BRACEBRIDGE

COURT FILE NO.: CV-08-70

DATE: 20130423

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ELEANOR M. LEWIS

Plaintiff/Responding Party

– and –

WEISMILLER LUMBER LIMITED, TRADITIONAL ROOFWORKS INC., PINE ROOF CANADA INC., WAYNE IRWIN and SCOTT DORAN

Defendants/Moving Party

D.A. Morin, for the Plaintiff as Responding Party

S.R. Fairley, for the Defendants as Moving Party

HEARD: April 10, 2013

REASONS FOR DECISION ON MOTION

R. MacKINNON J.

Overview

[1] The plaintiff sues in this action for the cost of two roof replacements to the same roof. Her pine roof was installed in 1997 when her home was built. It had been distributed by Pine Roof Canada whose marketing materials advertised it carried a 50 year warranty. Her general contractor was Scott Doran but the home lumber package was purchased directly by her from the defendant Weismiller Lumber Limited which operated in Bala as Tim-Br Mart.

[2] The pine roof shingles deteriorated and were replaced by her in 2006. Her claim in this suit is that Weismiller pay the entire cost of the 2006 roof replacement and also an expected further replacement in 2016, both within the alleged 50 year warranty period.

[3] Traditional Roofworks Inc. and Pine Roof Canada Inc. supplied the roofing products to Weismiller. While this lawsuit remains outstanding against them, it is asserted to me that they may both be insolvent. Wayne Irwin was a principal of both but the action has been dismissed against him personally. It remains outstanding against both Mr. Doran and Weismiller Lumber.

[4] Weismiller now moves for summary judgment dismissing the action against it with costs, arguing that there is no genuine issue requiring a trial with respect to its defence. It argues both that it gave no contractual warranty at all to the plaintiff and has no liability to her in either contract or tort because her claim was commenced after the expiry of the two year limitation period in the s.5 of the Limitations Act, 2002 S.O. 2002, c.24 schedule “B”.

[5] Mrs. Lewis defends the motion, arguing that:

(a) Weismiller did provide her with a contractual warranty;

(b) it breached that warranty;

(c) it also breached an implied condition of sale that the goods would be reasonably fit for their intended purpose and be of merchantable quality;

(d) it negligently represented to her that the roof was durable and would last 50 years; and

(e) her claim is not statute barred.

Background

[6] In 1997 Mrs. Lewis and her husband hired the defendant home builder Scott Doran as contractor to build a cottage on their Bala area island. They had met Mr. Doran at the Cottage Life spring 1997 trade show and were also introduced to the pine shingle product then being promoted at the show by Pine Roof Canada. They were informed at the show by Pine Roof of the 50 year guarantee. They were also given the address of a home in Mississauga which utilized pine shingles. They viewed that installation and were enthused about the product. They later met with Mr. Doran at a Muskoka home he was building which also utilized pine shingles. Mr. Doran referred them to a draftsman who prepared the plans from Mrs. Lewis’ design.

[7] Before contacting Tim-Br Mart, the Lewises were in possession of Pine Roof Canada’s marketing brochure specifying its written 50 year guarantee. Mr. Lewis, for his wife, took the plans to Weismiller in September of 1997 to request a material quotation. That was the first involvement at all by the plaintiffs on this project with Weismiller. Mr. Goltz of Weismiller told Mr. Lewis that pine shingles were an excellent product and that Weismiller was selling lots of them. He also told Mr. Lewis about the existence of a 50 year warranty but it is clear he did not say who was warranting – nor did he say whether or not the warranty was in writing. The evidence is clear, however, that Mr. Goltz did not tell Mr. or Mrs. Lewis it was a Weismiller warranty or guarantee.

[8] Weismiller is a retailer of building and construction materials manufactured by third parties. The evidence discloses that it does not manufacture any of the products that it supplies to its customers, including the pine roofing on this project. Many of the products it sells carry warranties offered by manufacturers on which it may provide information.

[9] Weismiller was not involved at all with the design or specification of the Lewis residence. Its communications with Mrs. Lewis were all through her husband and/or her contractor Mr. Doran. None of its’ representatives were involved with the plaintiffs at all at the 1997 Cottage Life trade show. After the show ended, it entered into an exclusive Muskoka distribution agreement with Pine Roof Canada for its pine shingles. The order of pine shakes for the Lewis project was the first Weismiller had filled. In mid-October 1997, after receipt of the cost estimate, the plaintiff and her husband put money on deposit with Weismiller so their contractor, Mr. Doran, could draw against it for the supply of construction materials. At no time did the plaintiff or her husband consider any other pine shingles except those distributed by Pine Roof Canada.

[10] The evidence is that Weismiller had not previously sold pine shingles and had not heard of the product before first discussing it with Mr. Doran in the context of the Lewis project. Mr. Doran introduced Pine Roof Canada to Weismiller. Weismiller then made inquiries to confirm that was it was able to obtain and supply the shakes Mr. Doran specified were what Mrs. Lewis wanted. It then supplied the quantity of product that the Lewises and Mr. Doran requested. In doing so, Pine Roof Canada provided Weismiller with copies of the Pine Roof marketing brochure which Weismiller in turn made available for its’ customers when requested.

