Kowal et al. v. Shyiak et al., 2012 ONCA 512

• Judge: Rouleau, Watt and Pepall, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 28, 2012
• Jurisdiction: Ontario
• Citations: 2012 ONCA 512;(2012), 296 O.A.C. 352 (CA)

Kowal v. Shyiak (2012), 296 O.A.C. 352 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. JL.055

Henry Kowal and Julia Ciddio (plaintiffs/respondents) v. Jerry Shyiak and Giant Builders (Thunder Bay) Inc. (defendants/appellants) and Ronald Bingham and Overall Plastering (third parties)

(C54684; 2012 ONCA 512)

Indexed As: Kowal et al. v. Shyiak et al.

Ontario Court of Appeal

Rouleau, Watt and Pepall, JJ.A.

July 25, 2012.

Summary:

The defendants (Giant Builders and its principal) constructed the plaintiffs' new house. The plaintiffs contracted separately with the third parties (Overall Plastering and its principal) to install stucco finishing on the home's exterior. The plaintiffs took possession of their newly constructed home on December 28, 2005. In the spring of 2006, they observed water leakage. By the fall of 2006, the house was leaking in four locations. The plaintiffs sued the defendants on November 17, 2009. They claimed estimated damages of $95,068 to $115,538 for breach of contract, breach of statutory warranty and negligence. They pleaded, inter alia, that although they had paid Overall Plastering directly, its work was completed under Giant Builders' direction and co-ordination. The defendants pleaded the expiry of the two year limitation period (Limitations Act (Ont.), s. 4), issued a third party claim against Overall Plastering and its principal, and brought a motion for summary judgment on the basis that the limitation period had expired.

The Ontario Superior Court, in a decision reported at [2011] O.T.C. Uned. 6302, dismissed the motion. The court held that neither as of August 31, 2007, when Giant Builders' principal told one defendant in a telephone conversation "See you in court" or as of November 1, 2007, when the plaintiffs sent a letter to the defendants, did the plaintiffs have sufficient knowledge as to whether the fault was reasonably that of the defendants or that of the third parties. The defendants appealed.

The Ontario Court of Appeal allowed the appeal, holding that the action was statute-barred.

Limitation of Actions - Topic 15

General principles - Discoverability rule - Application of - The defendants (Giant Builders and its principal) constructed the plaintiffs' new house - The plaintiffs contracted separately with the third parties (Overall Plastering and its principal) to install stucco finishing on the home's exterior - The plaintiffs took possession of their newly constructed home on December 28, 2005 - In the spring of 2006, they observed water leakage - By the fall of 2006, the house was leaking in four locations - The plaintiffs sued the defendants on November 17, 2009 - They claimed damages for breach of contract, breach of statutory warranty and negligence - They pleaded, inter alia, that although they had paid Overall Plastering directly, its work was completed under Giant Builders' direction and co-ordination - The defendants pleaded the expiry of the two year limitation period (Limitations Act (Ont.), s. 4), issued a third party claim against Overall Plastering and its principal, and brought a motion for summary judgment on the basis that the limitation period had expired - The motions judge dismissed the motion - The judge held that neither as of August 31, 2007, when Giant Builders' principal told one defendant in a telephone conversation "See you in court", or as of November 1, 2007, when the plaintiffs sent a letter to the defendants, did the plaintiffs have sufficient knowledge as to whether the fault reasonably belonged to the defendants or the third parties - The Ontario Court of Appeal allowed the defendants' appeal - Certainty of a defendant's responsibility for the act or omission that caused or contributed to the loss was not required - It was enough to have prima facie grounds to infer that the acts or omissions were caused by the party or parties identified - Expert opinions were not required in all cases - By August 31, 2007, and certainly by November 1, 2007, the plaintiffs were familiar with all the material facts - They knew that they had contracted with both Giant Builders and Overall Plastering - They were aware who had done the work on their home - They knew that they had suffered a loss and the acts or omissions were caused by either the defendants, or the third parties, or both - The motions judge erred in concluding that the plaintiffs needed to obtain expert opinions before determining that they had a cause of action against the defendants - Indeed, cumulatively, the three reports subsequently obtained by the plaintiffs were inconclusive - In any event, an element of the claim was that, as a general contractor, Giant Builders had a duty to oversee the third party's work and Giant Builders was alleged to have breached that duty - No expert report was required in order to advance that claim.

Limitation of Actions - Topic 2023

Actions in contract - Actions for breach of contract - When time commences to run - [See Limitation of Actions - Topic 15 ].

Limitation of Actions - Topic 3103

Actions in tort - Negligence - When time begins to run - [See Limitation of Actions - Topic 15 ].

Limitation of Actions - Topic 4403

Statutory causes of action - When time begins to run (incl. suspension) - [See Limitation of Actions - Topic 15 ].

Limitation of Actions - Topic 9305

Postponement or suspension of statute - General - Discoverability rule - [See Limitation of Actions - Topic 15 ].

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - [See Limitation of Actions - Topic 15 ].

Cases Noticed:

Gaudet et al. v. Levy et al. (1984), 47 O.R. (2d) 577 (H.C.), refd to. [para. 18].

McSween v. Louis et al. (2000), 132 O.A.C. 304; 187 D.L.R.(4th) 446 (C.A.), refd to. [para. 18].

Lawless v. Anderson et al. (2011), 276 O.A.C. 75; 2011 ONCA 102, refd to. [para. 18].

Counsel:

Chantal M. Brochu, for the appellant, Jerry Shyiak;

W. Danial Newton and Tina M. Petrick, for the respondent, Henry Kowal;

David Scott, for the respondent, Overall Plastering.

This appeal was heard on June 28, 2012, by Rouleau, Watt and Pepall, JJ.A., of the Ontario Court of Appeal. Pepall, J.A., delivered the following decision for the court on July 25, 2012.