SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO. : CV-12-453495

MOTION HEARD: 20160502

REASONS RELEASED: 20161021

BETWEEN:

TORONTO STANDARD CONDOMINIUM

CORPORATION NO. 2073

Plaintiff

• and-

THE PRINTING FACTORY LOFTS INC., BEAVERBROOK, HOMES INC., formerly known as GEM HOMES LIMITED, AVERTON RESIDENTIAL INC., formerly known as BEAVERBROOK HOMES INC., CITY OF TORONTO, CHANDLER GRAHMA MONTGOMERY SISAM JOINT VENTURE ARCHITECT, ARCADE ARCHITECTS AND DESIGNERS INC., and MONTGOMERY SISAM

ARCHITECTS INC.

Defendants

BEFORE: MASTER D. E. SHORT

COUNSEL: Megan Mackey Fax: (416) 595-8695

• for the Moving Plaintiff

Gary W. Gibbs Fax: (416) 361-1992

-for the Proposed Defendant:

Blackwell Bowick Partnership Limited

RELEASED: October 21, 2016

“Circumstances May Alter Cases”

I. Overview

[1] The plaintiff moved against various entities for a number of amendments to its pleading. All the outstanding issues were resolved with respect to other parties by the time the motion came on for a hearing, except the request to add Blackwell Bowick Partnership Limited, (“Blackwell”). This item was vigorously opposed, argued at some length and then my decision was reserved.

[2] The Plaintiff, TSCC No. 2073, is a condominium corporation registered on May 12, 2010. It results from the conversion of a commercial/industrial building into a residential condominium corporation (the "Conversion Project").

[3] The structure in question is an existing historical building was preserved and incorporated into a residential condominium development. The description of the project in a sale listing for a unit commented that “from the outside, it's one of the more visually appealing residential adaptive reuse projects around town, having been built on the site of the former printing presses of Rolph Clark Stone. In fact, the original three-storey building from 1913 remains an integral part of the condominium, with an eight-story tower that rises above the historical podium.”

[4] The Plaintiff commenced this action by Notice of Action dated May 11, 2012 to recover damages related to construction deficiencies discovered with respect to the conversion. The Plaintiff repaired the subject construction deficiencies and its consulting engineers issued a report dated November 6, 2015 containing findings and conclusions with respect to the causes of the construction deficiencies. The Plaintiff now moves to amend its claim, and to add parties in accordance with the findings and conclusions of its consulting engineers.

[5] There are a variety of similarities to the fact situation dealt with in the Supreme Court of Canada’s 2001 decision in Winnipeg Condominium Corporation No. 36 v. Bird Construction Co. (infra). Counsel for Blackwell argues that Bird ought to be distinguished in this case and that it is too late for the plaintiff to commence an action against his client. As a consequence it is necessary to review the background to the present case in some detail.

II. The Action to Date

[6] The Plaintiff commenced this action by Notice of Action dated May 11, 2012 to recover damages related to construction deficiencies.

[7] The Plaintiff retained CCI Group to prepare specifications for building restorations, which were completed in July and August, 2013.

[8] By agreement dated May 5, 2014, the Plaintiff retained Structural Contracting Ltd. to perform repairs to address water leakage that was occurring in the parking garage, building foundation, roof, and building façade.

[9] As of November, 2015, the Plaintiff had spent $1,236,345 plus HST on repairs.

[10] Brown & Beattie Building Science Engineering (“Brown & Beattie”) was retained to perform construction review and contract administration for the repairs. Brown & Beattie prepared a report dated November 6, 2015 commenting on scope and causes of the deficiencies (“The BB Report”).

