Court File Numbers

CV-21-00086200-00A2, CV-21-00087353-00A3,
CV-21-00087420-00A3, CV-21-00087594-00A3,
CV-21-00086250-00A3, CV-21-00087350-00A3,
CV-21-00086079-00A3, CV-21-00085598-00A3

Date: 2025-02-20

Ontario Superior Court of Justice

Parties

Plaintiffs:
Lower William Properties Ltd., Upper William Properties Ltd., Forty-Three William Properties Ltd., 10393398 Canada Inc. (o/a Le Mien Craft Noodle House), 45 William Ltd., William Monopoly Properties Ltd., 8791376 Canada Inc., and S.I.N.I. Group Inc. (Formerly, Cacao 70 Canada Inc.)

Defendants:
Domenic Santaguida, 1155324 Ontario Inc. (c.o.b. “Vittoria Trattoria”), 2361212 Ontario Limited, Mervin Blostein, 11456253 Canada Inc. (c.o.b. “Toiture Audet Inc.”), John Doe Roofing Contractor(s), Sebastien Lamarche Champagne, Magella Doe, Martin Luc Anctil, Jacob Charron, Elite Armour Inc., Martin Groulx, Toiture Audet Inc., Toitures Audet Inc., and Guillaume Audet

Third Party:
Maurizio Martignano

Counsel

• Josiah T. MacQuarrie, for the Defendants Domenic Santaguida, 1155324 Ontario Inc. (c.o.b. “Vittoria Trattoria”), 2361212 Ontario Limited, and Mervin Blostein
• Philip Ghosh and James Zeppieri, for the Third Party

Judge

R. Ryan Bell

Date Heard

2025-01-14

Endorsement on Rule 21 Motions

Overview

[1] The motions before me are brought in eight different actions. The issue in each is the same: whether the third party claims commenced by the defendants Domenic Santaguida, 1155324 Ontario Inc. c.o.b. as Vittoria Trattoria, 2361212 Ontario Limited, and Mervin Blostein (collectively, Vittoria Trattoria) against the third party Maurizio Martignago,[^1] are barred by the ultimate limitation period in s. 15 of the Limitations Act, 2002, SO 2002, c 24, Sch B.

[2] The underlying facts are not in issue. On April 12, 2019, a fire occurred at various properties in the ByWard Market in Ottawa. The fire is alleged to have begun on the roof of 37 William Street where Vittoria Trattoria is located.

[3] Mr. Martignago is an architect who was involved in a renovation at 37 William Street in 2001. It is alleged that certain architectural work contributed to the spread of the 2019 fire.

[4] In 2021, various lawsuits were commenced arising from the fire, naming Vittoria Trattoria as defendants. In 2023, Vittoria Trattoria commenced third party claims for contribution and indemnity against Mr. Martignago arising out of his role in the 2001 renovations.

[5] Mr. Martignago contends that, correctly interpreted and applied, the 15-year ultimate limitation period must result in the dismissal of the third party claims because the 2001 renovation work occurred 18 years before the fire. Vittoria Trattoria argues the third party claims are not statute-barred because s.18 of the Act deems the date of alleged wrongdoing to be the date on which Vittoria Trattoria was served with the statements of claim giving rise to its claims for contribution and indemnity – that is, in 2021 – not the date on which the underlying act or omission occurred.

[6] For the following reasons, the motions are dismissed.

Analysis

[7] The Act establishes an ultimate limitation period of 15 years:

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

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

[8] Section 18 of the Act governs claims for contribution and indemnity. Section 18 provides:

18(1) For the purposes of subsection 5(2)[^3] and section 15, in the case of a claim by one alleged wrongdoer against another for contribution and indemnity, the day on which the first alleged wrongdoer was served with the claim in respect of which contribution and indemnity is sought shall be deemed to be the day the act or omission on which the alleged wrongdoer’s claim is based took place.

(2) Subsection (1) applies whether the right to contribution and indemnity arises in respect of a tort or otherwise.

[9] Mr. Martignago argues that the third party claims are barred by the ultimate limitation period in s.15 of the Act because the alleged roof renovation work took place more than 15 years before the third party claims against him were issued. With respect, this interpretation ignores the clear and unambiguous language of s.18.

[10] Section 18(1) of the Act is a deeming provision relating to contribution and indemnity claims. The Court of Appeal for Ontario has confirmed that, when read in combination with s.4 (the basic two-year limitation period) and s.15, s.18 establishes the date of service of the injured party’s statement of claim as the presumed commencement date for the basic two-year limitation period and the actual commencement date for the ultimate 15-year limitation period with respect to contribution and indemnity claims: Placzek v. Green, 2009 ONCA 83, para 24.[^4]

[11] A claim for contribution and indemnity under s.1 of the Negligence Act, RSO 1990, c N.1 is not a damage claim arising out of a tort, but instead is a statutory claim, founded on principles of restitution and unjust enrichment: Placzek v. Green, 2009 ONCA 83, paras 35-38. It follows that the “acts or omissions” on which the claim for contribution and indemnity is based are “the failures by the other concurrent tortfeasors to pay their fair share of the injured party’s damages before the contribution and indemnity claimant’s liability to the injured party has crystallized: Placzek v. Green, 2009 ONCA 83, para 42.

