Reasons for Decision
Court File No.: CV-22-00000750-0000
Date: 2025-05-30
Ontario Superior Court of Justice
Between:
Kathy Olson
(Plaintiff)
Ben Jefferies & Tanisha Merkley, for the Plaintiff
- and -
Matthew Lubberts and 2316988 Ontario Inc.
(Defendants)
Andrew Beney, for the Defendants
Heard: January 7, 2025
REASONS FOR DECISION
(summary judgment)
Latimer J.
Introduction
[1] Kathy Olson inherited a seasonal family cottage in 2015. Upon retirement, she wished to live on the property year-round. To do so, however, alterations to the structure were required. She contacted multiple contractors and received a near-unanimous opinion that the cottage could not be renovated; demolition and a rebuild were necessary to make the aged cottage livable twelve months of the year.
[2] Mr. Lubberts and his company were the outlier opinion; he advised that restoration was possible. Relying on this representation, Olson signed a contract with his company to complete a renovation. The work was completed in June of 2018, Lubberts was paid in full, and Olson began to live in the cottage full-time.
[3] Sadly, things did not work out as hoped. Parts of the home began deteriorating quickly, with windows, the roof, and flooring sustaining early damage. Olson contemplated litigation but never filed a claim until mid-2022, after obtaining an expert report that laid bare the current state of the cottage. Olson filed suit on July 15, 2022, and this court case began.
[4] On this motion, the defendants seek summary judgment, relying on the Limitations Act, 2002[^1] as a complete defence to the claim. It is submitted that the plaintiff had sufficient knowledge by late 2019 to commence this action, and her failure to do so violates s. 4 of the Act.
[5] I find that, notwithstanding that this matter is in the Simplified Procedure stream, the available factual record provides an appropriate case for summary judgment. A trial is not required to determine that the limitation period for this litigation has been exceeded. As such, the action is barred and there is no genuine issue for trial. The defendants’ motion is granted for the reasons that follow.
I. Facts
[6] Both Olson and Lubberts have filed detailed affidavits. Olson was also cross-examined in discovery. While the parties disagree on the implications of the evidence, very little is in dispute on the evidence itself.
[7] Olson inherited the cottage from her mother. It was built in 1947 and has been owned by her family since 1952. It was not winterized, and therefore could only be reasonably inhabited in the spring, summer, and fall seasons.
[8] Following her retirement in 2017, Olson wished to renovate the cottage and live there year-round. With no personal knowledge regarding renovations, she sought out opinions from professionals in the field, specifically the following individuals:
- John Jeffery of Jeffery Brothers Ltd. He personally attended the cottage and conducted an inspection. He subsequently advised Ms. Olson that “it was not feasible to repair the existing structure, and that [the cottage] needed to be demolished and re-built”.
- Royal Homes, a custom prefabricated home builder contractor. A representative of the company inspected the cottage and ultimately recommended that “[they] demolish the existing structure and build a new cottage, rather than doing any renovations”.[^2]
[9] Despite the consistent advice she received from these professionals, Olson persisted in her desire to winterize the existing structure through renovation. She acknowledges her motivation to renovate was largely sentimental, given her childhood memories and attachment to the existing structure.
[10] In the summer of 2017, she met the defendant, Matthew Lubberts, through a friend of her daughter. Lubberts worked as a general contractor. After inspecting the property and being advised by Olson that other contractors had advised against renovation, Lubberts expressed the contrary view that Olson had been seeking all along – it was possible to winterize the cottage exclusively through renovation.
[11] An agreement was reached and Lubberts began work on the cottage in August 2017. The project completed in June 2018 and Olson paid Lubberts in full.
[12] Following the completion of the project, deficiencies quickly emerged. Specifically:
- In “winter 2018/2019”, it became clear that windows were either not caulked or insufficiently caulked.
- At the same time, the roof was leaking.
- Windowpanes were installed in rotting window frames (this fact was identified in 2018).
- No eavestroughs were installed upon completion of the project in June 2018.
- In the summer of 2018 or 2019, the plaintiff’s daughter’s foot went through the floor in the bedroom.
- In October 2019, the water heater was leaking.
[13] In August 2021, further issues with the flooring were identified. This caused an expert report to be obtained (what the parties have termed the “Bran report”), which was completed June 9, 2022. In the report, problematic construction issues, such as closed vents and new material installed on top of old, deteriorated material (e.g. floor joists), were identified.
