COURT FILE NO.: CV-17-74933
DATE: 20210408
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ST. LAWRENCE PARKS COMMISSION, Plaintiff
-and-
JOHN GORDON CONSTRUCTION INC., TIMOTHY MACDOUGALL, MACDOUGALL HOMES AND CONTRACTING LTD., LES INDUSTRIES HARNOIS INC., and ABC MEGADOME COMPANY, Defendants
BEFORE: Mr. Justice Pierre E. Roger
COUNSEL: Alan S. Cofman, for the Plaintiff
Tara Lemke, for the Defendant, John Gordon Construction Inc.
Matthew Malcolm, for the Defendant, Timothy MacDougall and MacDougall Homes and Contracting Ltd.
Noemie Begin, for the Defendant, Les Industries Harnois Inc.
HEARD: March 24, 2021
ENDORSEMENT on motion for summary judgment
Factual Overview
[1] The defendants bring a motion for summary judgment to dismiss the plaintiff’s action. They argue that there is no genuine issue requiring a trial and that the plaintiff’s action was brought outside of the two-year limitation period.
[2] The plaintiff argues that this is not an appropriate case for a motion for summary judgment, that there are triable issues requiring a trial, and that this action was brought in time.
[3] The plaintiff is an agency of the Government of Ontario. It is the owner of the Crysler Park Marina located in Morrisburg, Ontario.
[4] The plaintiff’s marina has five prefabricated buildings. The first four buildings are 80 feet wide by 100 feet long. One of those was provided to the plaintiff in 2013 by the same parties. The subject building, built in 2015, is larger at 80 feet wide by 500 feet long.
[5] On June 3, 2015, the plaintiff issued a request for bids for the supply and installation of a storage building at the marina. The deliverable was to supply and install a peak roofed fabric/membrane structure for the primary purpose of providing additional boat storage.
[6] The defendants delivered a building in accordance with the plaintiff’s specifications. Nonetheless, the building’s ventilation was inadequate, which caused mold and damages to the plaintiff. At issue is whether the defendants are responsible for the poor ventilation, or whether they could simply follow the specifications provided by the plaintiff without attracting liability?
[7] The defendants are the general contractor, the subcontractor/distributor, and the manufacturer of the large Megadome that the defendants installed at the plaintiff’s marina.
[8] In 2015, the plaintiff put out a tender for the fifth building, which would be similar to the others, but longer. The tender was for a prefabricated building that would be 80 by 500 feet. The tender was won by the defendant, John Gordon Construction, and the same parties as in 2013 provided this Megadome to the plaintiff.
[9] The Megadome was completed in October 2015, and its inspection by the parties noted no deficiency. However, soon after the start of its operation, in November 2015, the plaintiff noticed an unusual level of moisture. By November 17, 2015, the plaintiff contacted the defendant MacDougall for solutions and opted for the installation of large commercial fans, as per the recommendations it received. The plaintiff’s evidence is that it expected that these fans would remove the excess humidity. The plaintiff says that by mid-December it noticed some mold on the boats and recreational vehicles that had been stored in the Megadome. The fans could only be installed in February 2016 by the defendant MacDougall. Unfortunately, the fans did not reduce the high level of moisture. Instead, the plaintiff’s expert evidence is that they increased the spread and amount of mold. The plaintiff’s evidence is that the new authorized dealer of Megadome later recommended proper ventilation as the solution, and that after this was installed by a third party in September 2016, the plaintiff experienced no additional difficulty with the Megadome.
[10] The plaintiff’s evidence is that Tim MacDougall was generally on site during the construction of the Megadome. He was their contact person for questions, comments or concerns.
