COURT FILE NO.: CV10-317SR
DATE: 20180410
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Alexandra Collins
Brian H. Renken, for the Plaintiff
Plaintiff
- and -
Van Dolder Enterprises Limited, Van Dolder’s Four Seasons Sunrooms, Van Dolder’s Home Team, Van Dolder’s Custom Exteriors, A Division of Cash & Carry Aluminium Products and Four Seasons Solar Products LLC
Mary Anne Cummings, for the Defendant, Van Dolder’s Home Team Inc.
Defendants
HEARD: April 9, 2018
REASONS FOR DECISION ON MOTION
Conlan J.
I. The Action
[1] This is a simplified procedure action brought under Rule 76 of the Rules of Civil Procedure (“Rules”).
[2] The Plaintiff, Alexandra Collins (“Collins”), has sued numerous Defendants. The proper entity, Van Dolder’s Home Team Inc. (“Van Dolder’s”), has not been named as a Defendant, however, counsel for Collins advises that there will be a request to amend the Statement of Claim if the action is allowed to continue.
[3] In short, Collins purchased a sunroom manufactured by a third party, Four Seasons Solar Products LLC (“Four Seasons”). The purchase price was $75,665.40. The unit was installed by Van Dolder’s at Collins’ home in Meaford, Ontario. Collins alleges that she has experienced consistent problems with the sunroom during the winter months – icing, condensation, moisture (which Collins has termed “flooding”), and inadequate heat. Due to the alleged poor quality product, Collins has claimed for rescission of the contract (paragraph 9 of the Statement of Claim). A “complete failure of consideration” is argued on behalf of Collins (paragraph 8 of the Statement of Claim). Collins wants her money back.
[4] Van Dolder’s has issued a Third Party Claim against Four Seasons. I am advised that, on consent, the said Third Party Claim will be dismissed without costs.
[5] This proceeding was called to trial in Owen Sound on April 9, 2018. On that date, a Motion was heard.
II. The Motion
[6] Van Dolder’s moves for summary judgment, “dismissing the action on the basis that it was brought outside the statutory time limit” (page 2 of the Motion Form).
[7] In other words, Van Dolder’s submits that the action was commenced outside the applicable limitation period.
III. The Law
Summary Judgment
[8] The Court shall grant summary judgment if it is satisfied that there is no genuine issue requiring a trial: Rule 20.04(2)(a).
[9] Van Dolder’s, as the moving party, has the burden of proof. The standard of proof is on a balance of probabilities.
[10] In determining whether there is a genuine issue requiring a trial, the Court shall consider the evidence adduced on the Motion and may weigh that evidence, evaluate credibility, and draw reasonable inferences: Rule 20.04(2.1).
[11] In addition, the Court may order a mini-trial, where oral evidence would be presented: Rule 20.04(2.2).
[12] Where the only genuine issue is one of law, the Court may decide the question and grant judgment accordingly: Rule 20.04(4).
[13] The following principles may be gleaned from a careful review of the decision of the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7.
[14] First, it is the principle of proportionality that ought to drive the Court’s decision on a request for summary judgment. There will be no genuine issue requiring a trial when the judge hearing the Motion is able to reach a fair and just determination on the merits.
[15] Second, what does that mean – a fair and just determination on the merits? It means (i) that the judge hearing the Motion is able to make the necessary findings of fact, (ii) is able to apply the law to the facts, and (iii) the process employed to do those things is a proportionate, more expeditious and less expensive means to achieve a just result (as compared to a trial).
[16] The judge must be able to have confidence in the conclusions reached on the Motion, otherwise, the case ought to proceed to trial.
[17] Third, the judge hearing the Motion should follow a two-stage procedure. Initially, consider only the evidence filed without regard to the expanded powers. Then, afterwards, if there appears to be a genuine issue requiring a trial, the judge may (but does not have to) weigh the evidence, evaluate credibility and draw reasonable inferences.