[14] After receipt and review of the Bran report, Olson filed her statement of claim on July 15, 2022. She alleged breach of contract, as well as fraudulent and/or negligent misrepresentation regarding Lubbert’s ability to renovate the cottage to a year-round livable structure. She asks the court to remedy this misrepresentation by requiring Lubberts to return the money she paid to him; effectively, to restore her to her original financial position before she entered into the renovation agreement.
II. Summary Judgment
[15] Rule 20.01(3) of the Rules of Civil Procedure (the “Rules”) provides that a defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim.
[16] Under Rule 20.04(2) of the Rules, a court shall issue summary judgment if it is satisfied that there is no genuine issue requiring a trial. In Hryniak v. Mauldin, 2014 SCC 7, at para. 4, the Supreme Court of Canada explained that “a trial is not required if a summary judgment motion can achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial”.
[17] At para. 33 of her factum, the plaintiff identifies that her claim turns on the allegation that Lubberts made the following representations:
- That it was both cost-effective and practically feasible to renovate the existing cottage, rather than demolishing it, as had been proposed by the previous contractors;
- That he had the requisite skills, expertise, and knowledge to complete the renovations; and
- Upon the completion of the renovations, the cottage would be fit for habitation.
[18] The plaintiff submits that she did not possess sufficient information until June 2022 – when she received the Bran report – to understand that these representations were negligent and/or fraudulent and that she should not have entered into this agreement in the first place. The earlier-identified deficiencies did not place her in a position to seek equitable recission, as she does now.
[19] The defendants’ position is that the plaintiff’s claim is statute barred because of the passage of time and, as a result, there is no genuine issue requiring a trial. The plaintiff had sufficient information in 2019 to bring this action and her decision not to prevents it from moving to adjudication now. In the circumstances, summary judgment is the required result.
III. The Limitations Act, 2002
[20] Absent express statutory language, a proceeding cannot be commenced in respect of a claim after the second anniversary of the day on which the claim was “discovered”: see s.4 of the Act.
[21] The purpose of the Act was recently discussed by the Supreme Court of Canada in Scott v. Golden Oaks, 2024 SCC 32. At paragraph 76 of the majority opinion, Justice Jamal wrote:
The purpose of the Limitations Act, 2002, like other modern limitations statutes, is to balance the interests of plaintiffs and defendants by promoting the established certainty, evidentiary, and diligence rationales underlying limitation periods (citations omitted). The certainty rationale seeks “to promote accuracy and certainty in the adjudication of claims”; the evidentiary rationale seeks “to provide fairness to persons who might be required to defend against claims based on stale evidence”; and the diligence rationale seeks “to prompt persons who might wish to commence claims to be diligent in pursuing them in a timely fashion” (citation omitted).
[22] Rule 5(1) defines “discovery” for the purposes of the Act:
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).
[23] The Supreme Court of Canada discussed discoverability in Grant Thornton LLP v. New Brunswick, 2021 SCC 31, at para. 43 stating that “a claim is discovered when a plaintiff has knowledge, actual or constructive, of the material facts on which a plausible inference of liability on the defendant’s part can be drawn.”
[24] In Lawless v. Anderson, 2011 ONCA 102, at para. 23, the Court of Appeal for Ontario wrote:
Determining whether a person has discovered a claim is a fact-based analysis. The question to be posed is whether the prospective plaintiff knows enough facts on which to base an allegation of negligence against the defendant. If the plaintiff does, then the claim has been “discovered”, and the limitation begins to run.
[25] Further, s. 5(2) of the Act creates a statutory presumption of plaintiff knowledge, absent evidence to the contrary:
A person with a claim shall be presumed to have known of the matters referred to in clause (1)(a) on the day the act … took place unless the contrary is proved.
[26] The Court of Appeal addressed this provision in Morrison v. Barzo, 2018 ONCA 979, at paras. 31-32. Justice van Rensburg, writing for the court, stated:
… First, the plaintiff must overcome the presumption in s. 5(2) that he or she knew of the matters referred to in s. 5(1)(a) on the day the act or omission on which the claim is based took place, by leading evidence as to the date the claim was actually discovered (which evidence can be tested and contradicted by the proposed defendant). The presumption is displaced by the court's finding as to when the plaintiff subjectively knew he had a claim against the defendants: Mancinelli, at para. 18. To overcome the presumption, the plaintiff needs to prove only that the actual discovery of the claim was not on the date the events giving rise to the claim took place. It is therefore wrong to say that a plaintiff has an onus to show due diligence to rebut the presumption under s. 5(2): Fennell, at para. 26.
