CITATION: Soetemans v. Design Concrete Systems Ltd., 2022 ONSC 5595

COURT FILE NO.: 331/19

DATE: 2022/10/03

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ANDRE SOETEMANS and KATHY SOETEMANS

Plaintiffs

– and –

DESIGN CONCRETE SYSTEMS LTD., H & L FORMING LTD., EDWARD MICHAEL TALSMA, MARK WHITMORE and R.J. BURNSIDE & ASSOCIATES LIMITED

Defendants

John K. Downing and Jack Masterman, for the Plaintiff

Christopher Prince, for Design Concrete Systems Ltd.

David S. Young, for H & L Forming Ltd.

Tal Letourneau and Kyle Magee and Sally Kim, for Edward Michael Talsma, Mark Whittemore (incorrectly described as Mark Whitmore in the title of proceedings) and R.J. Burnside & Associates Limited

HEARD: December 13, 2021 and April 8, 2022

grace j.

A. Introduction

Introduction

1A hog finishing barn was constructed for Andre and Kathy Soetemans in 2002. H & L Forming Ltd. (“H and L”) acted as a contractor. R. J. Burnside & Associates Limited (“Burnside”) provided various off and onsite engineering services. Edward Michael Talsma and Mark Whittemore were two of the engineers Burnside then employed. Design Concrete Systems Ltd. (“Design Concrete”) fabricated precast concrete beams that were installed in the barn by others.

2Construction started in August and was completed in October 2002. On August 16, 2017, one of the beams failed and the structure partially collapsed. Sadly, seventy-seven hogs were killed. The farm operation was and is no longer able to use the building.

3The plaintiffs’ insurer rejected the claim that followed on the basis the collapse was caused by (i) a deficiency in design; (ii) a manufacturing or material defect; or (iii) faulty workmanship during the construction of the barn.

4This action was commenced on July 2, 2019. Negligence is alleged on the part of each defendant. Breach of contract is also asserted insofar as the corporate defendants are concerned. Damages are claimed for lost income and in relation to the demolition and reconstruction of the barn.

5Statements of defence and crossclaims have been filed by each of the defendants. All of them maintain that this action was commenced after expiration of what is known as the ultimate limitation period. In this motion, they seek summary judgment dismissing the action.

6The defendants Talsma and Whittemore also rely on the terms of a contract the plaintiffs entered into with Burnside on July 3, 2002. The relevant provision will be reproduced later in these reasons.

B. The Evidentiary Record

The Evidentiary Record

7A substantial evidentiary record containing approximately 2,500 pages was filed. The defendants started with a motion record containing a short affidavit of Kyle Magee, one of the lawyers acting on behalf of Burnside, Talsma and Whittemore. Mr. Magee’s affidavit dealt with largely uncontentious issues: who the parties were and details of the project the defendants were involved in. It also contained an explanation of the defendants’ roles and when construction of the barn was completed. It went on to briefly describe the partial collapse, the allegations that followed, the defences that underlie the defendants’ motion for summary judgment and the procedural history of the action. A small number of documents were attached, along with copies of the pleadings and the transcripts of the examinations for discovery of Andre and Kathy Soetemans conducted on June 26 and July 20, 2020, respectively.

8In response, the plaintiffs delivered a 1,200-page motion record. It included an affidavit of lawyer Brian Whitwham. Mr. Whitwham’s affidavit summarized and attached transcripts of the examinations for discovery of Kenn Hines of Design Concrete, Lambertus Baltessen of H and L and Carl Lankinen of Burnside that were completed in June 2020. Answers to undertakings were appended.

9Affidavits of the plaintiffs were included. Among other things, Andre Soetemans described the nature of the plaintiffs’ farm operation and at some length, the construction project undertaken in 2002, including his understanding of the roles played by the corporate defendants. Various documents were referenced. A more detailed account of the partial collapse was provided, as was a list of alleged deficiencies in the construction of the barn. The affidavit of Kathy Soetemans adopted the contents of the affidavit of her spouse.

10The plaintiffs’ responding motion record also included a short affidavit of Shawn Jay of Arcon Forensic Engineers, a rule 53 expert they had retained. It attached a copy of his resumé, an acknowledgement of expert’s duty, his report dated July 14, 2021 and a number of documents he referenced.

11The defendants then delivered supplementary motion records. Burnside’s contained affidavits of Messrs. Talsma and Whittemore. Design Concrete filed an affidavit of Kenn Hines and Lambertus Baltessen provided one on behalf of H and L.