[18] Fourth, there is certainly a culture shift that was signalled by the decision of the Supreme Court of Canada referred to above. The Courts have been encouraged to, wherever possible, deal with matters expeditiously. Cases should proceed to trial only if they really have to. The summary judgment process can, where employed properly, increase access to affordable and timely justice. A trial should no longer be viewed as the default procedure.
The Limitation Period
[19] Due to the unique circumstances of this case, it is necessary to set out two potential limitation periods that may govern Collins’ Claim.
[20] First, it could be determined that the governing legislation is the Limitations Act, R.S.O. 1990, c.L.15, as amended (“1990 Limitations Act”). If so, under section 45(1)(g), the Claim must have been issued within six (6) years after the cause of action arose.
[21] Or, it could be determined that the governing legislation is the Limitations Act, 2002, S.O. 2002, c.24, Sched. B, as amended (“2002 Limitations Act”). If so, under section 4, the Claim must have been issued within two (2) years from the day that it was discovered.
[22] Section 5(1)(a) of the 2002 Limitations Act provides guidance as to when a claim is discovered or discoverable. The limitation period runs from the date that the claimant, or a reasonable person in the shoes of the claimant, knew, or ought to have known, that (i) an injury, loss or damage has occurred, (ii) that was caused by or contributed to by an act or omission, (iii) which act or omission was that of the potential defendant, and (iv) considering the nature of the injury, loss or damage, a legal proceeding would be an appropriate means to seek a remedy.
[23] With regard to that last item, “appropriate” means legally appropriate. It is meant to balance two competing interests. On the one hand, we do not want parties to be discouraged from trying to discuss and negotiate disputes. They should not rush to litigation at the drop of a hat. On the other hand, we do not want claimants unreasonably delaying the commencement of proceedings; that would inject into the law of limitations of actions an unacceptable element of uncertainty. Federation Insurance Co. of Canada v. Markel Insurance Co. of Canada, 2012 ONCA 218, 109 O.R. (3d) 652 (Ont. C.A.), at paragraph 34.
[24] For example, where a patient experiences adverse dental treatment, and the dentist takes the position that it is not his fault but offers to repair and remediate the problem, it would not be unreasonable for the patient to continue treatment with the dentist and not commence legal action until after the remedial treatment had failed and the dentist-patient relationship had ended; only then could the patient reasonably know that legal action would be an appropriate means to seek a remedy. Chelli-Greco v. Rizk, 2016 ONCA 489, 2016 CarswellOnt 9670, 268 A.C.W.S. (3d) 440 (Ont. C.A.), at paragraph 4, upholding the decision of Justice Hackland of the Ontario Superior Court of Justice reported at 2015 ONSC 6963, 2015 CarswellOnt 17431, 128 O.R. (3d) 136, 260 A.C.W.S. (3d) 624.
[25] As another example, where a patient experiences a negative result from breast reduction surgery, and the surgeon performs a series of further procedures in an effort to improve the result, it would not be unreasonable for the patient to continue that further treatment with the surgeon and not commence legal action until after the last failed surgical procedure; again, only then could the patient reasonably know that legal action would be an appropriate means to seek a remedy. Brown v. Baum, 2016 ONCA 325, 2016 CarswellOnt 6735, [2016] O.J. No. 2317, 265 A.C.W.S. (3d) 477, 348 O.A.C. 251, 397 D.L.R. (4th) 161, 84 C.P.C. (7th) 231 (Ont. C.A.), upholding the decision of Justice Mew of the Ontario Superior Court of Justice reported at 2015 ONSC 849, 2015 CarswellOnt 3138, [2015] O.J. No. 1150, 251 A.C.W.S. (3d) 695.
