Court File and Parties

COURT LOCATION: Kenora COURT FILE NO.: CV-18-28-00 DATE: 2022-02-15

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kenon Builders Inc, Plaintiff (Responding Party) v. Joseph Guertin and Marjorie Guertin, Defendants (Moving Parties)

HEARD: February 15, 2022

BEFORE: Regional Senior Justice B. Warkentin

COUNSEL: Cheryl Siran, for the Plaintiff (Responding Party) Dave Hill, for the Defendants (Moving Parties)

ENDORSEMENT

[1] This was a motion by the defendants seeking to add Brian Kraynyk as a party to this proceeding by adding him as a defendant to the counterclaim.

[2] For oral reasons given, the defendants’ motion to add Mr. Kraynyk as a party to the proceeding is dismissed. The limitation period to add Mr. Kraynyk has expired. The defendants’ argument that they discovered new evidence in May 2021 to support their allegations against Mr. Kraynyk that he personally committed fraud and made negligent misrepresentations are not credible.

[3] The issue in question was related to the failure by the plaintiff to install a septic tank as part of the construction project the plaintiff had undertaken on behalf of the defendants. The defendants learned that there was no septic tank on this property at the very latest in March 2019, but more likely as early as sometime in 2018.

[4] There is nothing that was discovered in the new evidence to support any other conclusion than that they had known that the septic tank had not been installed for well over 2 years prior to this new evidence coming to light. The new evidence is simply more evidence to support that fact and does not amount to evidence supporting the new allegations of fraud and negligent misrepresentation against Mr. Kraynyk personally.

[5] The defendants’ own affidavit materials were replete with evidence supporting that knowledge. This new evidence adds nothing more to that knowledge, with the exception of supporting their claim against the plaintiff that the septic tank had not been installed, but does not change the two-year limitation period as set out in s. 21 of the Limitations Act. The two-year limitation period began to run at the latest in March 2019 and therefore expired in March 2021, well before this motion to add Mr. Kraynyk personally was commenced.

[6] Because I have dismissed the defendants’ motion based on the missed limitation period, I did not address the remaining issues regarding whether or not it would be reasonable to add Mr. Kraynyk personally to this action.

[7] Notwithstanding that I have dismissed the defendants’ motion to add a party, the motion to amend the statement of defence is granted except for any paragraphs that reference the proposed added party and claims against him personally.

[8] Counsel shall discuss the amended statement of defence and if they are unable to agree on the amendments they may return before me for a final ruling on the amendments.

[9] Similarly, if counsel are unable to agree on the costs of this motion, they may return before me for a ruling on costs upon filing the usual material or alternatively may provide written submissions on costs.

[10] In order that these issues are not drawn out, counsel shall have 20 days (until March 7, 2022) to attempt to resolve the amendments and costs issues, failing which they shall either contact the trial coordination office to obtain a further hearing before me or they shall submit written submissions no later than March 18, 2022.

The Honourable Justice B. R. Warkentin, R.S.J.

Released: February 15, 2022