[11] The plaintiff’s factum on this motion asserts:

6. The BB Report concludes that:

(a) a number of deficiencies are caused by poor design and poor workmanship;

(b) a number of areas of TSCC 2073 were not constructed in accordance with the Ontario Building Code;

(c) Some of the deficiencies should have been identified by construction review at the time of original construction; and

(d) If the deficiencies were left unrepaired, they would result in concrete deterioration and unsafe conditions posing a real and substantial danger to the future occupants of the building. [my emphasis]

[12] As a consequence the Plaintiff now moves to amend its claim to take into account “the new information”. In particular the Plaintiff sought leave to add six new defendants, being the waterproofing contractors, the company retained to perform site reviews, the geostructural engineers, the structural engineers, and the construction manager. The only remaining proposed defendant now sought to be added is Blackwell.

III. Proposed Defendant’s Position

[13] The proposed Defendant, Blackwell, is a firm of structural engineers incorporated in Ontario. Blackwell was retained to perform structural engineering services for the purposes of the Conversion Project. In particular, Blackwell was retained to design the structural components of the building/structure, including the structural design of the foundations within TSCC No. 2073 and conducting general reviews of the same (the "Blackwell Retainer").

[14] Blackwell issued structural design drawings, designated S-101 to S-502, which the Plaintiff provided to its own expert, Construction Control Inc. ("CCI"), for the purposes of CCI's investigations and performance audit during the first year after the Plaintiffs registration on May 12, 2010.

[15] Blackwell asserts that it officially completed its retainer for the Conversion Project on or about January 4, 2010. As admitted by the Plaintiff in the Agreed Statement of Facts, the Plaintiff provided CCI, inter alia, with the structural drawings designated S- 101 to S-502 that had been prepared by Blackwell for the purposes of CCI's investigation and performance audit.

[16] The proposed defendant asserts that on April 8, 2011, or shortly thereafter, the Plaintiff knew or ought to have known about serious construction and restoration defects and deficiencies associated with the condominium that resulted from incomplete and inadequate work, which included, but were not limited to, problems and deficiencies associated with the roof systems, exterior wall systems, structure/parking garage, and water, moisture and air penetration.

[17] The original Statement of Claim was filed on June 11, 2012, and identified construction deficiencies in areas including, with the roof systems, exterior wall systems, structure/parking garage, and water, moisture and air penetration.

[18] Blackwell was served with the Plaintiff’s Notice of Motion, proposing to add Blackwell as a Defendant, on December 21, 2015.

[19] Blackwell requests an Order dismissing the Plaintiff's motion to amend the Amended Amended Statement of Claim, to the extent that the amendments seek to add Blackwell as a new Defendant, as the claim is statute barred by virtue of the provisions of the Limitations Act, 2002, .S.O. 2002, C 24 Sched B.

IV. Original Statement of Claim

[20] Paragraph 19 of the original 2011 Statement of Claim continues ununamended in the proposed Amended Amended Amended Statement of Claim and (with my emphasis added) reads:

19. On or about April 8, 2011, Construction Control issued its Performance Audit report ("Audit Report") which concluded that the condominium has serious construction and restoration defects and deficiencies resulting from incomplete and inadequate work, the particulars of which continue to be discovered but which include, inter alia, problems with:

(a) roof system;

(b) exterior wall system;

(c) structure/parking garage;

(d) ceilings;

(e) walls;

(f) floors;

(g) doors;

(h) miscellaneous interior;

(i) site elements;

(j) mechanical and electrical equipment;

(k) portable water systems;

(1) fire suppression systems;

(m) fire alarm system;

(n) heating, ventilation and air-conditioning;

(o) power supply and distribution;

(p) lighting;

(q) emergency power;

(r) elevators;

(s) security;

(t) garbage disposal;

(u) amenities;

(v) roof anchors;

(w) windows and exterior doors;

(x) water, moisture and air penetration;

(y) installation;

(z) cracking in exterior wall, dry wall and ceilings;

(aa) balconies;

(bb) sound/noise attenuation; and

(cc) miscellaneous, other issues.

[21] Apparently this list of deficiencies as set out in the pleading has not been amended since the original Statement of Claim was issued in 2012.