[26] Ironically, both of the above decisions involve a patient as the potential claimant and a medical professional as the potential defendant. That is not simply a coincidence, in my opinion. Patients are particularly vulnerable when dealing with medical professionals. Many of us would say that we know a little something about plumbing, or electrical work, or carpentry, as examples, but who among us would say that she knows anything about repairing a bridge on teeth or reducing the size of one’s breasts? Naturally, the medical professional-patient relationship is one of trust and dependence. It is highly personal and private. Thus, it makes common sense that a patient who experiences something negative will be open to having the same medical professional attempt to fix the problem. To sue that medical professional in the middle of the “fix” may be counter-productive. Hence, these types of factual matrixes lend themselves to the tolling of a limitation period by reference to clause (iv) in section 5(1)(a) of the 2002 Limitations Act.
[27] I am not suggesting that it would always be reasonable for a patient to delay the commencement of a legal proceeding against the treating medical professional. Each case will turn on its own facts.
[28] Nor am I suggesting that section 5(1)(a)(iv) of the 2002 Limitations Act cannot be relied upon to toll the limitation period in other contexts, including the construction/installation industry. Simply that Collins has not submitted to this Court any such jurisprudence, and simply that Van Dolder’s has filed examples of decisions where judges took a different view on facts that did not involve a medical professional-patient relationship, does not mean that a person in the shoes of Collins can never involve the same contractor that allegedly caused the problem in trying to fix it before suing. It is trite to say, but it depends on the facts of each case.
[29] What I am saying is that the context is undoubtedly much different when looking at a customer-contractor relationship and a patient-medical professional one. And that much different context will inform the analysis under section 5(1)(a)(iv) of the 2002 Limitations Act.
IV. Findings
[30] For the reasons that follow, the Motion is granted. The action is dismissed. The Third Party Claim is also dismissed, without costs.
[31] I have concluded that there is no genuine issue requiring a trial. On the basis of the evidence filed on the Motion, and without having to resort to any of the expanded powers under Rule 20.04(2.1) and (2.2), I am able to say with confidence that the action is simply out of time.
What is the Applicable Limitation Period?
[32] In my view, the 1990 Limitations Act applies.
[33] “I acknowledge that the first indication of a problem was in December 2001 when there was a cold night and substantial thick ice build-up and flooding had occurred in the room. This was shortly after the completion of the project by Van Dolder’s”. That is evidence from Collins herself, at paragraph 5 of her Affidavit filed on the Motion.
[34] Collins admits that the installation of the sunroom by Van Dolder’s was finished by December 1, 2001, at the latest (paragraph 2 of her Factum filed on the Motion). The Statement of Claim was issued nine (9) years later, on December 23, 2010.
[35] Collins admits in her Affidavit, at paragraph 11, that her “initial complaint” to Van Dolder’s came swiftly, in December 2001.
[36] In her letter addressed to Four Seasons and dated February 1, 2007 (Exhibit “D” to the Affidavit of Kris Van Dolder filed on the Motion), Collins expressly states that she experienced problems with the sunroom the very first winter that she bought it, 2001/2002. And those problems were not minor ones but involved “condensation, severe mildew and ice buildup”. Further, the said letter illustrates that Collins, during that first winter, had a target in mind as to who was, at least potentially, at fault – Van Dolder’s. Why else would she have contacted Van Dolder’s? She did not, at that time, make any claim or demand against or even contact Four Seasons.
[37] “Cause of action” means a group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court against another person; a legal theory of a lawsuit; or very loosely, a lawsuit. Black’s Law Dictionary, Ninth Edition, Editor in Chief Bryan A. Garner, at page 251.
[38] Clearly, Collins, on her own evidence, had discovered the operative facts giving rise to a basis for suing Van Dolder’s, at a minimum for alleged negligent installation of the sunroom, by the end of the winter of 2001/2002.
[39] The date of discovery was well before January 1, 2004, when the 2002 Limitations Act took force. Hence, the 1990 Limitations Act applies. Under section 45(1)(g), the proceeding must have been commenced within six (6) years after the cause of action arose. At its best for Collins, that means within six years after the end of the winter of 2001/2002. The Claim must have been issued by the end of the winter of 2007/2008, but it was not issued until late December 2010, much after the expiration of the applicable limitation period. Thus, it is out of time. It must therefore be dismissed.
