ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANNE WEINBAUM, in her personal capacity and in her capacity as Estate Trustee of the Estate of Jack Weinbaum and RONALD APPLEBY in his capacity as Estate Trustee of the Estate of Jack Weinbaum
Plaintiffs
– and –
DAVID WEIDBERG, QUALITEX CONTRACTING LTD., STAR WEST PLASTER & CEMENT FINISHING INC., and SOLAB ROOFING LIMITED
Defendant
– and –
STAN P. MAKOW, MAKOW ASSOCIATES ARCHITECT INC. and CITY OF TORONTO
Third Parties
No one appearing
Iain Peck, for the Defendant
John Little, for the Third Parties
HEARD: April 12, 2016
G. DOW, J.
REASONS FOR DECISION
1This is a motion by the third parties, Stan P. Makow (“Stan Makow”) and Makow Associates Architect Inc. (“Makow”) for summary judgment on the basis its May 7, 1993 contract with the plaintiff estate limited its liability to six years after services were substantially performed. The parties agree the six years had long passed by the time the plaintiff’s estate commenced action against the defendants on January 29, 2010. The Third Party claim by the defendant general contractor, David Weidberg (“Weidberg”) was commenced October 13, 2011. Weidberg opposes this motion. The Court was advised the remaining parties took no position and did not attend or participate.
2I was also advised and had before me a companion Motion Record prepared by the third parties which sought to dismiss a third party claim against them commenced by the defendant, Solab Roofing Limited. However, I was advised that motion would not be proceeding as that third party claim has been resolved and dismissed.
Background
3As stated, Makow entered into a “Canadian Standard Form of Agreement Between Client and Architect Abbreviated Version” on May 9, 1993 to design and draft renovations to the home of Jack Weinbaum (who passed away December 5, 2014). The parties agree the contract provided a six-year limitation of liability for all claims following “substantial performance of the work” which had occurred by the end of 1994.
4In or about August of 2008, the plaintiff alleges discovering water damage and mold growth within the structure requiring extensive remediation and repair. As pleaded, Weinberg was the general contractor and construction supervisor and the remaining defendants were hired either by the plaintiff or Weidberg and did portions of the renovation work in 1993 and 1994.
5The parties also agree this motion was an appropriate application of the principle of proportionate and expeditious determination of an issue under Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87.
Issues
6At issue is the application of the Limitations Act, 2002, S.O. 2002 c.24, and specifically, whether section 18 applies. Section 18 provides for a claim for contribution and indemnity to be commenced within two years after “the day on which the first alleged wrongdoer was served with the claim in respect of which contribution and indemnity is sought”. Section 18 also states this applies “whether the right to contribution and indemnity arises in respect of a tort or otherwise”. Does this supersede the law, as submitted by Makow, that where a party has protected itself from liability by contract from the plaintiff, a defendant cannot compel the protected party to share the burden of compensating the injured party?
7If the first issue is resolved in favour of Makow, a second issue was raised dealing with whether the protection offered to Makow extends to Stan Makow as one of its employees/architect that did the actual work (and likely an officer and director).
Analysis
8The source of the position taken by the third parties is the Supreme Court of Canada decision in Giffels Associates Ltd. v. Eastern Construction Co., 1978 CanLII 39 (SCC), [1978], 2 S.C.R. 1346, which reviewed a similar situation. In its reasons, Chief Justice Laskin (at page 1355) assumed where a plaintiff chose to sue only one of two contractors that each had a separate contract with the plaintiff after the plaintiff suffers damages from concurrent breaches of those contracts, it would be inequitable for that one contractor to bear the entire brunt of the plaintiff’s loss. However, the court accepted that it was open to one of the contractors to protect itself from liability by a term in its contact and, as a result, the other contractor could not assert a right which would go behind that agreement and force the protected contractor to share in compensating the plaintiff for its losses.
9This principle has been accepted by the Supreme Court of Canada as recently as July 29, 2011 in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at paragraph 29. The principle has also been referred to in the decision of this court released November 24, 2011, Hiram Walker & Sons Ltd. v. Shaw Stone Webster Canada L.P., 2011 ONSC 6869, at paragraph 61.