[12] Prior to the enactment of the Act, the weight of authority in Ontario indicated that a cause of action for contribution and indemnity under s.1 of the Negligence Act did not accrue, and the limitation period did not begin to run, until the injured party obtained judgment against the person claiming contribution and indemnity: Placzek v. Green, 2009 ONCA 83, para 43.

[13] As Sharpe J.A. observed in Canaccord Capital Corp. v. Roscoe, 2013 ONCA 378, para 17, the reform of the law of limitations in Ontario was “aimed at creating a clear and cohesive scheme for addressing limitation issues, one that balances the plaintiff’s right to sue with the defendant’s need for certainty and finality.” And, as described by Paciocco J.A. in Mega International, at para. 73, “[t]here is an element of injustice in using a limitation period to deny a claim that could not have been discovered with reasonable diligence”; “the court should be reluctant to adopt a legislative interpretation that effectively permits the possibility of such an injustice, unless that is the outcome clearly dictated by the legislation.”[^5]

[14] On a plain reading, s.18 does not permit “the possibility of such an injustice.” Section 18 expressly dictates that in the case of contribution and indemnity claims, the two-year limitation period presumptively commences on the date of service of the statement of claim, but the 15-year ultimate limitation period actually commences on the date of service of the statement of claim. Mr. Martignago argues that on “a correct interpretation” of ss.15 and 18, since the plaintiffs in these matters were barred by the ultimate limitation period from bringing a claim against him, so too is Vittoria Trattoria. With respect, Mr. Martignago’s interpretation flies in the face of the plain language of s.18, the scheme of the Act, and judicial interpretation of s.18.

[15] Mr. Martignago relies on the Court of Appeal’s decision in Wong v. Lui, 2023 ONCA 272. In my view, Wong does not assist Mr. Martignago. At issue in that case was the interpretation of s.15(4)(b), and specifically, whether the motion judge erred in failing to conclude that for s. 15(4)(b) to apply, the claim must arise while the plaintiff is a minor. The Court of Appeal held that s.15(4)(b) only postpones the running of the ultimate limitation period for minors who have claims that arose when they were minors, concluding that the motion judge’s interpretation failed to take into account of and was inconsistent with the plain language, scheme, legislative history, and object of the entire Act: Wong, at paras. 17, 43.[^6] The Court of Appeal reiterated that the purpose of the ultimate 15-year limitation period is “to balance the concern for plaintiffs with undiscovered causes of action with the need to prevent the indefinite postponement of a limitation period and the associated costs related to record-keeping and insurance resulting from continuous exposure to liability”: Wong, at para. 25.

[16] The Court of Appeal in Wong added, at para. 26:

Moreover, balanced against the right to finality is the acknowledgement that it would be unfair to bar a person’s right to make a claim while in a condition that renders them unable to take steps to pursue their rights. As a result, limitation periods are suspended by reason of incapacity or age.

[17] Similarly, it would be unfair to bar a person’s right to make a claim for contribution and indemnity before they are in a position to pursue a third party claim, that is, before the statement of claim has even been served. That is the unfairness that s.18 guards against by expressly deeming the date of service of the statement of claim as the actual commencement date for the ultimate limitation period.

Conclusion

[18] The third party claims are not statute-barred by the 15-year ultimate limitation period in the Act. The r. 21 motions are dismissed.

[19] In the event the parties are unable to agree on costs, they may make written submissions limited to a maximum of three pages, excluding relevant attachments. Vittoria Trattoria shall deliver its costs submissions by March 6, 2025. Mr. Martignago shall deliver his responding costs submissions by March 20, 2025. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.

Justice R. Ryan Bell
Date: February 20, 2025

Footnotes

[^1]: Incorrectly named in the titles of proceeding.

[^2]: Section 15(4) of the Act sets out the circumstances in or during which the ultimate 15-year limitation period does not run.

[^3]: Section 5 of the Act sets out the rules concerning when a claim is discovered. Section 5(1) provides that a claim is discovered on the earlier of two dates: the first is set out in s.5(1)(a) and is premised on actual knowledge of the matters necessary to discover a claim; the second is set out in s.5(1)(b), and is premised on deemed knowledge of the matters set out in s.5(1)(a). Section 5(2) creates a presumption that claimants acquire actual knowledge of their claims on the date the act or omission on which the claim is based takes place: Placzek v. Green, 2009 ONCA 83, para 23.

[^4]: See also Mega International Commercial Bank (Canada) v. Yung, 2018 ONCA 429, para 62.

[^5]: Citing Demide v. Canada (Attorney General), 2015 ONSC 3000, para 88.

[^6]: See Ruth Sullivan, The Construction of Statutes, 7th ed. (Toronto: LexisNexis Canada, 2022), at §2.03; Rizzo & Rizzo Shoes Ltd. (Re), para 27.