12Mr. Talsma acknowledged the presence of his seal on the structural drawings and signature on a September 27, 2002, site report. Several issues were noted but subject to those, the structural components of the finishing barn were said to have been completed in accordance with the drawings Burnside had provided.

13He deposed that he had no recollection of observing or being advised of deficiencies that were not contained in the site report. Specifically, Mr. Talsma maintained he had no knowledge of the construction deficiencies that underlie the plaintiffs’ claim.

14Mr. Whittemore said he would have noted any construction deficiencies that he observed in the series of site reports he appeared to have authored.

15Mr. Hines of Design Concrete described H and L as the general contractor. According to his affidavit, Design Concrete was retained by H and L, to supply twenty-seven precast concrete beams. He maintained they were constructed in accordance with engineering drawings provided by a third-party engineering firm, Argue & Associates. Mr. Hines deposed that those involved in the manufacture of the beams have no recollection of issues of concern, mistakes or errors. Details were provided of the processes followed and of documentation said to be missing due to the passage of time. More than once, Mr. Hines emphasized that the beams were not installed by Design Concrete. He said H and L performed that task.¹

16H and L’s Lambertus Baltessen said he did not remember whether H and L installed the beams.² Mr. Baltessen recollected others being involved in the construction of the barn as well, specifically, a framer, an electrician and a barn equipment contractor. He said H and L “was likely involved in the creation of the concrete walls and pillars in the middle of the facility.”³

17Cross-examinations were conducted of Messrs. Talsma⁴, Whittemore⁵, Hines⁶, Baltessen⁷, Soetemans⁸ and Jay⁹.

C. The Test for Summary Judgment

The Test for Summary Judgment

18Summary judgment dismissing an action is to be granted if the court is satisfied the moving party has established the claim does not involve a genuine issue requiring a trial: rule 20.04(2) (a).¹⁰

19That threshold will have been met if the process is one which: (i) permits required findings of fact to be made; (ii) allows the application of the law to those facts; and (iii) is a proportionate, more expeditious and less expensive means of achieving a just result: Hryniak v. Mauldin, 2014 SCC 7, at para. 49 (“Hryniak”). Writing on behalf of a unanimous court in Hryniak, Karakatsanis J. said at para. 50:

…the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.

D. The Limitations Defence – the Legal Principles

The Limitations Defence – the Legal Principles

20In most instances, persons with civil claims will be unable to pursue them unless they start a court proceeding within a statutorily stipulated time period. The general rule applies no matter how meritorious the claim. This action is no exception.

21Section 15(2) of the Limitations Act, 2002 underlies the defendants’ argument that this action should be dismissed because it is out of time. The subsection provides as follows:

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

22As mentioned, construction of the barn was completed by the end of October 2002. Only for the purposes of this motion, the defendants ask the court to assume there were construction deficiencies.¹¹ The Limitations Act, 2002, was proclaimed into force on January 1, 2004. A transitional provision in the statute moves the starting date for the purposes of the analysis to that latter date.¹²

23This action was commenced on July 2, 2019. Since this proceeding was started more than fifteen years after the proclamation date of the Limitations Act, 2002, the defendants maintain this action is clearly statute barred and should be dismissed.¹³

24The plaintiffs disagree. They rely on a statutory exception. Section 15(4) (c) (i) of the Limitations Act, 2002 reads:

The limitation period established by subsection (2) does not run during any time in which,

(c) the person against whom the claim is made,

(i) wilfully conceals from the person with the claim the fact that the injury, loss or damage has occurred, that it was caused or contributed to by an act or omission or that the act or omission was that of the person against whom the claim is made…¹⁴

25If engaged, this action is timely because the limitation period will have been tolled: Endean v. St. Joseph’s General Hospital, 2019 ONCA 181, at para. 28.

26The person relying on the exemption bears the onus of proving its application: s. 15(5). That means, of course, that the burden in on the plaintiffs.

27As Brown J. explained in Pioneer Corp v. Godfrey, 2019 SCC 42, at para. 47, three considerations underlie limitation periods:

The first is that limitation periods foster certainty in that “[t]here comes a time … when a potential defendant should be secure in his reasonable expectation that he will not be held to account for ancient obligations”…The second rationale is evidentiary: limitation periods are intended to help prevent evidence from going stale, to the detriment of the plaintiff or the defendant…Finally, limitation periods serve to encourage diligence on the part of plaintiffs in pursuing their claims… [Emphasis in original. Citations omitted]

28The issue of “very belated litigation” had been addressed earlier by the Alberta Court of Appeal in Bowes v. Edmonton (City), 2007 ABCA 347. There, Côté J.A. explained why such proceedings are ordinarily prohibited:

