of reasonable diligence” (the underlining is mine)

[13] The only material fact known on May 17, 2009 was that the roof leaked. There is no evidence on May 17, 2009 suggesting why it leaked or which sub trade(s) was responsible.

[14] On May 20, 2009, Brownstone gave a warranty for their workmanship and materials to both Gateman and the owner.

[15] Based on the fact, that we now have two independent and diametrically opposed expert’s reports not all of the facts necessary to commence a court action would have been known in May 2009.

[16] There is evidence that Gateman tried to have Brownstone look at, and, if it was their fault fix the problem.

[17] The action claims a breach of contract and the Plaintiff submits this did not occur until the “Rohmann” report was produced on November 16, 2009 because it was not until then that it was clear that Brownstone would not fix the problem.

[18] There are several questions to be answered.

a) Did the cause of action arise before August 15, 2009 for purposes of the Limitation Act?

b) If it did, when did it arise?

c) If it did not arise on May 17, 2009, but arose before August 15, 2009 what date did it arise on and what was the triggering event?

[19] On the evidence before me, I am unable to conclude that the limitation period commenced on May17, 2009. All that was known on that date by Gateman, was that the roof leaked.

[20] Surly Gateman had to make inquiries inspections and hold meetings with certain sub trades in an effort to have the problem resolved. In fact they did this.

[21] The question of how long Gateman should be afforded to make inquiries and satisfy itself who to sue is a difficult one.

[22] Given that there are two independent and diametrically opposed expert’s reports the answer of who was responsible does not appear to have been an easy one. While absolute certainty is not required, surely a degree of certainty is. I do not find that that the period between May 17 and the delivery of the “Halsall” report of October 14, 2009 to be unreasonably long for the purpose of investigating.

[23] I therefore dismiss the motion with costs.

[24] If the parties are unable to agree on costs Mr. Forrest shall forward his brief submissions on costs to me by February 27, 2013. Ms. Bawolska shall forward her brief response to me by March 6, 2013. Mr. Forrest shall then forward his reply, if any, to me by March 11, 2013. Cost submissions may be sent to my attention by email, care of Kitchener.Superior.Court@ontario.ca.

J. W. Sloan J.

Date: February 20, 2013