[11] The plaintiff says that even if the request for bids (RFB) provided for ventilation, they were relying on the expertise of the bidders to alert them to any potential problems with the specifications. They say that this is why the plaintiff included clauses 5.2.5 and 5.4.3 to the RFB. Their understanding was that the figures in the RFB were the minimum requirements for the Megadome, and that if the bidders thought that any specifications would be insufficient, they could have asked for clarification – if there was a problem, someone would tell them. The plaintiff denies that any concerns over airflow or ventilation were ever communicated to them. The plaintiff expected some humidity because their marina sits on a wet and swampy site. The plaintiff’s evidence is that they expected the recommended fans to remove the excess humidity. During their cross-examination, the plaintiff’s representative admitted that they could have retained professionals to assist them with the ventilation specifications, but he confirmed that they did not. The plaintiff also admitted that they understood that general contractors are not engineers. The plaintiff, however, knew that these defendants had built their previous Megadome in 2013, but did not know if they had ventilation expertise. Nonetheless, the plaintiff expected bidders to have expertise on all aspects of the contract. They expected bidders to tell them if they had a concern about any aspect of the project. The plaintiff explained that it looked at the building as a whole and expected all aspects of the building to be functional. Their specifications were minimum requirements, and the building had to be functional.
[12] The plaintiff’s statement of claim was issued on December 18, 2017. It claims significant damages related essentially to the cost of decontaminating the building and its content (boats and recreational vehicles) as well as amounts paid to settle claims by dissatisfied customers. The plaintiff pleads that the defendants knew that the plaintiff was relying on their skills and expertise regarding the design and installation of the Megadome and that they failed to ensure that it was properly designed with respect to ventilation and air flow. They plead negligence and rely on the Sale of Goods Act, R.S.O. 1990, c. S.1.
[13] All three defendants deny liability, alleging that the Megadome is not defective because it was built as per the plaintiff’s specifications. They argue that they have no duty of care, that the Sale of Goods Act is not applicable, and that the action is out of time. All three brought a crossclaim for contribution and indemnity against the other defendants. The defendant MacDougall delivered a jury notice.
[14] Affidavits of documents have been exchanged and examinations for discoveries conducted. The parties have filed conflicting affidavits and have been cross-examined. At its examination for discovery, the plaintiff did not identify any specific flaw with the Megadome.
[15] The plaintiff retained a consulting engineering firm who provided an opinion on November 9, 2020:
Based on our review of the supplied documentation and information, we have concluded the following:
The subject building’s passive vents were ineffective in adequately ventilating the building.
The formation of condensation and subsequent mold contamination resulted from improper air movement and ventilation within the subject building.
High relative humidity, condensation, and inadequate ventilation produced an indoor environment where mold growth could occur and prosper.
The exhaust fans recommended by Harnois were ineffective in resolving the high humidity problem, likely increased the quantity of airborne fungal spores, and may have increased the spread and extent of mold contamination within the building.
The installation and operation of an active ventilation system (after remediation of the mold contamination) was required to produce adequate air flow throughout the building and reduce the indoor relative humidity, therefore preventing the production of condensation and mold growth.
[16] The defendants have not served any expert report for the purpose of this motion.
[17] The arguments raised by the three defendants are quite similar. They argue that the Megadome was built exactly as per the plaintiff’s specifications, and therefore, they are not liable for the poor ventilation because the plaintiff’s request for bids specifically provided for the ventilation that was delivered to the plaintiff – that they had no duty of care to verify the specifications provided by the plaintiff. With regard to the limitation period argument, they argue that the claim was discovered before December 18, 2015, and therefore that the action was started outside of the required two years.
[18] The request for bids includes the following:
1.2 Initial Procurement Details
Subject of procurement: The Supply and Installation of a peak roofed fabric/membrane storage building (“the Building)
This section of the RFB describes what is being procured.
The contents of this Part will be in the final Contract if you are successful and you will be expected to deliver and/or perform all requirements set out in this Part for the price you propose in Appendix C.5 - Pricing Form.
3.1 Objectives
To provide additional boat storage by adding a fifth membrane structure at 13480 County Road
2, Morrisburg, Ontario, KOC 1X0 (the “Crysler Park Marina”).
3.2 Background
3.2.1 Background and History:
The project entails the supply and installation of one (1) peak roofed fabric/membrane structure at Crysler Park Marina. The SLPC anticipates using this structure primarily for storage purposes.