…people and businesses have to get on with their lives. They should not have to store bulky or fragile records forever, even for decades. Their savings and futures should not be founded on fading memories, or the hazard of whose witness first dies or disappears. The social cost of all that is high. People and businesses must be able to plan their affairs without keeping idle huge reserves against the possibility of ancient claims arising. No one would buy a construction business or a professional practice if it might drag with it claims over 30 years old…

The second aspect of the harm is that trying to find and test evidence about events decades old is usually roulette, not a serious exploration of the truth…¹⁵

29Operation of the ultimate limitation period is not subject to discoverability: Zeppa v. Woodbridge Heating & Air Conditioning Ltd., 2019 ONCA 47, at para. 107; Pioneer Corp v. Godfrey, supra, at para. 32. However, as noted earlier, it is not absolute. A statutory exception exists. In Cimolai v. Hall, 2005 BCSC 31 at para. 372, Holmes J. explained why that is so:

Limitation periods attempt to achieve a balance between the interests of defendants in being protected against stale claims, and the interests of plaintiffs in bringing their claims. Postponement or extension provisions fine tune this balance to achieve fairness between these respective interests in particular classes of situations.¹⁶

30The fraudulent concealment doctrine exists to ensure that defendants cannot take advantage of the prohibition if it would be unconscionable for them to do so. Consequently, in some instances, litigation may be commenced against those who conceal facts underlying a cause of action, even if the subject matter of the action is very old: Giroux Estate v. Trillium Health Centre (2005), 2005 CanLII 1488 (ON CA), 74 O.R. (3d) 341 (C.A.), at para. 28; Pioneer Corp v. Godfrey, supra, at para. 52.

31In Colin v. Tan, 2016 ONSC 1187 (S.C.J.), at para. 45, Perell J. offered a summary of the circumstances in which the ultimate limitation period will be extended. He wrote:

The constituent elements of fraudulent concealment are threefold: (1) the defendant and the plaintiff have a special relationship with one another; (2) given the confidential nature of the relationship, the defendant’s conduct is unconscionable; and (3) the defendant conceals the plaintiff’s right of action either actively or the right of action is concealed by the manner of the wrongdoing… For fraudulent concealment, the defendant must hide, secret, cloak, camouflage, disguise, cover-up the conduct or identity of the wrongdoing. [Citations omitted]¹⁷

32That passage was cited with approval in two decisions released by the Court of Appeal in early 2019.¹⁸ However, the Supreme Court of Canada restated the applicable test later that year in Pioneer Corp v. Godfrey, supra.

33On behalf of the majority of the court at para. 54, Brown J. wrote in part:

When…does fraudulent concealment arise so as to delay the running of a limitation period? Recalling that it is a form of equitable fraud, it becomes readily apparent that what matters is not whether there is a special relationship between the parties, but whether it would be, for any reason, unconscionable for the defendant to rely on the advantage gained by having concealed the existence of a cause of action…

It follows that the concern which drives the application of the doctrine of equitable fraud is not limited to unconscionability of taking advantage of a special relationship with the plaintiff. Nor is the doctrine’s application limited … to cases where there is something “tantamount to or commensurate with” a special relationship between the plaintiff and the defendant … While a special relationship is a means by which the defendant might conceal the existence of a cause of action, equitable fraud may also be established by pointing to other forms of unconscionable behaviour, such as (for example) “some abuse of a confidential position, some intentional imposition, or some deliberate concealment of facts” … In short, the inquiry is not into the relationship within which the conduct occurred, but into the unconscionability of the conduct itself. [Emphasis in original. Citations omitted]

34In para. 75 of their factum, the defendants maintain that the statement was obiter dictum that “did not explicitly overrule or appear to consider Colin v. Tan”. I accept the first point but not the second. While Brown J. acknowledged it was “strictly speaking, unnecessary” to deal with the issue, he did so in light of “the submissions and attention given to this issue at the courts below”.¹⁹ The analysis that followed included references to appellate authorities in Canada and the United Kingdom. In my view, the legal landscape has clearly shifted.