10This compares with the reasons of Justice Feldman on behalf of a five-member panel of the Court of Appeal in Waterloo Region District School Board et al. v. CRD Construction Ltd. et al., 2010 ONCA 838 where the defendant Truax Engineering Ltd. (“Truax”) provided engineering services in the rebuilding of a wall of a gymnasium of the plaintiff. Truax completed its work by February 19, 2003 and (then) section 46(1) of the Professional Engineering Act, R.S.O. 1990, c.P.28, provided a 12-month limitation period for actions against it. The plaintiff’s action was not commenced until June 23, 2008. Defendants in the action crossclaimed against each other within the two years permitted by the Limitations Act, supra, and the motion by Truax for summary judgment dismissing the crossclaims was denied by the motions judge and on appeal. No direct consideration was given to the principles enunciated in Giffels Associates Ltd. v. Eastern Construction Co., supra.
11However, Justice Feldman did refer to the decision of HSBC Securities (Canada) Inc. v. Davies, Ward & Beck, 2005 CanLII 1626 (ON CA), [2005] O.J. No. 277 (C.A.) which reviewed the Giffels decision (at paragraph 17). The party in that case in the position of Weidberg submitted it preserved the integrity of the limitation regime and Justice Feldman ruled to the contrary. As a result, I shall as well. While the Giffels reasoning is logical and fair, it is also clear Justice Feldman accepted the intent of the legislature to alter the law so that, as indicated in paragraph 24 of her decision, “a claim for contribution and indemnity, whether in tort or otherwise, now has a two-year limitation period that is presumed to run from the date when the person who seeks contribution and indemnity is served with the plaintiff’s clam that gives rise to its claim over.”
Issue – Coverage for Stan Makow
12While these comments are moot, this defendant points to the fact the contract is only between Weinbaum and the third party corporation. Weidberg referred to the Agreement which only names the corporate defendant as the “Architect”. Further, it referenced clause 3.2.1, a limitation of liability clause that contains the sentence “The Architect in this paragraph includes officers, directors, architects, his employees, representatives and consultants”. This sentence was not included in clause 3.2.6 which provided for the six-year limitation period. As a result, this defendant submits that limitation clause did not apply to Stan Makow as an employee or architect.
13The parties agree the analysis to be conducted is set out in London Drugs Ltd. v. Kuehne and Nagel international Ltd., 1992 CanLII 41 (SCC), [1992] 3 S.C.R. 299, which indicates a court shall review whether:
a) the claim extends to the benefit of the party seeking to rely on it either expressly or impliedly; and
b) the activities performed were the services provided for in the contract.
14Weidberg accepts that Makow met the second part of the test. Regarding the first part, Weidberg submits case law has given this test a narrow interpretation that is very specific and limited. As a result, Stan Makow falls outside the explicit terms of the contract. I agree. Regarding an implied inclusion, the failure to specifically include employees, officers, directors or the architect in that clause as occurs in clause 3.2.1 is not, in my view, definitive.
15In London Drugs, the court, at paragraph 267 of its reasons considers “all the circumstances” including the nature of the relationship and the fact the plaintiff and the moving party knew that the individuals would be involved in performing the contractual obligation. In my view, it cannot be much clearer that a contract with an architect’s corporate entity to design and draft renovations to a residential home is for work to be done by the architect himself or herself.
16As a result, were it necessary, I would have concluded Stan Makow fell within the implied extension provided.
Costs
17The defendant, Weidberg has been successful and is entitled to costs. Costs Outlines prepared by the parties included a claim by Weidberg in the amount of $4,802.82. The Costs Outline prepared by the third parties was in the amount of $17,856.51 on a partial indemnity basis. Counsel for the third parties sensibly took no issue with the claim as quantified by the defendant, Weidberg, and I would fix costs in the amount of $4,802.82 for this motion payable by the third parties to the defendant Weidberg forthwith.
Mr. Justice G. Dow
Released: May 25, 2016
CITATION: Weinbaum v. Weidberg, 2016 ONSC 2525
COURT FILE NO.: CV-10-395992-00A1
DATE: 2016/05/25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANNE WEINBAUM, in her personal capacity and in her capacity as Estate Trustee of the Estate of Jack Weinbaum and RONALD APPLEBY in his capacity as Estate Trustee of the Estate of Jack Weinbaum
Plaintiffs
– and –
DAVID WEIDBERG, QUALITEX CONTRACTING LTD., STAR WEST PLASTER & CEMENT FINISHING INC., and SOLAB ROOFING LIMITED
Defendant
– and –
STAN P. MAKOW, MAKOW ASSOCIATES ARCHITECT INC. and CITY OF TORONTO
Third Parties
REASONS FOR JUDGMENT
Mr. Justice G. Dow
Released: May 25, 2016