[22] The plaintiff seeks as well “to add economic loss as a cause of action”. That proposed amendment leads to an analysis as to the present state of Canadian law with respect to such claims.

V. Winnipeg Condominium Corporation No. 36 v. Bird Construction Co.

[23] In 1995, the Supreme Court of Canada in a decision by a panel consisting of La Forest, L'Heureux-Dubé, Sopinka, Cory, McLachlin, Iacobucci and Major JJ, provided new guidance with respect to the ability of subsequent purchasers to recover for damages flowing from faulty construction in Winnipeg Condominium Corporation No. 36 v. Bird ConstructionCo., 1995 146 (SCC), [1995] 1 S.C.R. 85. (“Bird”)

[24] There the court dealt with the availability of a cause of action when construction defects were discovered by subsequent purchasers a number of years after a residential a high-rise building was constructed. The headnote summarizes the background leading to the Supreme Court’s decision to overturn the ruling of the Manitoba Court of Appeal dismissing the plaintiff’s action:

A land developer contracted with respondent to build an apartment building in accordance with plans and specifications prepared by the intervener (an architectural firm). Respondent subcontracted the masonry portion of the work. The building was converted into a condominium in October, 1978, when appellant became the registered subsequent owner of the land and building. In 1982, the appellant's directors became concerned about the masonry work on the exterior cladding of the building. They retained the architects (the intervener) and a firm of consulting engineers to inspect the building. The architects and engineers offered the opinion that the building was structurally sound. In 1989, a storey-high section of the cladding fell from the ninth storey level of the building. The appellant had further inspections undertaken which revealed structural defects in the masonry work. Following these inspections, the entire cladding was replaced at the appellant's expense.

[25] The issue on the appeal at the Supreme Court was whether a general contractor, responsible for the construction of a building, could be held tortiously liable for negligence to a subsequent purchaser of the building, who is not in contractual privity with the contractor, for the cost of repairing defects in the building arising out of negligence in its construction.

[26] The court below struck out the Condominium Corporation's claim as against Bird. Huband J.A., writing for a unanimous court, decided that the expenses incurred by the Condominium Corporation in repairing the building were pure economic loss and not recoverable against Bird in tort. In reaching this decision, he found the decision by the House of Lords in D & F Estates Ltd. v. Church Commissioners for England, [1988] 2 All E.R. 992, to be directly on point. In that case, the House of Lords ruled that, in the absence of a contractual rela-tionship, the cost of repairing a defective structure, where the defect is discovered before it causes personal injury or physical damage to other property, is not recoverable in negligence by a remote buyer of real property against the original contractor or builder. Applying this reasoning, Huband J.A. observed that, even if Bird's employees, rather than the subcontractor Kornovski & Keller, had affixed the exterior cladding, the Condominium Corporation would not have had a claim in negligence because the damages claimed for the cost of repairing the cladding would still have been purely economic in nature. In support of this conclusion, he quoted with approval the following passage from the reasons of Lord Bridge in D & F Estates, at p. 1006:

“ . . . liability can only arise if the defect remains hidden until the defective structure causes personal injury or damage to property other than the structure itself. If the defect is discovered before any damage is done, the loss sustained by the owner of the structure, who has to repair or demolish it to avoid a potential source of danger to third parties, would seem to be purely economic. Thus, if I acquire a property with a dangerously defective garden wall which is attributable to the bad workmanship of the original builder, it is difficult to see any basis in principle on which I can sustain an action in tort against the builder for the cost of either repairing or demolishing the wall. No physical damage has been caused. All that has happened is that the defect in the wall has been discovered in time to prevent damage occurring.”