35Canadian courts are now instructed to focus on the conduct and not the parties’ relationship. The issue is whether, given its behaviour, it would be unconscionable, for any reason, to allow the defendant to rely on the ultimate limitation period. In light of Pioneer Corp v. Godfrey, the many earlier cases relied upon by the defendants must be read with caution, to the extent they require and then define a “special relationship”.²⁰

36A 1973 decision is a good starting point. In explaining the common law doctrine of fraudulent concealment in King v. Victor Parsons & Co., Lord Denning wrote with typical clarity:

The word ‘fraud’ here is not used in the common law sense. It is used in the equitable sense to denote conduct by the defendant or his agent such that it would be ‘against conscience’ for him to avail himself of the lapse of time. The cases show that if a man knowingly commits a wrong … or a breach of contract (such as putting in bad foundations to a house), in such circumstances that it is unlikely to be found out for many a long day, he cannot rely on the Statute of Limitations as a bar to the claim … In order to show that he ‘concealed’ the right of action ‘by fraud’, it is not necessary to show that he took active steps to conceal his wrongdoing or breach of contract. It is sufficient that he knowingly committed it and did not tell the owner anything about it. He did the wrong or committed the breach secretly … To this word “knowingly’ there must be added ‘recklessly’ … Like the man who turns a blind eye. He is aware that what he is doing may well be a wrong, or a breach of contract, but he takes the risk of it being so. He refrains from further inquiry least it should prove to be correct: and says nothing about it. The court will not allow him to get away with conduct of that kind. It may be that he has not dishonest motive: but that does not matter. He has kept the plaintiff out of the knowledge of his right of action: and that is enough…²¹

37Almost two decades later the issue was addressed by the Supreme Court of Canada in M. (K.) v. M. (H.), 1992 CanLII 31 (SCC), [1992] 3 S.C.R. 6. At para. 64, La Forest J. said:

The factual basis for fraudulent concealment is described in Halsbury’s, 4^th^ ed., vol. 28, para. 919, at p. 413, in this way:

It is not necessary, in order to constitute fraudulent concealment of a right of action, that there should be active concealment of the right of action after it has arisen; the fraudulent concealment may arise from the manner in which the act which gives rise to the right of action is performed. [Emphasis added in the decision of La Forest J.]

38The defendant cited authority for their submission that the doctrine only operates in very narrow circumstances. For example, in Ambrozic v. Burcevski, 2008 ABCA 194, the Alberta Court of Appeal expressed the opinion that while unconscionable conduct could either be by way of active concealment or a failure to disclose:

… the defendant must know of the wrong. A defendant who is unaware that he has committed a wrong is protected by statutory limitations… [Citations omitted].²²

39In Johnson v. Studley. 2014 ONSC 1732 (S.C.J.), Perell J. concluded that concealment meant hiding, secreting, cloaking, camouflaging, disguising or masking the conduct that was the subject of the complaint.²³

40In the context of equitable fraud, the Supreme Court of Canada has expressed the view that:

Fraud in the “wider sense of a ground for equitable relief “is so infinite in its varieties that the Courts have not attempted to define it, but “all kinds of unfair dealing and unconscionable conduct in matters of contract come within its ken.²⁴

41Decisional law provides some useful illustrations. There will be an insufficient foundation in situations involving “an honest blunder” or a simple breach of contract.²⁵

42Cases in which the doctrine has been applied include those involving misrepresentations designed to allay concerns expressed by the claimant,²⁶ or deception.²⁷

43In Halloran v. Sargeant, 2002 CarswellOnt 2730 (C.A.), the Court of Appeal found that the defendant had breached its obligation of good faith and fair dealing to its former employee because it had made an incorrect representation despite being “in a position to ascertain the state of the law at the time and provide” reliable information. The Court of Appeal concluded the defendant had acted unconscionably and that the doctrine of fraudulent concealment applied.²⁸

E. The Limitations Defence – Analysis and Conclusion

The Limitations Defence – Analysis and Conclusion

44As mentioned, only for the purposes of this motion, the defendants agree the court is to assume there were construction deficiencies as the plaintiffs allege.²⁹ They do not concede, however, that any of them were concealed.

45To the contrary, the moving parties maintain there is no evidence to support the plaintiffs’ theory that any of the matters complained of were known to the defendants and hidden from the Soetemans.

46In their factum, the defendants noted that the plaintiffs did not mention wilful concealment prior to serving their replies to the statements of defence.³⁰ They argue the response “is a transparent attempt to salvage a doomed claim”³¹ because, they say, there is “no evidence” to support the plaintiffs’ argument.³²

47Are the defendants correct? I return to the evidentiary record that was assembled for the motion.

