Court File and Parties

COURT FILE NO.: C-528-09
DATE: 2013-10-29

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: John Hoicka and Kathleen Hoicka, Plaintiffs

and

The Corporation of the Town of Gravenhurst, T M D Investments Limited,
and Henry Dlugosz, Defendants

BEFORE: The Honourable Mr. Justice R.D. Reilly

COUNSEL:
Nolen Downer, for the Defendant/Moving Party,
The Corporation of the Town of Gravenhurst

Ryan P. Zigler, for the Defendants/Responding Parties, T M D Investments Limited and Henry Dlugosz,

HEARD: October 23, 2013

ruling BY ENDORSEMENT

by the honourable mr. justice r.d. reilly

Endorsement

[1] This is the first in a series of motions brought by the parties to this litigation. I have been asked, as case management judge, to preside all of the motions in an attempt to move this litigation forward. By this, the first of the motions to be argued, the defendant, The Corporation of the Town of Gravenhurst seeks an order permitting the Town to amend its statement of defence and crossclaim. The defendant Town also seeks an order that the co-defendants, T M D Investments Limited and Henry Dlugosz, re-attend at an examination for discovery to provide answers to questions refused and undertakings given at the earlier examination for discovery on May 8, 2012 and to answer any additional questions that may arise from those answers and refusals. The latter relief is adjourned on consent for a continuation of the series of motions which is set for November 4 and 5, 2013.

[2] I therefore turn my attention to the relief specifically addressed this day, a request for an order permitting the defendant Town to amend its statement of defence and crossclaim. The request for relief is restricted to the crossclaim. My ruling shall be brief as the parties await my decision, in order perhaps, to better consider their approach to the remaining relief sought by the outstanding motions.

[3] The original statement of defence and crossclaim was filed on November 12, 2009. The crossclaim states:

This defendant claims against the defendant, T M D Investments Limited and Henry Dlugosz:

(a) Contribution and indemnity pursuant to the provisions of the Negligence Act, R.S.O. 1990, see N.1, as amended;

[4] The Defendant Town also seeks ancillary relief, but it is this paragraph (a) above that the Town seeks to amend by this motion.

[5] The proposed amendment is found in paragraph 21 of the proposed amended statement of defence and crossclaim. Section 21 states:

This defendant states that if the plaintiffs have suffered the damages alleged in the statement of claim, which is not admitted but denied, such damages were caused or contributed to by the negligence and breach of contract of the defendants, T M D Investments Limited and Henry Dlugosz, the particulars of which are as follows:

(a) they failed to ensure construction of the cottage conformed with the plans submitted;

(b) they failed to obtained building inspections when required;

(c) they constructed the cottage in unworkmanlike manner;

(d) they failed to rectify errors in construction when same came to their attention;

(e) they failed to retain and obtain proper engineering drawings and recommendations for identified structural deficiencies;

(f) they failed to advise the plaintiffs and this defendant of construction errors and alterations from submitted plans;

(g) they failed to ensure compliance with the applicable Building Code at the time;

(h) they misrepresented to the plaintiffs and this defendant an appropriate engineering assessment had been completed in relation to the plans;

(i) they actively concealed construction defects and Building Code infractions;

(j) they failed to obtain a final building inspection and ensure that the plaintiffs did so;

(k) they failed to inform this defendant of ongoing disputes with the plaintiffs over the quality of construction and completion of the project;

(l) they failed to properly supervise their subcontractors;

(m) they failed to rectify deficiencies in construction when same were brought to their attention;

(n) they were not qualified to undertake the project;

(o) they misrepresented their qualifications to the plaintiffs to undertake the project;

(p) they failed to advise the plaintiffs or this defendant of their inexperience in residential construction;

(q) they knew or ought to have known that they were incapable of completing the project in a good and workmanlike manner; and

(r) they were incompetent builders.

[6] Suffice to say that these allegations expand to some considerable degree the general allegation in the original crossclaim for a “contribution and indemnity pursuant to the provisions of the Negligence Act”.

[7] The responding parties, T M D Investments Limited and Henry Dlugosz, essentially take the position that these allegations are not simply particulars with respect to a general allegation of negligence but constitute a new cause of action. Thus, say the respondents, the amendment should not be permitted because it would violate the Limitations Act. I note that the original statement of defence and crossclaim was filed November 12, 2009. This notice of motion was filed September 21, 2012, which the respondents say is beyond the two year limitation period permitted in law.

[8] The court must then determine whether the sought amendment simply provides particulars to the original claim or whether these particulars constitute a “new cause of action” which would be barred by the Statute of Limitations.

[9] The court is mindful of the considerable jurisprudence dealing with the application of the Statute of Limitations going back to the decision of the Court of Appeal for Ontario in the case of Joseph v. Paramount Canada’s Wonderland, 2008 ONCA 469, 2008, 90 O.R. (3d) 401 and including the case of Chrabalowski v. BMO Nesbitt Burns Inc., [2011] O.J. No. 2651, an insightful decision by Mr. Justice Lederer. I am also mindful, however, of the decision of Mr. Justice Lee Ferrier in the case of Philippine/Filipino Centre Toronto v. Portugal, 2010 ONSC 956, [2010] O.J. No. 750, as well as the decision of Master Roger in the case of Spiral Aviation Training Co., LLC v. Canada (Attorney General), [2011] O.J. No. 4341 and the decision of Mr. Justice Ground in the case of Veltri v. Salmers, Strike & Furlong, [1997] O.J. No. 2617. I apply the wisdom of these judgments to the issue before me.

[10] I also consider the multiple proceedings in this litigation and the numerous affidavits that have been filed. There is nothing in these particulars of negligence (however disputed or contentious) that should take the respondents by surprise or prejudice them in their defence to the claim.

[11] I make one exception. Paragraph 21 (i) alleges that the respondents “actively concealed construction defects and building code infractions”. It is conceded by the moving party that this allegation does not allege negligence on the part of the respondents, but relates more to an allegation of fraud. That allegation cannot form part of an amended crossclaim.

[12] With that exception, I conclude that the proposed amended statement of crossclaim simply particularizes the allegations of negligence set out in the principal crossclaim. Indeed, I might note that these details might have formed the basis for a demand for particulars by the defendants T M D Investments Limited and Henry Dlugosz from the Town of Gravenhurst. Instead, Gravenhurst has simply particularized by this crossclaim its claim for contribution and indemnity for negligence by the other defendants.

[13] I therefore grant the motion with the exception of paragraph 21 (i) of the proposed amended statement of defence and crossclaim.

[14] Given that there are other motions yet to be heard, counsel may wish to wait to address the issue of costs until all motions have been disposed of. I will be available to hear counsel at that time. The remaining issue on this motion is adjourned to the 4th and 5th of November 2013.

R.D. Reilly J.

Released: October 29, 2013