[27] The headnote summarizing the Supreme Court’s decision in Bird states in part:

The Court of Appeal erred in deciding that the costs of repair claimed by appellant are not recoverable economic loss under the law of tort in Canada. The law has now progressed to the point where contractors (as well as subcontractors, architects and engineers) who take part in the design and construction of a building will owe a duty in tort to subsequent purchasers of the building if it can be shown that it was foreseeable that a failure to take reasonable care in constructing the building would create defects that pose a substantial danger to the health and safety of the occupants. Where negligence is established and such defects manifest themselves before any damage to persons or property occurs, they can be held liable for the reasonable cost of repairing the defects and putting the building back into a non-dangerous state. (my emphasis)

In coming to its conclusion that the losses claimed by the appellant were not recoverable in tort, the Court of Appeal followed the reasoning of the House of Lords in D & F Estates Ltd. v. Church Commissioners for England. That decision should no longer be seen as having strong persuasive authority in Canadian tort law. First, it is inconsistent with recent Canadian decisions recognizing the possibility of concurrent contractual and tortious duties. Second, it is inconsistent with the continued application in Canada of the principles with respect to the recoverability of economic loss in tort established in Anns v. Merton London Borough Council and adopted by this Court in City of Kamloops v. Nielsen.

The losses claimed by appellant satisfy the two-part test for recoverability of economic loss established in Anns and Kamloops. [Anns v. Merton London Borough Council [1978] A.C. 728; City of Kamloops v. Nielsen, 1984 21 (SCC), [1984] 2 S.C.R. 2];

First, it is reasonably foreseeable to contractors that, if they design or construct a building negligently and if that building contains latent defects as a result of that negligence, subsequent purchasers of the building may suffer personal injury or damage to other property when those defects manifest themselves. The reasonable likelihood that a defect in a building will cause injury to its inhabitants is also sufficient to ground a contractor's duty in tort to subsequent purchasers of the building for the cost of repairing the defect if that defect is discovered prior to any injury and if it poses a real and substantial danger to the inhabitants of the building. ….

Apart from the logical force of holding contractors liable for the cost of repair of dangerous defects, a strong underlying policy justification also exists for imposing liability in these cases. Maintaining a bar against recoverability for the cost of repair of dangerous defects provides no incentive for plaintiffs to mitigate potential losses and tends to encourage economically inefficient behaviour. Allowing recovery against contractors in tort for the cost of repair of dangerous defects thus serves an important preventative function by encouraging socially responsible behaviour.

The present case is distinguishable on a policy level from cases where the workmanship is merely shoddy or substandard but not dangerously defective. Tort law serves to encourage the repair of dangerous defects and thereby to protect the bodily integrity of inhabitants of buildings. By contrast, cases of shoddy or substandard workmanship bring into play the questions of quality of workmanship and fitness for purpose. These questions did not arise here. Accordingly, if respondent is found negligent at trial, appellant would be entitled to recover the reasonable cost of putting the building into a non-dangerous state but not the cost of any repairs that would serve merely to improve the quality, and not the safety, of the building. [my emphasis]

[28] Justice La Forest undertakes an in-depth analysis of the previously existing law, not only Canada, but other jurisdictions. In assessing where upon the existing spectrum this case fell, he specifically observed:

“12. …The present case, which involves the alleged negligent construction of a building, falls partially within the fourth category, although subject to an important caveat. The negligently supplied structure in this case was not merely shoddy; it was dangerous. In my view, this is important because the degree of danger to persons and other property created by the negligent construction of a building is a cornerstone of the policy analysis that must take place in determining whether the cost of repair of the building is recoverable in tort. As I will attempt to show, a distinction can be drawn on a policy level between "dangerous" defects in buildings and merely "shoddy" construction in buildings and that, at least with respect to dangerous defects, compelling policy reasons exist for the imposition upon contractors of tortious liability for the cost of repair of these defects.”