48Andre Soetemans explained the importance of the roles played by Burnside and H and L in his July 9, 2021, affidavit. At para. 11 he deposed in part:

We relied upon Burnside to professionally perform its job, including ensuring that the construction of the Barn proceeded in accordance with the Engineer Drawings and informing us if the Barn deviated from the Engineer Drawings. We relied upon H & L to professionally perform its job, including constructing the Barn in accordance with Burnside’s Engineer Drawings, constructing the Barn in conformance with applicable standards, and reporting to us if there were any issues in relation to the same.

49With respect to the concrete beams Design Concrete manufactured, Mr. Soetemans referred to a bill of lading provided to H and L. It contained the following statement:

ALL PRECAST CONCRETE PRODUCTS LISTED HERE COMPLY WITH CSA A23.4

50It should be noted that in Union Square Apartments Ltd. v. Academy Contractors Inc., the evidence that the defendant had no knowledge of deficiencies in the construction work that had been performed was “uncontroverted”. Further, the evidence established that the defendants’ representative “did what he thought he was supposed to do and did nothing to hide or turn a blind eye to his conduct.”³³

51The defendants maintain the plaintiffs’ case does not rise beyond that level. Arguably, they say, there was negligence but nothing more; certainly “not the type of unconscionable conduct that warrants a finding of fraudulent or wilful concealment.”³⁴

52To be clear, the defendants argue the evidence does not support what s. 14(4) (c) (i) of the Limitations Act, 2002, requires, namely, proof that they, or any of them, wilfully concealed from the plaintiffs any act or omission causing or contributing to the partial collapse of the finishing barn. Consequently, Design Concrete, Burnside and H and L ask that the action be dismissed because, they submit, there is no genuine issue requiring a trial.

53The plaintiffs take the contrary position. They maintain that to those involved in the construction industry, the nature, extent and repetition of the various deficiencies would have been plain and obvious.

54Counsel for the plaintiffs retained Shawn M. Jay, a civil and structural engineer to prepare a report concerning “the most probable cause(s) of a beam collapse within” the plaintiffs’ hog barn.³⁵

55Mr. Jay’s July 14, 2021, eighty-one-page report set forth a long chronology of the material reviewed, the steps completed and examinations undertaken before its delivery.³⁶ The documents provided to Mr. Jay included a summary of findings and opinions of Ayman Dabbas, an engineer retained by Design Concrete’s insurer. Although there was some disagreement, Mr. Jay “generally” concurred with them.³⁷

56Based on the work of the engineer they retained, the plaintiffs compiled a list of at least eleven significant deficiencies.³⁸

57Mr. Jay summarized a number of his findings as follows:

The collapsed beam was improperly designed and constructed by Design Concrete and did not meet the requirements of Burnside’s Drawings … and applicable CSA Standards … Therefore, the collapsed beam and all of the rest of the beams are not fit for their intended use in the Soetemans’ hog barn. This is contrary to the Burnside Site Report of September 27/2002…

The site reports by Burnside … which are general reviews, did not note any of the visible defects in the bearing of the beams or the change from rectangular columns to circular columns as well as the improper placement of the reinforcing at the top of the columns or out of plumbness of the columns, even though this [sic] would have been readily visible to a professional engineer.

The original contractor, H & L Forming, did not construct the building according to the building plans or the Ontario Building Code…³⁹

58Later, Mr. Jay explained:

There was not adequate reinforcing bars and stirrups in the beams and columns. The beams and columns were not in conformance with the Burnside Drawings … and the beams were not in conformance with the Argue Drawing of the precast beam dated December 10, 2001…

The lack of properly designed and installed reinforcing at the end of the beam for shear and tension forces, as required by the strut and tie method, is the major factor in the shear cracking and ultimate collapse of the involved beam.⁴⁰

59Toward the end of his report, Mr. Jay expressed his opinion concerning the cause of the partial collapse in a focused way. In part, he wrote:

…the ultimate cause of the beam collapse was due to a shear failure at one or both ends of the collapsed beam.

The shear failure most probably would not have occurred, but for the lack of proper design and detailing of reinforcing at the end of the beam and the low compressive strength of the concrete…

As with most failures of structures, it is not one thing alone that causes a collapse, but a number of things that when considered together all contribute somewhat. There were numerous construction deficiencies by H & L Forming that were not noted in the Burnside Site Reports…These most probably contributed to the early onset of the precast beam failure…⁴¹

60I have mentioned the Burnside site reports before. The one dated September 27, 2002, represented that subject to the few deficiencies noted in the document “the structural components of the barn, based on periodic site reviews, appears [sic] to be constructed in accordance with” the Engineer Drawings.