[11] Weismiller testified that it gave a copy to Doran of the Pine Roof warranty. Doran testified he did not recall receiving any particulars about the warranty. Doran never asked before construction about the guarantee/warranty particulars. Mr. Lewis testified that at no time did Weismiller tell him one way or the other whether the warranty was from Pine Roof or Weismiller. Though a practicing lawyer, Mr. Lewis testified he did not attempt to get a copy of the document particulars from Pine Roof.

[12] Pine Roof Canada and Traditional Roofworks have acknowledged the existence of their 50 year guarantee on the shingles. They, however, may be insolvent. The evidence is clear that no one at Weismiller/Tim-Br Mart ever acknowledged a Weismiller guarantee or warranty. In May 2006 resolution discussions occurred between Weismiller’s representative, the plaintiffs, and Mr. Irwin of Pine Roof Canada and Traditional Roofworks Inc. Mr. Irwin’s May 25, 2006 report outlined several potential causes for the Lewis shingle deterioration and included a copy of the terms of the warranty that Pine Roof Canada had provided. No remedial work was agreed upon as a result of that meeting.

Roof Damage

[13] On June 14, 2005 the Lewis roof was damaged by hail. The plaintiff filed a claim with her insurer for the cost of replacing a large portion of it. Roof water had entered the residence. She and her husband obtained quotes from various roofing companies to repair the damage. One quotation from R & R Roofing on October 10, 2005 clearly stated:

This is the poorest grade of shake shingle I have ever seen. A roof this age should not show the signs of this kind of break down so early. My recommendation is to replace the entire roof. It is only a matter of a short time that the lakeside will be in the same condition, because of the quality of the shake.

[14] In his reply of November 15, 2005 Mr. Lewis asked R and R for an additional quotation to replace the second side of the residence roof. The evidence is clear that he was then of the view that the second side would also need to be done fairly soon, given its condition. On February 23, 2006 Mr. Lewis wrote Weismiller Lumber on his legal letterhead claiming against Weismiller on the warranty he said Weismiller had provided.

[15] It is clear from the material on this record that Mr. and Mrs. Lewis knew by November 15, 2005 at the latest that:

(a) The quality of the 1997 shingles was substandard, they had deteriorated badly, and the entire roof needed to be replaced;

(b) the problem was entirely with the roofing product and they believed Weismiller was liable due to a Weismiller 50 year warranty;

(c) the roof would not last 50 years; and

(d) they knew who to sue.

[16] On March 28, 2006 Weismiller, through its lawyers, confirmed to the Lewises that at no time had Weismiller ever provided any written or verbal product warranty to them. Despite the denial, Mr. Weismiller and Mr. Lewis engaged in further conversations with Pine Roof in an effort to generate resolution. Those discussions failed. Pine Roof denied liability on June 5, 2006.

[17] No action for breach of contractual warranty was commenced until March 3, 2008. The claim for Sale of Goods Act statutory warranty breach was added in September 2010.

Analysis

[18] The Limitations Act, 2002 provides for a basic limitation period of two years.

Basic limitation period

4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

Discovery

5. (1) A claim is discovered on the early 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 the 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).

Presumption

(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 shown.

[19] It is clear that the addition of allegations of breach under the Sales of Goods Act in the September 2, 2010 statement of claim amendment did not give rise to a new cause of action. While the amendment took place well after the expiry of the limitation period, that does not bar the allegation so long as the original statement of claim of March 3, 2008, had been issued before the expiry of the limitation period.

[20] With respect of the Sale of Goods Act claim, the limitations statute commences to run when a breach of warranty occurs. The breach may occur when the goods are supplied, McBride v. Vacher 1951 Carswell Ont.170. Alternatively, it may occur when the breach is discoverable.

[21] In a tort action, a cause of action arises when all of the elements of wrong exist such that an action can be brought. The cause of action accrues not at the time of the culpable conduct but rather at the time of its injurious consequences. The only pleaded tort claim against Weismiller Lumber is that of negligent misrepresentation – i.e. that the roof would last 50 years. The record is clear that the injurious consequences were known by the plaintiff and by Mr. Lewis, her husband and lawyer by November 15, 2005 at the latest. By that date they knew everything they needed to know about the alleged negligent misrepresentation of Weismiller. Her claim was not issued until March 8, 2008, thereby running afoul of s.4 of the Limitations Act, 2002. She knew by November 15, 2005 that damage had occurred, that it was attributed to by her selection of pine shingles, and that the purchase was made by her, in part, due to what she asserted were representations by Weismiller.

[22] In a contract action, the limitation period begins to run on the date of the breach of the contract. The plaintiff claims both for collateral contractual contract breach and Sale of Goods Act statute breach. She asserts that Weismiller’s breach was its refusal to honour its word to make it right to her for the failed shingles that is the cause of her action. Plaintiff’s counsel asserts that, only when Weismiller refused to provide and pay for new shingles on March 28, 2006, did the two year limitation period start to run. He asserts the earliest the s.4 limitation would have expired was March 28, 2008 – after the statement of claim had been issued.