[29] The court considers whether was there a sufficiently close relationship between the parties so that, in the reasonable contemplation of Bird, carelessness on its part might cause damage to a subsequent purchaser of the building such as the condominium corporation:

“35 In my view, it is reasonably foreseeable to contractors that, if they design or construct a building negligently and if that building contains latent defects as a result of that negligence, subsequent purchasers of the building may suffer personal injury or damage to other property when those defects manifest themselves. A lack of contractual privity between the contractor and the inhabitants at the time the defect becomes manifest does not make the potential for injury any less foreseeable. Buildings are permanent structures that are commonly inhabited by many different persons over their useful life. By constructing the building negligently, contractors (or any other person responsible for the design and construction of a building) create a foreseeable danger that will threaten not only the original owner, but every inhabitant during the useful life of the building…. “

[30] Justice La Forest outlines the justification for permitting recovery in such situations:

“37 Apart from the logical force of holding contractors liable for the cost of repair of dangerous defects, there is also a strong underlying policy justification for imposing liability in these cases. Under the law as developed in D & F Estates and Murphy, the plaintiff who moves quickly and responsibly to fix a defect before it causes injury to persons or damage to property must do so at his or her own expense. By contrast, the plaintiff who, either intentionally or through neglect, allows a defect to develop into an accident may benefit at law from the costly and potentially tragic consequences. In my view, this legal doctrine is difficult to justify because it serves to encourage, rather than discourage, reckless and hazardous behaviour. Maintaining a bar against recoverability for the cost of repair of dangerous defects provides no incentive for plaintiffs to mitigate potential losses and tends to encourage economically inefficient behaviour…. “

[31] I find that there is a real distinction between the present case as set out in the materials filed and the situation in Bird. There the court specifically noted (at paragraph 41) with my emphasis added:

“41. Given the clear presence of a real and substantial danger in this case, I do not find it necessary to consider whether contractors should also in principle be held to owe a duty to subsequent purchasers for the cost of repairing non-dangerous defects in buildings. It was not raised by the parties. …..For my part, I would require argument more squarely focused on the issue before entertaining this possibility.”

[32] The reasons in the initial portion of Bird conclude with this finding:

43 I conclude that the law in Canada has now progressed to the point where it can be said that contractors (as well as subcontractors, architects and engineers) who take part in the design and construction of a building will owe a duty in tort to subsequent purchasers of the building if it can be shown that it was foreseeable that a failure to take reasonable care in constructing the building would create defects that pose a substantial danger to the health and safety of the occupants. Where negligence is established and such defects manifest themselves before any damage to persons or property occurs, they should, in my view, be liable for the reasonable cost of repairing the defects and putting the building back into a non-dangerous state.

[33] However the court then goes on to examine the question of whether there any considerations that ought to negate the scope of the duty; or thedetermination of the damages to which a breach of it may give rise. Once again the extent of a “real and substantial danger to the inhabitants” is considered:

49 Secondly, there is no risk of liability in an indeterminate amount because the amount of liability will always be limited by the reasonable cost of repairing the dangerous defect in the building and restoring that building to a non-dangerous state. Counsel for Bird advanced the argument that the cost of repairs claimed for averting a danger caused by a defect in construction could, in some cases, be disproportionate to the actual damage to persons or property that might be caused if that defect were not repaired. For example, he expressed concern that a given plaintiff could claim thousands of dollars in damage for a defect which, if left unrepaired, would cause only a few dollars damage to that plaintiff's other property. However, in my view, any danger of indeterminacy in damages is averted by the requirement that the defect for which the costs of repair are claimed must constitute a real and substantial danger to the inhabitants of the building, and the fact that the inhabitants of the building can only claim the reasonable cost of repairing the defect and mitigating the danger. The burden of proof will always fall on the plaintiff to demonstrate that there is a serious risk to safety, that the risk was caused by the contractor's negligence, and that the repairs are required to alleviate the risk.

VI. Proposed Addition to Claim

[34] Thus, at this stage, the Plaintiff seeks leave to add to its 2012 pleading economic loss as a cause of action. The proposed paragraphs in that regard, with my emphasis added, read:

“Dangerous Defects

48. All defendants owed a duty of care to all individuals who will occupy TSCC 2073 during the useful life of the buildings to ensure that the buildings are free from dangerous defects.