61In their factum the defendants maintained that Mr. Jay’s report was “not relevant to any issue on the motion” because it did “not offer any evidence with respect to the question of concealment”.⁴²

62However, that is not so. Mr. Jay said a number of shortcomings were not noted in any of the site reports Burnside prepared, even though they “would have been readily visible to a professional engineer”. They included: (i) defects in the bearing of the beams; (ii) a change from rectangular to circular columns; (iii) the improper placement of reinforcement at the top of the columns; and (iv) the fact the columns did not meet an acceptable standard of “plumbness”.⁴³

63The problems discussed in Mr. Jay’s report were not, the plaintiffs argue, ones that could have been easily overlooked or missed. They say there were “glaring” defects, representations that were “plainly false”, components that did not meet the requirements of the drawings Burnside had prepared, the applicable standards of the Canadian Standards Association or the Ontario Building Code.

64These issues, the plaintiffs maintain, are quintessentially ones within the business and expertise of the defendants. Those undertaking the work and/or installation would have known that certain components were substandard. That fact was not something the Soetemans knew or were expected to know anything about. All of the deficiencies identified and discussed in the Jay report were concealed within the structure that was completed in October 2002 and only revealed to the Soetemans as a result of and following the catastrophic failure that occurred on August 16, 2017.

65Where does this leave the court on this motion?

66In para. 51 of their factum, the moving parties make this assertion:

Contrary to what the volume of the plaintiffs’ material would suggest, this motion is not factually complex. It is a straightforward application of the Limitations Act.

67I disagree. On a motion of this kind, the court need not decide whether the ultimate limitation period applies. The issue is whether the fraudulent concealment exception on which the plaintiffs rely involves a “genuine issue requiring a trial”⁴⁴

68It clearly is.

69I do not fault the plaintiffs for failing to address the issue of the ultimate limitation period until serving their reply. It was not incumbent upon them to anticipate the response of the defendants. Even if the issue was known beforehand, a limitation period is a defence that must be specifically plead.

70Further, the evidentiary record compiled by the plaintiffs is not artificially “bulky” as the defendants maintain. It is trite to say that the responding parties were obligated, on a motion of this kind, to fully articulate their position and to support it with evidence.

71A voluminous record was assembled because this case is factually complex. Hundreds of pages of transcripts of examinations for discovery and of cross-examinations were filed, involving the parties and Mr. Jay. Since Hryniak, “trial in a box” has become an often-repeated phrase.

72Volume and complexity are not synonymous. However, in a case like this, the amount of material is indicative of the inadvisability – actually impossibility – of fairly determining serious and significant issues summarily.

73It includes highly technical evidence, involving various aspects of a significant construction project. Mr. Jay’s report identifies issues relating to and lays potential blame at the feet of each of the corporate defendants. Crossclaims have been asserted.

74It is not disputed that the partial collapse of the finishing barn was unexpected and occurred well before the expiration of the building’s expected timespan.

75Various explanations for any proven deficiency may well be forthcoming. Some but not all of them are innocent ones. On this motion, the plaintiffs have succeeded in providing a factual basis for the operation of the statutory exception to the ultimate limitation period. To be clear, there is an evidentiary foundation for the wilful concealment argument. Will it succeed at trial? I cannot say. Could it? Yes.

76A limitations defence was the basis for the defendant’s motion for summary judgment in Buell v. Canadian Imperial Bank of Commerce Wood Gundy Securities Inc., [1998] O.J. No. 2861 (Gen. Div.). The plaintiffs argued the limitation period was tolled based on the doctrine of fraudulent concealment. The motion was dismissed. At para. 74, the motions judge wrote in part:

The application of equitable principles is a matter for the exercise of the court’s discretion after balancing the equities and prejudices as between the parties. It ought not to be done on a motion for summary judgment except in the clearest of cases.

77It is not lost on me that the decision predates the significant amendments made to the civil rules relating to motions for summary judgment that followed in 2010. Hryniak, supra was released in early 2014.

78However, as Nordheimer J.A. cautioned in Mason v. Perras Mongenais, 2018 ONCA 978, at para. 44, “summary judgment remains the exception, not the rule.”

79Although expressed in the context of a “staged” motion for summary judgment, the warning expressed in Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, resonates. At para. 44, Lauwers J.A. wrote:

What happened here illustrates one of the problems that can arise with a staged summary judgment process in an action where credibility is important. Evidence by affidavit, prepared by a party’s legal counsel, which may include voluminous exhibits, can obscure the affiant’s authentic voice. This makes the motion judge’s task of assessing credibility and reliability especially difficult in a summary judgment and mini-trial context. Great care must be taken by the motion judge to ensure that decontextualized affidavit and transcript evidence does not become the means by which substantive unfairness enters, in a way that would not likely occur in a full trial where the trial judge sees and hears it all.