3.3 Deliverables
The deliverables are:
(a) (i) the engineering and the design of the Building; and
(ii) the supply of the material, the equipment (where required) and the labour, for the construction of the Building; and
(b) the construction of the Building at the Crysler Park Marina, (collectively, the “Deliverables”).
In performing the Deliverables, the successful Bidder must:
(a) meet the following requirements for the Civil work:
Building site:
(i) remove trees and brush in an area of 100 feet x 520 feet;
(ii) excavate area 100 feet x 520 feet to a depth of 24 inches;
(iii) install -18 inches of 4inch minus and 6 inches granular “A”;
(iv) compact to 98% standard proctor density.
Driveway:
(i) excavate area 50 feet x 50 feet to a depth of 18 inches;
(ii) install 18 inches of 4 inch minus and 6 inches of granular “A”;
(iii) compact to 98% standard proctor density.
(b) meet the following requirements in the design of the Building:
(i) the outside dimensions of the fabric covered peaked roof of the Building must be
4,000 sq. ft; clear span; preferably 100' X 400' but would accept 80' X 500';
(ii) galvanized or HD steel structure with unobstructed clear span with a minimum of 30 feet center inside clearance at peak;
(iii) supply and install a concrete block foundation based on manufacturer requirements
and Building Code requirements;
(iv) minimum height of each side wall must be 12 feet;
(v) supply a white membrane. Seal all edges of the fabric to prevent entry from animals
and insects;
(vi) frame all door openings with steel members with two coats of glossy white paint on
a primer base;
(vii) comply with any and all building, fire and related codes;
(viii) supply engineered drawings for all aspects of the projects;
(ix) do all site preparations involving digging, grubbing, excavation, packing, levelling
dump site will be located within 1000 ft of the work site;
(x) final grade will be determined with SLPC staff prior to start of work;
(xi) Contractor is to provide temporary power as required;
(xii) Contractors will dispose of all waste and leave a clean site each day and at the
completion of the project; and
(xiii) Site is to be organized to allow for traffic flow through the area;
(c) meet the following requirements in the materials used in the construction of the building:
(i) all materials and components must be CSA approved for use in Canada. Proof of
certification must be provided, if requested, by the SLPC;
(d) Vents
• Provide and install 2 passive 3’ by 5’ passive vents in each end wall with an open area of fifteen square feet; and
• Vent must be fitted with bird screen
5.2.2 Conditional Bids May be Disqualified
A Bidder who submits conditions, options, variations or contingent statements to the terms set
out in the RFB including the Form of Offer and Form of Agreement, either as part of its Bid or after receiving notice of selection, may be disqualified. The SLPC acknowledges the need to add transaction-specific particulars to the Form of Agreement but the SLPC will not otherwise make material changes to the Form of Agreement.
5.2.5 SLPC’s Information in RFB Only an Estimate
The SLPC and its advisors make no representation, warranty or guarantee as to the accuracy of the information contained in this RFB or issued by way of addenda. Any quantities shown or data contained in this RFB or provided by way of addenda are estimates only and are for the sole purpose of indicating to Bidders the general size of the work.
It is the Bidder’s responsibility to avail itself of all information necessary to prepare a Bid in response to this RFB.
5.2.6 Bidders Shall Bear Their Own Costs
The Bidder shall bear all costs associated with or incurred in the preparation and presentation of its Bid including but not limited to, if applicable, costs incurred for interviews or demonstrations.
5.4.3 Bidders to Review RFB
Bidders shall promptly examine all of the documents comprising this RFB and:
(a) shall report any errors, omissions or ambiguities; and
(b) may direct questions or seek additional information in writing by e-mail on or before the Bidder’s deadline for questions to the Contact set out at Part 1 of this RFB. All questions submitted by Bidders by email to the Contact shall be deemed to be received once the e-mail has entered into the Contact's email inbox. No such communications are to be directed to anyone other than the Contact. The SLPC is under no obligation to provide additional information but may do so at its sole discretion.
