Pusch v. Freshair Enterprises Ltd. et al., (2007) 293 Sask.R. 289 (CA)

• Judge: Cameron, Vancise and Jackson, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: September 27, 2006
• Jurisdiction: Saskatchewan
• Citations: (2007), 293 Sask.R. 289 (CA);2007 SKCA 60

Pusch v. Freshair Ent. Ltd. (2007), 293 Sask.R. 289 (CA);

      397 W.A.C. 289

MLB headnote and full text

Temp. Cite: [2007] Sask.R. TBEd. JN.016

Freshair Enterprises Ltd., Classic Superior Seamless Exteriors (1988) Ltd. and Superior Seamless Steel Siding of Canada Ltd. (defendants/appellants) v. Wayne Pusch (plaintiff/respondent)

(No. 1003; 2007 SKCA 60)

Indexed As: Pusch v. Freshair Enterprises Ltd. et al.

Saskatchewan Court of Appeal

Cameron, Vancise and Jackson, JJ.A.

May 31, 2007.

Summary:

The plaintiff contracted with the defendant, Classic Superior Seamless Exteriors (1988) Ltd., to supply and install steel siding on his house. The warranty in the contract expressly stated that it did not extend to fading. The defendant installed the siding in 1988. The siding faded unevenly. On June 2, 1998 the plaintiff sued the defendant for damages for breach of warranty and breach of the Sale of Goods Act.

The Saskatchewan Court of Queen's Bench, in a decision reported at 252 Sask.R. 92, allowed the action and awarded judgment for the plaintiff. The court found that the fundamental problem with the siding was that it came from two different manufacturer's lots or production runs and the defect was not excluded from the warranty in the contract. The court also held that the action was not barred by the six year limitation period in s. 3(1)(f)(i) of the Limitations of Actions Act where the plaintiff first discovered the problem with the siding in the fall of 1992. The defendant appealed.

The Saskatchewan Court of Appeal, Jackson, J.A., dissenting, allowed the appeal. The court held that the defect lay in the colour coating of the siding and the trial judge erred in failing to give effect to the express terms of the contract which excluded fading from the warranty. The court also held that the trial judge misapplied s. 3(1)(f)(i) of the Limitations of Actions Act and the plaintiff's action was barred by that section.

Contracts - Topic 2107

Terms - Express terms - Warranty clauses - [See Contracts - Topic 2120 ].

Contracts - Topic 2120

Terms - Express terms - Exclusionary clauses - General - The plaintiff contracted with the defendant company to supply and install steel siding on his house - The warranty in the contract expressly stated that it did not extend to fading - The defendant installed the siding in 1988 - The siding faded unevenly - In 1998 the plaintiff sued the defendant for breach of warranty and breach of sections of the Sale of Goods Act - The trial judge allowed the action - The trial judge found that the fundamental problem with the siding was that it came from two different manufacturer's lots or production runs and the defect was therefore not excluded from the warranty in the contract - The defendant appealed - The Saskatchewan Court of Appeal allowed the appeal - The court disagreed with the trial judge's characterization of the defect in the siding - The court concluded that the defect lay in the colour coating of the siding and that the trial judge erred in failing to give effect to the express terms of the contract which excluded fading from the warranty - See paragraphs 1 to 9.

Limitation of Actions - Topic 15

General principles - Discoverability rule - Application of - [See second Limitation of Actions - Topic 2023 ].

Limitation of Actions - Topic 2023

Actions in contract - Actions for breach of contract - When time commences to run - The defendant company supplied and installed steel siding on the plaintiff's house in 1988 - The siding faded unevenly - On June 2, 1998, the plaintiff sued the defendant for breach of contract - The trial judge held that the action was not barred by the six year limitation period in s. 3(1)(f)(i) of the Limitations of Actions Act where the plaintiff's concerns about the siding were not fully realized until the fall of 1992 when he first wrote to the defendant - The Saskatchewan Court of Appeal held that the trial judge misapplied s. 3(1)(f)(i) - The court held that assuming, without deciding, that the discoverability principle applied, the trial judge failed to adequately address the real issue, which was the time that the material fact of the defect in the siding was discovered or ought to have been discovered by the plaintiff with the exercise of due diligence - The plaintiff had admitted that the disparity in the colour of the siding was perceptible within a year or so after it was installed - He had also contacted the defendant about the problem in 1990 - It was clear that the defect was known to the plaintiff three years before he wrote to the defendant in 1992 - His action was therefore barred by s. 3(1)(f)(i) - See paragraphs 10 to 22.

Limitation of Actions - Topic 2023

Actions in contract - Actions for breach of contract - When time commences to run - The defendant company supplied and installed steel siding on the plaintiff's house in 1988 - The siding faded unevenly - In 1998, the plaintiff sued the defendant for breach of contract - At issue was whether the action was barred by the six year limitation period in s. 3(1)(f)(i) of the Limitations of Actions Act - The Saskatchewan Court of Appeal stated that while it was not deciding the issue, it was sceptical that the legislature intended to incorporate the discovery principle into s. 3(1)(f)(i) in relation to an action for the recovery of damages stemming from a breach of contract for the sale of goods - The court stated, inter alia, that the purposes of the section suggested that the legislature intended that an action for the recovery of damages for breach of a contract for the sale of goods be commenced within six years of the breach, not six years from the discovery of the breach - See paragraphs 23 to 35.