80While I acknowledge the significant challenges facing this court generally and in the civil sphere specifically, some cases require a trial if the parties are unable to resolve them some other way. The trier of fact hears the testimony and reviews documentary evidence at a measured pace and is not provided with a substantial written record that is compiled and presented en bloc. Positions that may have been taken out of court, may change or not be advanced at all. Objections can be heard and dealt with and rulings made in real time. This is a matter of that kind.

81More than once the defendants made the point that given the passage of time, memories have faded, documents have been destroyed or lost and people have moved – perhaps sometimes even passed – on. Consequently, precisely who did what and when, is not always known. The plaintiffs disagree.

82However, even if the defendants are correct, it would be grossly unfair to allow them to benefit from the passage of time, if it turns out that it is unconscionable for one, some or all of them to rely on the ultimate limitation period.

83In this case and on this factual record, the potential application of s. 15(4) (c) (i) of the Limitations Act, 2002 is a genuine issue requiring a trial. The motion for summary judgment by Burnside, Design Concrete and H and L is dismissed.

F. The Contractual Defence – the Legal Principles

The Contractual Defence – the Legal Principles

84In their factum, the plaintiffs concede that Mr. Whittemore should be released from the action.⁴⁵

85That leaves Mr. Talsma. He relies on the following provision in the contract Burnside and John Soetemans executed:

The Client expressly agrees that the Consultant’s employees and principals shall have no personal liability to the client in respect of a claim, whether in contract, tort, or other cause of action in law. Accordingly, the client expressly agrees that it will bring no proceedings and take no action in any court of law against any of the Consultant’s employees or principals in their personal capacity.⁴⁶

86The applicable principles are well settled. Employees may take advantage of a limitation of liability clause contained in a contract entered into by their employer and a plaintiff if (i) its benefit extends to them expressly or impliedly; and (ii) at the time of the alleged wrong, they were acting in the course of their employment and were doing the very things contemplated by the agreement.⁴⁷

G. The Contractual Defence – Analysis and Conclusion

The Contractual Defence – Analysis and Conclusion

87Counsel for the plaintiffs made brief submissions on the point. He noted that Mr. Talsma was also acting in his personal capacity because the Engineer Drawings bear his stamp and signature.

88I do not accept that argument. I recognize the statement of claim alleges this defendant “negligently designed and stamped the hog finishing barn drawings” because they created a design that was destined to collapse prematurely. However, it is clear from the motion record that the actual complaints relate to deviations from the drawings that occurred during construction. During that time period, Mr. Talsma was clearly acting as an employee of Burnside. He and Mr. Whittemore stand in the same position. Insofar as they are concerned, the action is dismissed.

H. The Plaintiffs’ Request for Summary Judgment

The Plaintiffs’ Request for Summary Judgment

89Another aspect of the motion should be briefly addressed. During argument, plaintiffs’ counsel submitted “boomerang” summary judgment should be granted against the defendants. That relief was sought notwithstanding the fact the plaintiffs had not, seemingly, communicated their intention to do so beforehand. A notice of motion was not served on their behalf. It was unmentioned in the plaintiffs’ factum.

90As mentioned earlier, the defendants asked the court to assume there were deficiencies for the purpose of the motion, only because of their reliance on the ultimate limitation period. Their existence was not otherwise conceded.

91For that reason, alone, the plaintiffs’ late breaking request is denied. Even if timely and proper notice had been given, my analysis and conclusion would have mirrored that set forth earlier in these reasons. The issue of wilful concealment is a genuine one requiring a trial.

I. Summary, Directions and Costs

Summary, Directions and Costs

92For the reasons given, the defendants’ motion for summary judgment is dismissed insofar as R.J. Burnside & Associates Limited, Design Concrete Systems Ltd. and H & L Forming Ltd. are concerned.

93The defendants’ motion for summary judgment is granted insofar as the defendants Mark Whittemore and Edward Michael Talsma are concerned.

94The plaintiffs’ oral request for summary judgment is denied.

95Short cost submissions not exceeding five pages, exclusive of any offer to settle, may be served and filed by the plaintiffs on the one hand and by the defendants (ideally jointly) on the other, by no later than the close of business on October 17 and 31, 2022, respectively.

96If, after review of these reasons and discussion among counsel, directions or terms under rule 20.05(2) are contemplated, arrangements may be made for a case conference through the trial coordinator once counsel have spoken among themselves and agreed on at least three mornings for an initial 8 a.m. teleconference before me for up to forty-five minutes.