49. The defendants' negligence resulted in dangerous defects. Specifically, the defendants' negligence caused leaks into the parking garage, foundations, and other areas of TSCC 2073, including the roof, as particularized in the Building Assessment. The leaks would have caused deterioration of the reinforced concrete within TSCC 2073. Exposure of the reinforcing steel (structural elements) within the concrete to water and salt would result in rusting of the embedded reinforcing steel, delamination of the concrete. and other effects which would cause the concrete to deteriorate to an unsafe condition posing a real and substantial danger to future occupants of the building. The defects would have also led to mold.

50... The defendants knew or ought to have known that their negligence would give rise to dangerous defects within TSCC 2073 that would eventually pose a real and substantial danger to future occupants of TSCC 2073.

51. As a result of the defendants' negligence, the plaintiff suffered economic loss. The plaintiff was required to repair the leaks in order to eliminate the dangerous condition. The defendants are jointly and severally liable to the Plaintiff for economic loss. The work to repair the dangers defects commenced in 2014 and is anticipated to be completed by the end of 2015. The particulars of the loss will be provided prior to trial.

DAMAGES

52 As a result of the breach of contract, breach of warranty, negligence, misrepresentation and/or breach of statutory duty of the defendants as herein before set out, the deficiencies described hereinbefore were permitted to occur and were never remedied.

53._ As a result, the plaintiff has and will continue to suffer damages including, but not limited to, the cost of investigating the deficiencies and dangerous defects and the cost of their repair, the specifics of which will be provided prior to trial.”

VII. Proposed claims against Blackwell

[35] The plaintiff seeks to add these provisions relating to the alleged negligence of Blackwell:

Blackwell

43. Blackwell were retained to design and supervise construction of foundations within TSCC 2073 and to ensure that the foundations, both old and new, were watertight and that waterproofing functioned as designed. Blackwell had the opportunity and the duty to observe, report, prevent, and warn others of dangerous defects in the construction of TSCC 2073. Blackwell was negligent in its design, supervision of construction, and inspections.

44. Blackwell designed deficient waterproofing systems for TSCC 2073 and/or failed to review plans and designs for waterproofing systems in a competent manner so as to realise that the waterproofing systems would not function as intended and to warn or notify others that the building would not be watertight.

45. Blackwell negligently certified and provided sign offs to the defendants and other parties which stated that TSCC 2073 was properly built according to the code, the plans and specifications and other applicable standards and laws when this was not accurate. Blackwell's negligence caused or contributed to the construction deficiencies and leaks described in Brown & Beattie's report dated November 6, 2015 and any follow up reports.

[36] The question to now be addressed is where or not these allegations are out of time or does the recent report create a new date of discoverability.

VIII. Limitation Issues.

[37] In Bird the Supreme Court addressed whether it was possible to bring an action for pure economic loss. The court was not required to consider any limitation period issues. The present case, places those issues front and center.

[38] At what point does a claim for pure economic loss accrue? Is it when the alleged error was made? Or when the defect is discovered, or when it is discoverable that there is a “real and substantial” danger to the inhabitants? If the defects are repaired is there still a cause of action?

[39] What impact do the existing statutory provisions have?

[40] The caselaw in Bird was established prior to the Limitations Act of 2002 being enacted. I now turn to a consideration of the impact of the provisions of that statute.

IX. Limitations Act, 2002, .[S.O. 2002, C 24 Sched B](https://www.canlii.org/en/on/laws/stat/so-2002-c-24-sch-b/latest/so-2002-c-24-sch-b.html)

[41] Since January 1, 2004 the basic limitation provisions have provided:

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 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).

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.

[42] I am satisfied that all requite factors were known or knowable at least by the date the original Statement of Claim was issued in 2012.