Second, the plaintiff must offer a "reasonable explanation on proper evidence" as to why the claim could not have been discovered through the exercise of reasonable diligence. The evidentiary threshold here is low, and the plaintiff's explanation should be given a "generous reading” and considered in the context of the claim: Mancinelli, at paras. 20 and 24.
IV. Analysis
[27] The statement of claim in this proceeding was filed with the court on July 15, 2022. While two years prior would be July 15, 2020, limitation periods at that point were suspended due to emergency legislation[^3] passed during the COVID-19 pandemic. As a result, the question for this motion is whether the claim was known, or should have been known, prior to March 15, 2020.
[28] Following a review of the evidentiary record, I am satisfied that, while Olson only decided to bring this action following receipt of the Bran report in June 2022, she had sufficient knowledge of relevant damage years earlier – certainly no later than Summer 2019 – to cause this action to accrue and start the limitation period clock.
[29] A reasonable person in Olson’s circumstances would have been aware of the following facts:
- Two qualified contractors had told her the cottage’s deterioration had reached a point where renovation was not possible. It needed to be demolished and rebuilt. While Ms. Olson personally did not have any construction expertise, she had access to two separate opinions from individuals who did. Their opinions on the cottage’s renovation feasibility are significant factors in my conclusion that by 2019 Olson had discovered – as s. 5(1) of the Limitations Act, 2002 defines that term – that she had a claim against the defendant.
- Upon completion of the renovation work in June 2018, things started to go wrong in a hurry. Water infiltrated the roof and windows. No eavestroughs had been installed. The flooring dangerously gave way in the bedroom. The combination of these deficiencies, their association with the renovation work very recently completed, and the swiftness of their onset were all factors that would have made plain to a reasonable person, possessed with prior knowledge about the impracticality of renovation, that the defendants’ work had failed to make the cottage livable year-round.
- Further, Olson agreed during examination in discovery that she knew about all these deficiencies by early 2019. At that time, she even considered bringing a claim against the defendants but decided against it until 2022 when she received additional information in the Bran report.
[30] I find as a fact that Olson’s 2019 knowledge regarding these post-renovation failings were more than sufficient to start the limitation period for her action against the defendants. A “plausible inference of liability” was available to be drawn before the plaintiff received the additional information in the Bran report: Grant Thornton, at para. 43. Olson’s agreement with Lubberts and his company was based on the alleged representation that he could make the cottage livable year-round and that he had the requisite “skills, expertise and knowledge to complete” the task. Events immediately following the completion of the renovation project (e.g. the window, roof, and flooring deficiencies) called that representation into question. These events largely occurred prior to Fall 2019 and are cumulatively sufficient to cause this action to accrue more than two years prior to July 15, 2022, the date on which the statement of claim was filed: Peixeiro v. Haberman, at para. 18.
V. Disposition
[31] Returning to the “question to be posed”, as described by the Court of Appeal in Lawless, at para. 23, I am satisfied the plaintiff knew enough by Summer 2019 to bring the claim she delayed bringing until July 15, 2022. She had been told by two contractors that the cottage required demolition, not renovation. The defendant however provided a contrary position, and the plaintiff no doubt hoped he would be proven correct. The almost immediate pattern of deficiencies identified by the plaintiff in 2018 and 2019 rendered her civil claims against the defendants discoverable. Her failure to commence the action until 2022 violated s. 4 of the Act. In the result, there is no genuine issue in this proceeding requiring a trial. The defendants’ motion for summary judgment is granted.
[32] The defendants are entitled to costs. If the issue cannot be agreed upon by the parties, they may submit a bill of costs and make written submissions consisting of not more than two double-spaced pages in length, together with any relevant documentation and excerpts of any legal authorities referenced, according to the following timetable:
- The defendants shall serve their costs submissions, if any, by no later than June 16, 2025.
- The plaintiff shall serve her costs submissions, if any, by no later than June 30, 2025.
__________________________________
Latimer J.
Released: May 30, 2025
[^1]: S.O. 2002, ch. 24 (the “Act”). [^2]: While this information is hearsay, it is admissible to establish Olson’s state of mind during the relevant time periods. [^3]: O. Reg 73/20: Limitation Periods, under Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c. 17.