Limitation of Actions - Topic 9305

Postponement or suspension of statute - General - Discoverability rule - [See both Limitation of Actions - Topic 2023 ].

Sale of Goods - Topic 4361

Conditions and warranties - Latent defects - General - [See Contracts - Topic 2120 ].

Cases Noticed:

Fritz v. Knorr et al. (1993), 111 Sask.R. 142 (Q.B.), refd to. [para. 11].

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109, refd to. [paras. 12, 53].

F.P. v. Saskatchewan, [2005] 3 W.W.R. 257; 249 Sask.R. 42; 325 W.A.C. 42; 2004 SKCA 59, refd to. [paras. 26, 68].

Consumers' Glass Co. v. Foundation Co. of Canada Ltd. (1985), 9 O.A.C. 193; 51 O.R.(2d) 385 (C.A.), refd to. [paras. 32, 64].

Aguonie v. Galion Solid Waste Material Inc. (1998), 107 O.A.C. 114; 156 D.L.R.(4th) 222 (C.A.), refd to. [para. 32].

Callaghan Contracting Ltd. v. Royal Insurance Co. of Canada (1989), 97 N.B.R.(2d) 381; 245 A.P.R. 381; 59 D.L.R.(4th) 753 (C.A.), refd to. [paras. 32, 65].

Ruzicka v. Costigan, [1984] 6 W.W.R. 1; 54 A.R. 385; 33 Alta. L.R.(2d) 21 (C.A.), refd to. [para. 32].

98956 Investments Ltd. (Receivership) v. Fidelity Trust Co., [1988] 6 W.W.R. 427; 89 A.R. 151 (C.A.), refd to. [paras. 32, 62].

Luscar Ltd. v. Pembina Resources Ltd., [1995] 2 W.W.R. 153; 162 A.R. 35; 83 W.A.C. 35; 24 Alta. L.R.(3d) 305 (C.A.), refd to. [para. 32].

MacCulloch v. McInnes, Cooper & Robertson (1995), 140 N.S.R.(2d) 220; 399 A.P.R. 220; 125 D.L.R.(4th) 123 (C.A.), refd to. [paras. 32, 63].

R. v. Silveira (A.) (1995), 181 N.R. 161; 81 O.A.C. 161 (S.C.C.), refd to. [para. 49].

M. v. H., [1999] 2 S.C.R. 3; 238 N.R. 179; 121 O.A.C. 1, refd to. [para. 49].

Ocean Port Hotel Ltd. v. Liquor Control and Licensing Branch (B.C.), [2001] 2 S.C.R. 781; 274 N.R. 116; 155 B.C.A.C. 193; 254 W.A.C. 193; 2001 SCC 52, refd to. [para. 49].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1, refd to. [para. 53].

K.M. v. H.M., [1992] 3 S.C.R. 6; 142 N.R. 321; 57 O.A.C. 321, refd to. [para. 53].

Peixeiro v. Haberman, [1997] 3 S.C.R. 549; 217 N.R. 371; 103 O.A.C. 161, refd to. [para. 53].

Pirelli General Cable Works Ltd. v. Oscar Faber & Partners (a firm), [1983] 1 All E.R. 65 (H.L.), refd to. [para. 54].

Sparham-Souter v. Town and Country Developments (Essex) Ltd., [1976] Q.B. 858 (C.A.), refd to. [para. 54].

Desormeau v. Holy Family Hospital, Prince Albert (1989), 76 Sask.R. 241 (C.A.), refd to. [para. 67].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 76].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 76].

Weselak v. Beausejour District Hospital No. 29 (1987), 49 Man.R.(2d) 86 (C.A.), refd to. [para. 81].

Zapfe v. Barnes et al. (2003), 174 O.A.C. 211 (C.A.), refd to. [para. 83].

Associated Siding Applicators Ltd. v. Jonasson (E.S.) Contractors Ltd. (1985), 57 A.R. 136 (Q.B.), refd to. [para. 103].

Montague Building Supplies Ltd. v. MacLeod (1994), 118 Nfld. & P.E.I.R. 299; 369 A.P.R. 299 (P.E.I.T.D.), refd to. [para. 104].

McCready Products Ltd. v. Sherwin-Williams Co. of Canada (1984), 53 A.R. 304 (Q.B.), varied (1985), 61 A.R. 234 (C.A.), refd to. [para. 105].

Nance v. B.C. Electric Railway Co. Ltd., [1951] A.C. 601 (P.C.), refd to. [para. 128].

Bunce v. Flick et al. (1991), 93 Sask.R. 53; 4 W.A.C. 53 (C.A.), refd to. [para. 128].

Statutes Noticed:

Limitation of Actions Act, R.S.S. 1978, c. L-15, sect. 3(1)(f)(i) [para. 10].

Authors and Works Noticed:

Saskatchewan, Department of Justice, Limitations of Actions Act: Consultation Paper, (2000), generally [paras. 24, 31].

Counsel:

David D. Kowalishen, for the appellants;

Robert D. Skinner, for the respondent.

This appeal was heard on September 27, 2006, before Cameron, Vancise and Jackson, JJ.A., of the Saskatchewan Court of Appeal. The judgment of the Court of Appeal was delivered on May 31, 2007, including the following opinions:

Cameron, J.A. (Vancise, J.A., concurring) - see paragraphs 1 to 36;

Jackson, J.A., dissenting - see paragraphs 37 to 131.