It is the responsibility of the Bidder to seek clarification from the Contact on any matter it
considers to be unclear. The SLPC shall not be responsible for any misunderstanding on the
part of the Bidder concerning this RFB or its process.
Issues
[19] The issues argued on this motion are whether the plaintiff’s action should be dismissed on the basis that there is no genuine issue requiring a trial and/or on the basis that the action was brought outside of the applicable two-year limitation period.
Applicable Law and Analysis
[20] I have concluded that the defendants have not met their initial evidentiary burden of demonstrating that there is no genuine issue requiring a trial with respect to their defence, that they have not demonstrated that the action was started out of time, and therefore that this motion for summary judgment should be dismissed. Here are my reasons.
[21] A defendant may, after delivering a statement of defence, move with supporting affidavit or other evidence for summary judgment seeking to have all or part of the statement of claim dismissed: r. 20.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg.194 (“the Rules”).
[22] Rule 20.04 provides that the court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.
[23] At a summary judgment motion, the moving party defendant initially bears the evidentiary burden of demonstrating that there is no genuine issue requiring a trial with respect to its defence; it must put its best foot forward by adducing evidence on the merits: Aga v. Ethiopian Orthodox Tewahedo Church of Canada, 2020 ONCA 10, 442 D.L.R. (4th) 257 at para. 61 citing Sanzone at paras. 30-32, leave to appeal refused, [2016] S.C.C.A. No. 443. It is only after the defendant has met their burden that the onus shifts to the responding party, the plaintiff, to show that the claim has a real chance of success and that there are genuine issues requiring a trial: Rescon Financial Corporation v. New Era Development (2011) Inc., 2018 ONCA 530, at para. 21; Mayers v. Khan, 2017 ONCA 524, at para. 4. In Sanzone v. Schechter, 2016 ONCA 566, 402 D.L.R. (4th) 135, at paras. 24 and 30, Justice Brown indicates:
Rule 20.01(3) requires a defendant to “move with supporting affidavit material or other evidence” on a summary judgment motion. The respondent dentists, as the moving parties, bore the burden of persuading the court, through evidence, that no genuine issue requiring a trial existed: Dawson v. Rexcraft Storage & Warehouse Inc. (1998), 1998 CanLII 4831 (ON CA), 111 O.A.C. 201 (Ont. C.A.), at para. 16; Connerty v. Coles, 2012 ONSC 5218, [2012] O.J. No. 4313 (Ont. S.C.J.), at para. 9. They were not entitled to rely merely on the allegations in their statement of defence; the respondents were required to put their best evidentiary foot forward.
… First, the evidentiary burden on a moving party defendant on a motion for summary judgment is that set out in rule 20.01(3) — “a defendant may . . . move with supporting affidavit material or other evidence.” As explained in Connerty, at para. 9, only after the moving party defendant has discharged its evidentiary burden of proving there is no genuine issue requiring a trial for its resolution does the burden shift to the responding party to prove that its claim has a real chance of success.
[24] The above test is stated at para. 14 of Greaney v. Nitech Polysystems Inc., 2019 ONSC 7500, cited by the defendant Harnois. In Greaney, the court concluded that the moving party had not demonstrated that there was no genuine issue requiring a trial and dismissed the motion because the court could not ascertain the role of the defendant. The situation is quite similar in this case regarding the evidence about the plaintiff’s reliance.
[25] In Hryniak v Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, Karakatsanis J., writing for the Court, outlined a two-step procedure for deciding a summary judgment motion: see also Royal Bank of Canada v. 1643937 Ontario Inc., 2021 ONCA 98 at para. 24.
[26] The motion judge must first determine if there is a genuine issue requiring trial based only on the evidence placed before them, and without using the fact-finding powers provided at rule 20.04(2.1) and (2.2). There is no genuine issue requiring a trial where the summary judgment process provides the judge with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure: Hryniak at para. 66.
