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: Ryan P. Zigler, for the Defendant/Moving Party,
T M D Investments Limited and Henry Dlugosz

Megan Marrie, for the Responding Parties, Thomas E. Brown, Architect
and Paul McIntosh

HEARD: October 23, 2013

ruling BY ENDORSEMENT

by the honourable mr. justice r.d. reilly

Endorsement

[1] By this motion filed on September 27, 2012, the defendants, T M D Investments Limited and Henry Dlugosz, seek several forms of relief, specifically, an order for summary judgment dismissing the plaintiffs’ claim, an order or declaration that the crossclaim of the defendant, the Town of Gravenhurst, is a nullity and in the alternative an order for summary judgment dismissing the crossclaim, together with an order dismissing the motion by Gravenhurst for a leave to amend its crossclaim (already dealt with).

[2] In the alternative, if Gravenhurst is granted leave to amend the crossclaim (which has been granted), an order that Gravenhurst provide further and better particulars of the allegations of negligence and (at issue directly in this motion) a request for an order granting leave to T M D Investments Limited and Henry Dlugosz to issue a third party claim against Paul McIntosh and Thomas E. Brown, Architect. It is this latter claim which I am now asked to determine. The other issues raised by this motion may be addressed on a return of the motion on November 4 and 5, 2013.

[3] “Thomas E. Brown, Architect” may be the name or the former name of the firm for which Paul McIntosh, the actual party before the court works. I will therefore simply refer to the architect or Mr. McIntosh. Mr. McIntosh apparently was retained in 1990 to perform certain architectural services related to the design of the cottage, the preparation of construction drawings and the construction of the cottage. “Limited additional services” were to be provided on an “as requested” basis. Architectural drawings were indeed provided by Mr. McIntosh. They were used by T M D and Mr. Dlugosz in the construction of the cottage. Certain inspections with respect to the construction may have been performed by the Town of Gravenhurst. That is as yet not entirely clear. However, substantial performance of the project was certified by the owner of the property, Kathleen Hoicka, on or about December 1992 and the family soon after apparently began to assume residence. Based on the significant affidavit evidence presented to the court, problems then arose a number of years later in 2008. This litigation was commenced in 2009. This motion by the defendants, T M D Investments Limited and Henry Dlugosz, seeks a claim for contribution and indemnity against the architect. The motion was brought on September 26, 2012.

[4] I have carefully considered the material filed on the motion, together with counsels’ submissions. The respondent, the proposed third parties, Thomas E. Brown, Architect and Paul McIntosh plead that this request is both unjustified and out of time. There is no basis say these proposed third parties on the evidentiary record yet before the court for any claim of negligence against them. Moreover and perhaps more importantly, they say that this claim is in violation of the Limitations Act. I agree. Having carefully considered all the material filed, any alleged negligence on the part of the architect would be well known to all parties literally years before this motion was brought. I need not deal in detail with the jurisprudence dealing with the Limitations Act. I have referred to it briefly in my first ruling on these motions, including the Ontario Court of Appeal case of Joseph v. Paramount Canada’s Wonderland, 2008 ONCA 469, 2008, 90 O.R. (3d) 401. Having perused the affidavits filed on these motions, I conclude that any alleged negligence on the part of the architect many years ago would be barred by the Statute of Limitations. Beyond that I can say, somewhat unjudicially perhaps, that from the affidavit evidence filed, I can see no basis for a viable claim against the architect, Mr. Paul McIntosh. In all candour, I see the issue of eaves troughs and downspouts to be something of a red herring. They were not then nor are they now required pursuant to the Ontario Building Code. On the affidavit evidence provided, I can see nothing that would provide a viable cause of action against the architect. His participation in this litigation would only further complicate issues in this already regrettably complex litigation. I therefore dismiss the motion by T M D and Mr. Dlugosz for leave to issue the third party claim. If counsel cannot resolve the issue of costs, they may make brief written submissions to me in chambers within 30 days of publication of this ruling. The other relief sought by this motion is adjourned to a return of these motions on November 4and 5, 2013.

R.D. Reilly J.

Released: October 29, 2013