X. Ultimate Limitation Periods

[43] The background to provisions dealing with the ultimate limitation concept is described in a practice note in Archibald, Ontario Superior Court Practice,. 2016 ed. which reads in part:

The purpose of the ultimate limitation period is to balance the concern for 'plaintiffs with undiscovered causes of action with the need to prevent the indefinite postponement of a limitation period and the associated costs relating to record-keeping and insurance resulting from continuous exposure to liability. From the legislative history of the 2002 Act, it can be deduced that the time chosen for the ultimate limitation period, 15 years, represented a compromise between the 30-year period proposed for most claims and the 10-year period proposed for others. [York Condominium Corp. No.-382 v. Jay-M Holdings Ltd., [2007] O.J, No. 24-0, 2007 ONCA 49, 84 O.R. (3d) 414 (Ont. C.A.), leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 154 (S.C.C.).]

[44] The resultant section reads in part:

Ultimate limitation periods

15. (1) Even if the limitation period established by any other section of this Act in respect of a claim has not expired, no proceeding shall be commenced in respect of the claim after the expiry of a limitation period established by this section.

General

(2) No proceeding shall be commenced in respect of any claim after the 15th anniversary of the day on which the act or omission on which the claim is based took place.

[45] It is to be noted that discoverability is generally irrelevant to this computation. Moreover the legislature specifically enumerated those types of claim where there is no limitation period at all. Section 16 addresses a number of situations, many relating to sexual assaults that are not restricted. On my reading of the Act none of the enumerated exceptions apply to cases having facts similar to Bird or the case at bar.

[46] For example Section 17 establishes another specific exemption:

Undiscovered environmental claims

17. There is no limitation period in respect of an environmental claim that has not been discovered.

No such exemption to the ultimate limitation period exists for undiscovered construction defects.

[47] In my view the failure to establish an exemption for situations such as Bird in the current legislation is significant. Without such an exemption, even if a pure economic loss claim was available in the present situation, I would still require that the action be brought within the basic two-year period.

[48] Put another way, I am not prepared to allow the amendment sought simply because it is for pure economic loss in a construction defect case. The existence of specific provincial legislation dealing with limitations, leads to the conclusion that the plaintiff is out of time, regardless of the nature of the claim being asserted.

[49] I therefore turn to a consideration of whether or not there is justification for an amendment to be permitted in the circumstances.

XI. Analysis of Claim

[50] The Supreme Court of Canada in Peixeiro v. Haberman, 1997 325 (SCC), [1997] 3 S.C.R. 549 (S.C.C.) at para. 18, confirmed the proposition that discovery of the cause of action occurs when the Plaintiff knows some damage has occurred and the plaintiff has identified the tortfeasor.

[51] Prior to the 2002 amendments, the Ontario Court of Appeal in Soper v. Southcott, 1998 5359 (ON CA), 1998 CarswellOnt 2906 (C.A.), at para. 21, made it clear that limitation periods are not enacted to be ignored. The Plaintiff is required to act with due diligence in acquiring facts in order to be fully apprised of the material facts upon which a negligence or malpractice claim can be based.

[52] Justice Perell in Tender Choice Foods Inc. v. Versacold Logistics Canada Inc., 2013 ONSC 80 (S.C.J.), at para 56 & 60, noted that a limitation period commences when the Plaintiff discovered the underlying material facts or, alternatively, when the Plaintiff ought to have discovered those facts by the exercise of reasonable diligence. In particular a Plaintiff is not required to possess a comprehensive understanding of a potential claim in order that the limitation period commence.

[53] As well in Oakville Hydro Electricity v. Tyco Electronics Canada Ltd., 2004 CarswellOnt 2086 (S.C. J), 71 0.R. (3d) 330 at paras. 10-13, Justice Spence held that discovery of a claim does not depend upon the Plaintiffs knowing that his or her claim is likely to succeed. The limitation period runs from when the prospective Plaintiff has or ought to have had knowledge of a potential claim, and the later discovery of facts change a borderline claim into a viable one does not postpone the discovery of the claim.