[27] If there appears to be a genuine issue requiring a trial, the motions judge should then determine if the need for a trial can be avoided by using the fact finding powers under r. 20.04(2.1), which allows the judge to weigh evidence, evaluate the credibility of a deponent and draw inferences from the evidence and (2.2), which allows the judge to order that oral evidence be presented. Where it would not be against the interests of justice to do so – where it will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole – the judge may exercise his or her discretion to use those powers: Hryniak at para. 66; Royal Bank of Canada at para. 24.
[28] The defendants’ main argument is that not one of them owed a relevant duty of care to the plaintiff because the plaintiff outlined the specifications of the proposed building in the request for bids, including those of the vents. In support of this argument, the defendants rely upon the decision of the Supreme Court in Edgeworth Construction Ltd. v. N.D. Lea & Associates Ltd., 1993 CanLII 67 (SCC), [1993] 3 S.C.R. 206.
[29] However, Edgeworth is distinguishable from the circumstances of this case. Edgeworth involved the appeal of a motion to determine if engineers owed a duty of care to the contractor, who had been building a road for the province. The contractor had successfully bid on a road construction contract and argued that it had suffered damages as a result of its reliance on the engineers’ erroneous specifications. Edgeworth did not involve the analogous situation of the province seeking damages on the basis that the road was defective and the construction company arguing that it owed no duty of care for the defective road because they followed the specifications provided by the province. Rather, the pronouncements of the Court in Edgeworth were made in the context of determining whether the contract subsumed the duty of care and whether policy considerations negated the imposition of a duty of care in the circumstance of that case.
[30] In Brunswick Construction Ltée v. Nowlan, 1974 CanLII 181 (SCC), [1975] 2 S.C.R. 523, the Supreme Court dealt with the defective construction of a house. The owner had retained an architect and the contractor relied on the plans of the architect when constructing the home. As it turns out, the architect’s plans and the quality of the contractor’s work were both defective. The plans did not provide for adequate ventilation, and the roof was improperly constructed. The majority of the Supreme Court stated:
In my opinion a contractor of this experience should have recognized the defects in the plans which were so obvious to the architect, Arnoud, subsequently employed by the respondents, and, knowing of the reliance which was being placed upon it, I think the appellant was under a duty to warn the respondents of the danger inherent in executing the architect's plans, having particular regard to the absence therein of any adequate provision for ventilation. Like Mr. Justice Bugold, I take the following excerpt from Hudson's Building and Engineering Contracts, 10th ed. at p. 291, which was adopted by this Court in Steel Company of Canada Limited v. Willand Management Limited, 1966 CanLII 13 (SCC), [1966] S.C.R. 746. at pp. 753 and 754, as having direct application to this case:
So a contractor will sometimes expressly undertake to carry out work which will perform a certain duty or function, in conformity with plans and specifications, and it turns out that the works constructed in accordance with the plans and specifications will not perform that duty or function. It would appear that generally the express obligation to construct a work capable of carrying out the duty in question overrides the obligation to comply with the plans and specifications, and the contractor will be liable for the failure of the work notwithstanding that it is carried out in accordance with the plans and specifications. Nor will he be entitled to extra payment for amending the work so that it will perform the stipulated duty.
[31] That this analysis is fact specific is outlined by the Ontario Court of Appeal in Halton Region Conservation Authority v. Toronto Underground Contractors Ltd., 1985 CarswellOnt 834. The Court of Appeal said at para. 4:
Nothing in the contract imposes any responsibility on Toronto Underground to determine the feasibility or adequacy of the system specified by the appellant’s engineers, nor, in our view, can any such responsibility be implied as a term of this particular contract. As the cases make clear, there are situations where a responsibility for design or method can be implied on the part of the person carrying out the work, but as the learned author of Hudson, supra, points out at p. 282,“every case will depend on its special facts.” On the facts as [sic] found by the trial Judge in this case the responsibility for the method of tunnelling is not the contractor’s and it cannot be held liable for complying with instructions it was contractually bound to follow or for delays in implementing alternative procedures.