Grace J.

Footnotes

1. 1See para. 10 of his affidavit.
2. 2See para. 8 of his affidavit.
3. 3See para. 6 of his affidavit.
4. 4Containing 151 pages.
5. 5Containing 62 pages.
6. 6Containing 69 pages.
7. 7Containing 58 pages.
8. 8Containing 83 pages
9. 9Containing 87 pages
10. 10While helpful, the parties filed factums that exceeded the page limit set forth in the Consolidated Practice Direction. Leave should have been sought.
11. 11See para. 52 of the defendant’s factum.
12. 12Section 24(5) 1.
13. 13The statute was proclaimed in force on January 1, 2004. The moving parties rely on s. 24(5) 1.
14. 14As noted, Ontario’s statute uses the phrase “wilful concealment”. Elsewhere in Canada, the words “fraudulent concealment” appear. There is no difference in substance between the two: Graeme Mew, The Law of Limitations, (Toronto: LexisNexis, 2016), at p. 231.
15. 15The excerpts are drawn from paras. 120 and 121.
16. 16Aff’d, 2007 BCCA 225.
17. 17Cited with approval in Endean v. St. Joseph’s General Hospital, 2019 ONCA 181 at para. 30.
18. 18They were: Zeppa v. Woodbridge Heating & Air Conditioning Ltd., 2019 ONCA 47, at para. 62 and Endean v. St. Joseph’s General Hospital, supra, at para. 30
19. 19At para. 51.
20. 20That view is consistent with the one expressed in Beaudoin Estate v. Campbellford Memorial Hospital, 2021 ONCA 57, at paras. 20 – 22.
21. 21[1973] 1 All E.R. 206 (Eng. C.A.), at p. 209. See, too, Guerin v. R., 1984 CanLII 25 (SCC), [1984] 6 W.W.R. 481 (S.C.C.), at para. 111.
22. 22At para. 23 and Pioneer Corp. v. Godfrey, supra, at paras. 52 - 54.
23. 23At para. 83. Cited with approval in Endean v. St. Joseph’s General Hospital, 2019 ONCA 181, at para. 31
24. 242002 SCC 19, at para. 39. Cited with approval in Pioneer Corp. v. Godfrey, supra, at para. 54.
25. 25Union Square Apartments Ltd. v. Academy Contractors Inc., 2016 ABQB 575, at para. 40.
26. 26Giroux Estate v. Trillium Health Centre (2005), 2005 CanLII 1488 (ON CA), 74 O.R. (3d) 341 (C.A.), at para. 38.
27. 27Ontario Public Trustee v. Mortimer, 1985 CarswellOnt 697 (H.C.J.), at para. 43.
28. 28At paras. 29, 33 and 35.
29. 29See paras. 3 and 52 of the defendants’ factum.
30. 30The plaintiffs brought a motion for leave to late serve replies. It was unopposed. The requested order was made by Nicholson J. on June 14, 2021.
31. 31This excerpt is drawn from para. 6 of the moving parties’ factum.
32. 32Ibid. See, too, para. 42.
33. 33Union Square Apartments Ltd. v. Academy Contractors Inc., supra, at para. 52.
34. 34This excerpt is taken from para. 84 of the defendants’ factum.
35. 35The excerpt is drawn from Mr. Jay’s report dated July 14, 2021 (the “Jay report”).
36. 36There was no challenge to the qualifications of the plaintiffs’ expert. Nor do I recall a challenge to his opinion.
37. 37See p. 64 of the Jay report.
38. 38At para. 20.
39. 39At p. 66. There was no challenge to the qualifications of the plaintiffs’ expert. Nor do I recall a challenge to his opinion.
40. 40At pp. 70 and 71.
41. 41See pp. 79 – 80 of the Jay report.
42. 42At para. 53.
43. 43See pp. 66 – 67 of the Jay report.
44. 44Unlike P. (W.) v. Alberta, 2014 ABCA 404, at para. 36, where the court concluded the issue was “insufficiently meritorious” and granted the defendants’ motion for summary judgment.
45. 45The concession is found in para. 68 of the plaintiffs’ factum.
46. 46Para. 2) under the heading Conditions/Limitations. The dates of May 1, 2002 and July 3, 2002 appear alongside the signatures of Burnside and John Soetemans respectively.
47. 47London Drugs Ltd. v. Kuehne & Nagel International Ltd., 1992 CanLII 41 (SCC), [1992] 3 S.C.R. 299, at para. 258.