SUPERIOR COURT OF JUSTICE

THUNDER BAY SMALL CLAIMS COURT

Court File No.: SC-12-0156

JOHN MARELLO and LAURIE MARELLO,
Plaintiffs

-and-

AMERIGO COLTELLARO and 428711 ONTARIO LIMITED o/a AMERIGO CONSTRUCTION COMPANY,
Defendants.

REASONS ON MOTION

of Deputy Judge K. Cleghorn, delivered
April 17, 2013 at Thunder Bay, Ontario

APPEARANCES

Holly Walbourne, For Defendants (Moving Parties).
Brennan Sacevich, For Plaintiffs (Responding Parties).

REASONS ON MOTION

CLEGHORN (Dep. Judge-SCC)

This motion was heard on March 22, 2013 at Thunder Bay, Ontario. The decision was reserved on that day.

THE ISSUE

The Defendants have brought a motion to strike the Amended Plaintiff’s Claim.

There is no dispute with respect to the essential facts of the matter. The Plaintiff issued the Plaintiff’s Claim on February 28, 2012. The Plaintiffs issued an Amended Plaintiff’s Claim on July 31, 2012. The claim alleges that the Defendants have failed to properly construct an in-ground swimming pool for the Plaintiffs or have done so negligently. The Plaintiffs seek payment of the sum of $15,120.00 and special damages of $10,000.00, among other relief.

The Defendants request that the Amended Plaintiff’s Claim be struck on the basis that the Limitations Act, S.O. 2002, Chapter 24, as amended, bars the action. For the purpose of this Motion, the Defendants concede that all statements contained in the Amended Plaintiff’s Claim are true. The argument of the Defendants is that the action is statute-barred on the basis that the Plaintiffs were aware as early as spring of 2009 that a cause of action existed as against the Defendants. Therefore, the Plaintiffs were required to commence this action no later than spring of 2011, as opposed to February of 2011 when it was actually brought.

THE EVIDENCE

On the basis of the concession made by the Defendants, and for the purpose of this Motion only, I find as facts all of the allegations of fact as set out in the Amended Plaintiff’s Claim issued on July 31, 2012. The Amended Plaintiff’s Claim is attached hereto as Schedule “A” to these Reasons on Motion.

DISCUSSION

Rule 12.01 (1) of the Rules of the Small Claims Court provides:

“12.02 (1) The court may, on motion, strike out or amend all or part of any document that,

(a) discloses no reasonable cause of action or defence;

(b) may delay or make it difficult to have a fair trial; or

(c) is inflammatory, a waste of time, a nuisance or an abuse of the court’s process.”

The Defendants argue that I may strike the Amended Plaintiff’s Claim on the basis that it is “a waste of time.” It is a waste of time because it cannot succeed due to the provisions of the Limitations Act. The relevant provisions of the Limitations Act are:

“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. 2002, c. 24, Sched. B, s. 4.

Discovery

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). 2002, c. 24, Sched. B, s. 5 (1).

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 proved. 2002, c. 24, Sched. B, s. 5 (2).”

The onus is on the Defendants to establish that the claim is statute-barred in order to obtain the relief sought on the Motion. Although this is not a Motion for summary judgment per se, the impact is identical. I must be satisfied that there is no doubt that the limitations defence is an absolute bar to the action in order to conclude that it is a waste of time for matters to proceed further. The objective of Rule 12.02 is to allow the court to dispose of those cases without merit at an early stage without requiring parties to spend considerable time, money and energy on a pointless and wasteful exercise. It permits the Court to devote the time and energy to those cases which are arguable and have merit.

It should be noted that this, ultimately, is a matter of judicial discretion. In most cases, parties should be allowed the opportunity to advance a claim and/or defend one by having their day in Court. It remains a hallmark of our system of justice that matters should be decided, whenever possible, after a full and complete hearing on the merits, with the active participation of everyone involved. Those cases should consider all relevant and appropriate evidence and be decided based upon the applicable law by a neutral trier of fact.

In this instance, I am skeptical that the Plaintiffs’ case can succeed as a result of the passage of time subsequent to the discovery of the loss, damage or injury. It is not, however, impossible for the Court to conclude that the loss, damage or injury to the Plaintiffs occurred as late as the summer of 2010 when the Defendants were making continuing efforts to rectify the construction difficulties. If the Defendants had indeed rectified the problems with the pool construction at that time, there would have been no law suit commenced. The Plaintiffs had a reasonable expectation, or at least a hope, that the problems would be resolved with the pool construction through the continuing good faith efforts of the Defendants to satisfy their customer.

If the Defendants were making efforts to rectify the alleged construction deficiencies, the commencement of a proceeding would have deterred that effort. A Court proceeding was likely not in the contemplation of the Plaintiffs as late as summer of 2010. Their focus, and rightly so, was on the completion of their pool to their satisfaction. To establish the limitations defence, the Defendants must prove that, for the Plaintiffs, “having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it”; see section 5(1)(iv) of the Limitations Act. It is hard to fathom that a proceeding would be appropriate to remedy the situation when there was a continuing relationship between the parties. The relationship needed to be a positive one and focused on the issue at hand. One would not expect any good faith effort on the part of the Defendants to work on the pool if they were embroiled in litigation at the time. I find that a proceeding was decidedly not the appropriate means to remedy the situation under the circumstances existing in summer of 2010.

If there is not a limitation defence virtually guaranteed to succeed, this action is not a “waste of time”. The Court cannot, based upon the information available at this time, strike the Amended Plaintiff’s Claim.

To be clear, I am not deciding the issue of the limitation defence definitely. I am merely stating that the issue cannot be decided at this time on a Motion without the additional facts that might come out in evidence beyond what is stated in a general way in the pleading. There is not any issue estoppel in this regard. It is anticipated that the Defendants can advance the limitation argument fully and completely at the trial of the action on the merits, if they so choose.

DECISION

As a result, the Defendants’ Motion is dismissed, without prejudice to their right to advance the limitation defence at trial.

In most cases, the successful party would be awarded costs. I am mindful that the Defendants may be successful on their limitation argument in the fullness of time. Costs of the Motion are reserved to the judge who ultimately disposes of this matter.

I thank all parties for their presentation of this interesting case and for their courtesy to the Court and to each other.

Order accordingly.

K. CLEGHORN, Deputy Judge-SCC

Dated at Thunder Bay, Ontario this 17th day of April, 2013.