[32] Following up on the above, in Sky Solar (Canada) Ltd. v. Marnoch Electrical Services Inc., 2016 ONSC 1295, the court upheld an arbitrator’s decision which mentioned Nowlan, and stated:
This case is distinguishable from the Supreme Court of Canada decisions in Steel Co. of Canada v. Willand Management, 1966 CanLII 13 (SCC), [1966] S.C.R. 746 or Nowlan v. Brunswick Construction Ltd., 1974 CanLII 181 (SCC), [1975] 2 S.C.R. 523. In both of those cases, the owner placed its reliance on the contractor with regard to the work undertaken. No such reliance was established in this case. Conversely, Ruffolo [Marnoch’s Vice President of Engineering] straightforwardly confirmed that engineering decisions, (including the choice of transformers) were his prerogative alone: at para. 22.
[33] Canada (Attorney General) v. Laminated Structures & Holdings Ltd., 1962 CanLII 97 (SCC), [1962] S.C.R. 160, bears some similarity to the circumstances of this case, although some of the facts relating to the negotiations between the parties are different. In that case, the contractor had provided trusses to be used in a storage facility. Those trusses were insufficient and collapsed. The issue was whether the owner was entitled to rely on the skill and judgment of the contractor from whom it ordered the laminated wood trusses and therefore whether the contractor was in breach of an implied condition that these materials would be reasonably fit for the purpose for which they were required. The contractor argued that in the circumstances there existed no such duty or condition because it was ordered by the owner to obtain and incorporate in the structure the very trusses which proved to be defective. In considering the case, the Supreme Court, at p. 165, commended the following statement of the trial judge: “There is ample authority for the proposition that the liability of a contractor for the supplying of material and the erection of a structure is no less than that of a vendor under the Sale of Goods Act.” The Court then went on to consider the Nova Scotia Sale of Goods Act, which, like the Ontario Sale of Goods Act, s. 15 1. (and in nearly identical wording), creates an implied undertaking as to fitness. The Supreme Court agreed with the trial and appeal decisions, that there was reliance and a corresponding condition as to fitness, and stated:
The unanimous opinion of all the judges in both courts below is that the respondent relied on the skill and judgment of the appellant and that there were no circumstances such as to exclude the condition as to fitness which is implied by law. There was abundant evidence to support the finding that there was a breach of such condition. This, therefore, seems to me, to be a case to which the following language employed by Martland J. in the Preload Co. of Canada Ltd. case, supra, can well be adapted. He there said at p. 822:
The question of the buyer’s reliance on the seller’s skill or judgment, ... is, as stated by Lord Sumner in the Medway case, a question of fact. That question of fact has been decided by the Courts below in favour of the City. In my view there was ample evidence on which to base such a finding and I think that a preponderance of evidence justifies the conclusion which has been reached.
I do not base my conclusion solely on any implication of reliance which may arise from the contract itself, but, like Mr. Justice MacDonald in the Court below, I prefer to base it on a wider ground, and I am content to adopt the language employed by him in the penultimate paragraph of his reasons for judgment where he says:
I should prefer, however, to base my conclusion on the wider ground that having regard to the circumstances affecting the parties and the course of the negotiations leading to the contract, there is a clear preponderance of evidence to support the finding of the trial judge that Eastern disclosed to Laminated the purpose for which the wooden frame and component parts were required (namely, to support the roof of the garage and maintenance shed at Shearwater under such ordinary conditions as those which obtained when it collapsed); that it effectively disclosed to Laminated such reliance upon it; and that the cause of the collapse was within the area of that reliance. It is equally clear to me that neither the requirement of conformity to the plans and specifications nor the presence of Timber Structures “in the picture” as the probable, and, as it turned out, actual maker of the materials, operated to exclude such reliance or furnish proof that the reliance was placed on the latter Company and not upon Laminated.