[23] The entirety of the evidence is that Mr. Goltz of Weismiller told Mr. Lewis in Bala of the existence of a 50 year guarantee/warranty at a time well after Mr. and Mrs. Lewis already knew of it from Pine Roof Canada’s representatives at the spring 1997 Cottage Life trade show – which Weismiller did not attend and after Mr. and Mrs. Lewis had received the Pine Roof brochure referencing the guarantee. There is no evidence whatsoever that Mr. Goltz told the Lewises that the warranty was in fact from Weismiller. There is no evidence whatsoever that Mr. Goltz or anyone from Weismiller at any time told or asserted to Mr. or Mrs. Lewis that Weismiller would make it right.

[24] Before they ordered product from Weismiller, the Lewises had knowledge from Pine Roof Canada’s representatives and from written materials information about the existence of warranty which was outlined in the Pine Roof Canada documentation they were given. They asked to see no warranty details in writing. There is no evidence in this record demonstrating that Weismiller Lumber or anyone, (including its agents, servants or employees) asserted to Lewis that the product would last 50 years, failing which Weismiller itself would replace it. Weismiller did confirm to them there was a 50 year warranty but they already knew about that from their separate dealings with Pine Roof. Nothing that Weismiller’s representatives said or did amounted to a Weismiller contractual undertaking.

[25] By November 15, 2005 at the latest Mr. and Mrs. Lewis both knew their roof had failed and was not going to last 50 years. By that date they had everything they needed to know about their collateral warranty breach and Sale of Goods Act claims. They had everything they needed to know that their roof was not as described and not fit the purpose for which it was intended. By that date, objectively viewed, their claims were then fully discovered. By that date a reasonable person with the abilities and in the circumstances of Mr. and Mrs. Lewis ought to have known of the matters enumerated in paragraph 5(1)(a) of the Limitations Act, 2002.

The Law

[26] Weismiller Lumber, in its statement of defence, has pleaded limitation of the plaintiff’s claims. Rule 20 of the Rules of Civil Procedure provides that a court shall grant judgment if it is satisfied that there is no genuine issue requiring a trial with respect to a defence. This is a defence motion for summary judgment. I have taken a hard look at the evidence to determine whether there is a genuine issue requiring a trial. The onus of establishing no triable issue is on the moving party defendant. Because of the change to Rule 20, a case need not proceed to trial unless a trial is genuinely required. This is one of those types of cases well suited to the summary judgment rule.

[27] Expiry of a limitation period is a radical defect going to the heart of a claim. Sedore v. Fleming 2010 CarswellOnt. 1910 (Ont. Sup. Ct.) at para. 8.

[28] Expert opinions are not required in all cases. Kowal v. Shyiak, (2012) (Ont. C.A.) 512 at para. 18. It is clear that the discoverability rule applies to all cases in which a limitation period applies and is a rule of general application. Certainty of a defendant’s responsibility for the act or omission that caused or contributed to the loss is not a requirement. It is enough for a plaintiff to have prima facie grounds to infer that the acts or omissions were caused by the party or parties identified. Kowal v. Shyiak, supra, at para. 18.

[29] In October 2005 Mrs. Lewis became fully aware that the shingles on her roof were the poorest grade of shingle R & R Roofing had seen and would need to be replaced. I have already found that by November 15, 2005 at the latest Mrs. Lewis and her husband (who was then acting for her as lawyer) were aware of her cause of action. Mr. Lewis wrote to Weismiller on February 23, 2006 to outline his demands. Even that letter was sent more than two years before the issuance of her statement of claim on March 3, 2008.

[30] Summary judgment must be granted in favour of the defendant Weismiller on the basis of the expiry of the two year limitation period. Even if summary judgment were not granted on the limitation issue, I find there is no genuine issue requiring a trial as to whether Weismiller contracted with Mrs. Lewis to guarantee her shingles would last 50 years without limitation. I have reviewed the entire record to determine the particulars of the claimed warranty, the identity of the manufacturer, and the terms of the warranty. I have reviewed and considered the evidence of alleged contract, the evidence of the oral assertions made to the plaintiff consumer, the conduct of Weismiller as distributor/seller, and the promotional advertising literature of Pine Roof. For the reasons I have given, I find there is no genuine issue requiring a trial as to whether Weismiller entered into a contract guarantee that it would replace the plaintiff’s roof without limitation, or at all, over the 50 year period. There is no evidence that it did so.

Conclusion

[31] For the foregoing reasons the plaintiff’s claims against the defendant Weismiller Lumber Limited are all dismissed with costs.

[32] If the parties cannot agree on the quantum of costs of this motion and of the action as against Weismiller, the claiming party may, within twenty days of the release of these Reasons, serve and file written submissions of no more than four pages, single-spaced, together with a Bill of Costs. The responding party on costs may serve and file materials of the same length within a further ten days. Reply materials may be delivered within five days thereafter. All costs materials shall be forwarded to me in care of my secretary at Barrie.

R. MacKINNON J.

Released: April 23, 2013