[40] Remember, section 5(1)(a)(iv) of the 2002 Limitations Act does not have a companion or similar provision in the 1990 Limitations Act. Thus, Collins’ heavy reliance on that section of the current legislation is of no assistance to her.
[41] Remember, further, that the 2002 Limitations Act specifically addresses our situation in terms of the transitional provisions set out in section 24 therein. Under section 24(5), where the former limitation period did not expire before January 1, 2004 (as here), and if a limitation period under the 2002 Limitations Act would apply were the claim based on an act or omission that took place on or after that date (yes – 2 years), then, under rule 2, if the claim was discovered before January 1, 2004 (which it was), the old limitation period (6 years) applies.
[42] I repeat, the action is out of time.
What if this Court is Wrong about the Applicable Limitation Period?
[43] I could be wrong, thus, for the benefit of any reviewing Court, I will consider whether the action is statute-barred under the 2002 Limitations Act.
[44] I find that it is. There is no dispute that, but for clause (iv), all other ingredients of section 5(1)(a) of the 2002 Limitations Act were satisfied more than two (2) years prior to the date that the Statement of Claim was issued. Consequently, the only debate is whether clause (iv) was satisfied more than two years before December 23, 2010.
[45] Collins’ letter to Four Seasons dated February 1, 2007, referred to above, torpedoes any chance of her action surviving. By then, she had been dealing with Van Dolder’s for more than five (5) years, to no avail. Numerous attempts had been made to fix the problems, all unsuccessful. The situation was, by then, dire: condensation, severe mildew, ice buildup, dripping, flooding, seams bursting, discoloration of the wood, a corner window that could not even be fully shut, a constant draft, ballooning heating bills, a complete inability to use the room during the winter (all things stated expressly by Collins in the said correspondence), and so on. Collins states that “no permanent solution has been offered to me”. She goes on to say that she has already contacted outside third party experts, an engineer and a contractor. She demands a “permanent and speedy solution”.
[46] If that was not the time that Collins knew or ought to have known that legal action against Van Dolder’s (and maybe Four Seasons) was appropriate, then that time would never have come.
[47] Potential defendants are not expected to suspend themselves in limbo indefinitely, while aggrieved claimants ponder and pursue every possible resolution to their concerns short of legal action. Sometimes, a complainant simply has to give-up or institute a legal proceeding. That is where Collins was, or where she ought to have been, in February 2007.
[48] The clock started running then. It expired two years later, in early February 2009. The Claim was not issued for another almost two (2) years, in late December 2010. It is out of time. It must therefore be dismissed.
V. Decision
[49] The Motion for summary judgment is granted, and the action is dismissed.
[50] Van Dolder’s, the successful party, is presumed to be entitled to some costs. If those cannot be resolved between the parties, I will accept written submissions, each one limited to two pages, excluding attachments. Van Dolder’s shall file within thirty days of the release of these Reasons. Collins shall file within fifteen days thereafter. Without leave of the Court, there shall be no reply submissions filed.
[51] I would be remiss if I did not acknowledge the work of counsel on this case, Ms. Cummings and Mr. Renken. It was a pleasure hearing from them and reading their materials filed. Their submissions would serve to other lawyers as examples of excellent advocacy. Mr. Renken, who it should be noted was not acting for Collins until after February 2009, in his usual professional and candid manner, acknowledged at Court on April 9th that this was a difficult Motion to defend against. It was.
[52] Given this decision, there is no need for counsel or the parties to re-attend at Court. There will be no trial.
Conlan J.
Released: April 10, 2018
COURT FILE NO.: CV10-317SR
DATE: 20180410
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Alexandra Collins
Plaintiff
- and -
Van Dolder Enterprises Limited, Van Dolder’s Four Seasons Sunrooms, Van Dolder’s Home Team, Van Dolder’s Custom Exteriors, A Division of Cash & Carry Aluminium Products and Four Seasons Solar Products LLC
Defendants
REASONS FOR DECISION ON MOTION
Conlan J.
Released: April 10, 2018