[34] Section 15 of the Ontario Sale of Goods Act reads, in part:
- Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required so as to show that the buyer relies on the seller’s skill or judgment, and the goods are of a description that it is in the course of the seller’s business to supply (whether the seller is the manufacturer or not), there is an implied condition that the goods will be reasonably fit for such purpose, but in the case of a contract for the sale of a specified article under its patent or other trade name there is no implied condition as to its fitness for any particular purpose
[35] In the text Heintzman, West and Goldsmith on Canadian Building Contracts, 5th ed. (Toronto: Thomson Reuters, 2020), the authors offer the following explanation of warranty for fitness: “The warranty of fitness for use will only be implied if the owner relied upon the contractor's skill and judgment. There need not be exclusive reliance on the contractor’s skill and judgment, and it is sufficient if the reliance constitutes a substantial and effective inducement. But the warranty of fitness for use will not be implied if the owner did not so rely [internal citations omitted]”: 4.d.iii.c.
[36] The cases the defendants relied upon to rebut the allegations of negligence are distinguishable because, in the circumstances of those cases, it “made good practical sense” to bar a finding of a duty of care. Here, it does not so obviously make good practical sense because: the request for bids specifically provides that the design and engineering was a deliverable; the plaintiff’s evidence is that they relied on the defendants; two of the defendants were general contractors and the other was the manufacturer; and the defendants’ evidence does not sufficiently demonstrate that the defendants did not have the relevant experience and should not have recognized the defects in the plaintiff’s specs with regards to ventilation.
[37] On a motion for summary judgment, the moving party defendant initially bears the evidentiary burden of demonstrating that there is no genuine issue requiring a trial. In so doing, they must put their best foot forward by adducing evidence on the merits. It is only after the moving party defendant has met that evidentiary threshold that the onus shifts to the responding party plaintiff to show that the claim has a real chance of success and that there are genuine issues requiring a trial. Here, the defendants’ evidence does not reach that evidentiary threshold.
[38] In their factum and written materials, the defendants focus on the “Vents” deliverable specified in the request for bids and ignore the engineering and design deliverable, that is also required as a deliverable under the RFB. Focusing on that argument, the defendants brought no evidence to show, in the alternative, that the engineering and design of the building, inclusive of air circulation, was not negligent. Rather, they all argue that this obligation rested entirely with the plaintiff and did not address the alternative – what if it did not. Indeed, the answer to the legal question – with whom rested that legal obligation – is fact specific, and when I consider only the evidence placed before me, without using the fact-finding powers, the extent of the reliance placed by the plaintiff on the defendants remains a genuine issue requiring a trial.
[39] Moreover, the defendants argue that they could not have known that the specified ventilation would not be sufficient, and that finding that they owed a duty of care would have required that they each hire an engineer to verify the specifications provided by the plaintiff. However, the engineering complexity of the ventilation specifications provided in the RFB is not at all comparable to the complexity of the engineering specifications in Edgeworth. The defendants have provided no expert evidence in support of their argument that a general contractor and a manufacturer needed engineering expertise and could not have known, from their respective experience and expertise, whether a building that size would be adequately vented with the passive vents specified by the plaintiff.
[40] When I consider the evidence presented on this motion, I find that the defendants have not met their initial onus of showing that they did not owe a duty of care to the plaintiff. The defendants have therefore not met their initial burden and demonstrated that there is no genuine issue requiring a trial with respect to their respective defence.
[41] In addition, I find that the defendants have not demonstrated that there is no genuine issue requiring a trial regarding their defence that their recommendation of installing fans was not negligent. The plaintiff’s experts have opined that the recommended fans were inefficient and likely increased the spread and extent of mold contamination – the defendants have provided no responding expert evidence. As a result, and in any event, this by itself, would leave as parties to this action, at least the defendants MacDougall and Harnois. Considering my comments below, any such partial summary judgment, in the circumstances of this case, would not be in the interests of justice.
[42] Regarding the limitation period argument, s. 5(1) of the Limitations Act, 2002, S.O. 2002, c. 24 Sched. B provides when discovery of a claim occurs:
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).
[43] There is no evidence on this motion sufficient to find an act or omission that could have triggered the presumption available under s. 5 (2) of the Limitations Act.
[44] The evidence indicates that the plaintiff noticed unusual level of moisture in November 2015. They contacted the defendant MacDougall and agreed to the installation of fans, which were only installed in February 2016. In December 2015, the plaintiff noticed a worsening of the high humidity, and the appearance of mold. However, they were working with the defendant MacDougall towards an expected solution, the installation of fans.