[54] In my view the Plaintiff must exercise due diligence and conduct his own investigation to uncover material facts.

[55] Justice Pepall in Kowal v. Shyiak 2012 ONCA 512, [2012] OJ 3420 (Ont.C.A.)specifically held:

18. 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 to have prima facie grounds to infer that the acts or omissions were caused by the party or parties identified.

[56] Certainty of a potential defendant's responsibility for an act or omission that caused or contributed to the loss is not a requirement. All that is required is that the Plaintiff has prima facie grounds to infer that the acts or omissions were caused by the identified parties. The establishment of prima facie grounds may or may not necessitate obtaining an expert report.

[57] The fact that the Plaintiffs understanding of the facts and theory of liability changes as the result of expert input received after the claim has been issued does not mean the claim was not discoverable until the expert opinion was obtained. (see Tremain v. Dr. William Muir, 2014 ONSC 18 (S.C.J.)),

XII. Leave to Amend Is Not Mandatory

[58] The Ontario Court of Appeal held in Frohlick v. Pinkerton Canada Limited, 2008 ONCA 3 (C.A.), paras. 15, 24, 28-29, that:

"Rule 26.01 does not contemplate the addition of unrelated statute-barred claims by way of amendment to an existing statement of claim. Conceptually, this should be treated no differently than the issuance of a new and separate statement of claim that advances a statute-barred claim."

[59] Rule 26.01 also does not contemplate the addition of claim against new Defendants more than two years after the limitation period commenced, in particular, where the newly proposed Defendants were known to the Plaintiff at the time the original action was commenced.

[60] More recently the Ontario Court of Appeal addressed a similar situation in Cassidy v. Belleville (City) Police Service, [2015] O.J. No. 6096; 2015 ONCA 794:128 O.R. (3d) 387.

[61] In that case the action involved an altercation between a pregnant lady and a police officer on August 18, 2009.

[62] On August 24, 2009, the plaintiff wrote to a lawyer asking whether she should pursue a civil action, but did not commence a claim at that time. On September 11, 2009, the plaintiff wrote a letter of complaint to the Belleville Police Service. She received a reply on June 23, 2011. On July 8, 2011, she requested a review of her complaint by the Ontario Civilian Police Service. Her complaint was upheld on November 29, 2012, and she commenced her action on October 10, 2013, more than four years following the incident.

[63] The Court of Appeal upheld the motions judge's decision that held the limitation period commenced on August 18, 2009, at the earliest or August 24, 2009, the date the appellant wrote to a lawyer, at the latest. At paragraph 13 of their decision the court stated:

The administrative processes the appellant invoked concerned the oversight of police conduct and maintenance of police standards. Although these processes provided additional information in support of the appellant's claim, discovery of her claim did not depend on them. Discovery of sufficient material facts to trigger commencement of the limitation period did not depend on precise knowledge of the applicable standard of care and whether Officer Groen's conduct fell below it. [my emphasis]

[64] I am satisfied in all the circumstances of this case that it is appropriate to refuse the plaintiffs motion to add the proposed defendant Blackwell Bowick Partnership Limited as the subject claims were discoverable more than two years before the motion seeking to amend was brought in December of 2015.

XIII. Disposition

[65] The plaintiff moved for a variety of relief involving different parties. I am granting the relief sought where the other parties either consented or were unopposed.

[66] Inasmuch as I am not allowing the addition of the Blackwell as a defendant, there is no remaining party to the lis who opposed the general amendments sought and I therefore grant leave to the plaintiff to issue an amended pleading, reflecting these reasons.

[67] I therefore find the claim is statute barred as being otherwise out of time having regard to what was described in the plaintiff’s original statement of claim issued some three years before the motion to add Blackwell was launched.

[68] The parties agreed that $5600 would be appropriate quantum to the successful party and I therefore direct plaintiff to pay, to counsel for Blackwell Bowick Partnership Limited that sum within 60 days.

R.140/DS __________________

Master D.E. Short