[45] As a result, the evidence presented on this motion does not establish that the claim was discovered prior to December 18, 2015, and that part of the motion is also dismissed.
[46] As indicated above, in the circumstances of this case it would be quite inefficient to grant a partial summary judgment or judgment on some of the claims because the claims are intertwined and because all the defendants have brought a crossclaim against the other defendants.
[47] In Hryniak, Justice Karakatsanis stated, at para. 60, that:
…if some of the claims against some of the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact-finding powers to grant summary judgment against a single defendant. Such partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest of justice. On the other hand, the resolution of an important claim against a key party could significantly advance access to justice, and be the most proportionate, timely and cost-effective approach.
[48] In Butera v. Chown, Chairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, the Ontario Court of Appeal elaborated as to why partial summary judgment should be considered a “rare procedure” (at para. 34), emphasizing, among other concerns, the delay in resolving the main action, the additional expense to which this may lead, and the risk of inconsistent findings.
[49] In Service Mold + Aerospace Inc. v. Khalaf, 2019 ONCA 369, 146 O.R. (3d) 135 at para. 14, Justice Paciocco restated these concerns and indicated: “In Hryniak, at para. 60, Karakatsanis J. recognized that partial summary judgment may “run the risk of duplicative proceedings or inconsistent findings of fact” at trial. There is also the risk that partial summary judgment can frustrate the Hryniak objective of using summary judgment to achieve proportionate, timely and affordable justice. If used imprudently, partial summary judgment can cause delay, increase expense, and increase the danger of inconsistent findings at trial made on a more complete record”.
[50] This is exactly that kind of a case. A partial summary judgment, in the circumstances of this case, would frustrate the Hryniak objective of using summary judgments to achieve proportionate, timely and affordable justice, as such a ruling could cause delay, increase expenses, and increase the danger of inconsistent findings at trial made on a more complete record, particularly as one of the defendants has served a jury notice.
[51] In Roy v. Ottawa Capital Area Crime Stoppers, 2018 ONSC 4207, 142 O.R. (3d) 5087, my colleague, MacLeod J. (as he was then), indicated at para. 38:
If factual findings are to be made on a summary judgment motion, particularly in the face of a jury notice, summary judgment should only be granted if the evidence is such that no reasonable jury properly instructed could find for the plaintiff. That is not the case with regard to the conduct of the police.
[52] This is also not the case in this matter considering the evidence presented by the plaintiff on this motion.
[53] As a result, this action should not be dismissed on a motion for summary judgment.
[54] The above is sufficient to dismiss the defendant’s motion. However, I also note that the plaintiff by its evidence and expert report has shown that there are genuine issues about the above (the extent of their reliance, whether the building was fit for its purpose, and whether this action was started in time) requiring a trial.
Conclusion
[55] The defendants’ motion for summary judgment is therefore dismissed.
[56] If the parties are unable to agree on the costs of this motion within the next 10 days, then brief written submissions, not exceeding five pages and five enclosures, shall be sent to my assistant by 4 pm by the plaintiff on April 20, 2021, by the defendants by April 23, 2021, and any brief reply by April 26, 2021. I ask the parties to kindly advise me if they resolve the issue of costs but I will nonetheless assume that the issue of costs has been resolved if I do not receive any written submissions, or hear differently, by April 26, 2021.
Mr. Justice Pierre E. Roger
Date: April 8, 2021
COURT FILE NO.: CV-17-74933
DATE: 20210408
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: ST. LAWRENCE PARKS COMMISSION, Plaintiff
-and-
JOHN GORDON CONSTRUCTION INC., TIMOTHY MACDOUGALL, MACDOUGALL HOMES AND CONTRACTING LTD., LES INDUSTRIES HARNOIS INC., and ABC MEGADOME COMPANY, Defendants
BEFORE: Mr. Justice Pierre E. Roger
ENDORSEMENT on motion for summary judgment
Roger J.
Released: April 8, 2021