



COURT OF APPEAL FOR ONTARIO

CITATION:
Kowal v. Shyiak, 2012
    ONCA 512

DATE: 20120725

DOCKET: C54684

Rouleau, Watt and Pepall JJ.A.

BETWEEN

Henry Kowal and Julia Ciddio

Plaintiffs (Respondents)

and

Jerry Shyiak and Giant Builders (Thunder Bay)
    Inc.

Defendants (Appellants)

and

Ronald Bingham and
    Overall Plastering

Third Parties

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

Heard: June 28, 2012

On appeal from the order of Justice Shaw of the Superior
    Court of Justice, dated October 25, 2011.

Pepall J.A.:

[1]

The appellants, Giant Builders (Thunder Bay) Inc. and its
    principal, Jerry Shytiak, appeal the October 25, 2011 decision of Shaw J. in
    which he dismissed their summary judgment motion and determined that the claim
    of the respondents, Henry Kowal and Julia Ciddio, was not barred by the two
    year limitation period prescribed by s. 4 of the
Limitations Act, S.O.
2002,

c. 24, Sch. B.

[2]

The appellants constructed
    the respondents new house. The respondents contracted separately with the third
    parties, Overall Plastering and its principal, Ronald Bingham, to install
    stucco finishing on the exterior of the home. The respondents took possession of
    their newly constructed home on December 28, 2005.

[3]

In the spring of 2006,
    the respondents observed water leakage around certain windows and doors and
    damage to their floors. By the fall of 2006, the house was leaking in four
    locations.

[4]

To address the leakages,
    the respondents and the appellants met. On one occasion, the appellant Shyiaks
    son attended at the home and suggested that the leaks could have been caused by
    the third parties. The appellants did some caulking and installed some flashing
    and, according to the respondent Kowal, the appellant Shyiak indicated that he
    was going to fix the problem.

[5]

He did not. Ultimately, in
    a telephone conversation on August 31, 2007, the appellant Shytiak told the
    respondent Kowal, among other things, to fix the flooring himself to which the
    latter responded, See you in court. The respondent Kowal acknowledged that he
    knew that the situation would not be rectified by Giant Builders at that point and
    that he would have to resolve the problem through his lawyer by way of a claim
    under the new home warranty (under the
Ontario New Home
    Warranties Plan Act
, R.S.O. 1990, c.
    O.31) and/or a court action.

[6]

On November 1, 2007, the
    respondent Kowal wrote to the appellants and copied the third parties. He
    indicated that he felt that the ongoing problems at their residence were the
    result of Giant Builders insufficient supervision of the work as well as not
    responding to my request to correct the deficiencies and he requested a
    planned repair schedule. In the letter, he also reported on a conversation he
    had had with the third party Bingham and stated that Bingham had indicated that
    he would be working with the appellants.

[7]

Having received no
    response to his letter, the respondent Kowal wrote again on January 7, 2008,
    but still received no answer. He retained counsel on February 11, 2008.

[8]

On February 21, 2008,
    counsel for the respondents wrote to the appellants advising that Giant
    Builders had until June 1, 2008 to rectify the leaking problems failing which
    the plaintiffs would make a claim under the new home warranty and commence
    civil proceedings in the Superior Court of Justice.

[9]

The respondents retained
    Walter Kembel, a professional engineer, to examine the house.  He concluded in
    a report dated August 20, 2008, that Giant Builders had been negligent and, among
    other things, had failed to construct a rain tight exterior envelope for the
    house.

[10]

Tarion Warranty Corporation
    also arranged for an inspection of the home.  The engineer who inspected the
    home concluded in his October 28, 2008 report, which was given to the
    respondents, that the problems arose from work done by the third parties.

[11]

In 2009, the respondents
    retained another professional engineer, Gord Wickham. He provided them with a
    report dated October 22, 2009 in which he blamed the leaks on the work of Giant
    Builders.

[12]

The respondents commenced
    their action against the appellants on November 17, 2009. They asserted a claim
    for damages in the estimated amount of $95,068 to $115,538 for breach of
    contract, breach of statutory warranty and negligence. Among other things, they
    pleaded that although they paid Overall Plastering directly, its work was
    completed under the direction and co-ordination of Giant Builders.

[13]

In their statement of
    defence, the appellants pleaded the expiry of the two year limitation period.
    They also issued a third party claim against Overall Plastering and Ronald
    Bingham and brought a motion for summary judgment.

[14]

The motions judge
    dismissed the summary judgment motion on the basis that the action was
    commenced within the limitation period. He determined that as of the See you
    in court August 31, 2007 telephone conversation or the November 1, 2007
    letter, the respondents did not have sufficient knowledge as to whether the
    fault was reasonably that of the appellants or that of the third parties. The
    most a reasonably prudent person in the position of the respondents could say
    was that he or she had a claim against Giant Builders or the Overall Plastering
    but could not be sure which one was the tortfeasor. The respondents knew they
    had suffered damages, but did not know which of the two tortfeasors was
    responsible.

[15]

The appellants submit
    that the motions judge erred and, in particular, with respect to his finding
    that the respondents must or should know with some certainty which of the two
    potential tortfeasors was responsible for their loss before the commencement of
    the limitation period is triggered.

[16]

The respondents submit
    that the
Act
requires that damage be caused by or contributed to
    by an act or omission and that the act or omission be that of the person
    against whom the claim is made. The motions judge properly determined that the respondents
    did not know whether Giant Builders or Overall Plastering was responsible until
    the receipt of expert opinions.

[17]

The relevant sections of
    the Act are as follows:

4.       Unless this Act
    provides otherwise, a proceeding shall not be commenced in respect of a claim
    after the second anniversary of the day on which the claim was discovered.

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).

(2)     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 or omission on which the claim is based took place,
    unless the contrary is proved.

[18]

Certainty of a defendants responsibility for the act or
    omission that caused or contributed to the loss is not a requirement.  It is
    enough to have
prima facie
grounds to infer that the acts or omissions
    were caused by the party or parties identified:
Gaudet et al. v. Levy et
    al.
(1984), 47 O.R. (2d) 577 (H.C.). Expert opinions are not required in
    all cases:
McSween v. Louis
(2000), 187 D.L.R. (4
th
) 446
    (Ont. C.A.); and
Lawless v. Anderson
,
2011 ONCA 102, at para. 28.

[19]

By
    August 31, 2007, and certainly by November 1, 2007, the respondents 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 they had suffered a loss and that the acts or
    omissions were caused by either the appellants, or the third parties, or both.
    This was confirmed by the motions judge. There was ample evidence on which to
    base a claim against the appellants without the necessity of obtaining any
    expert opinions.  In our view, the motions judge erred in concluding that the
    respondents needed to obtain expert opinions before determining that they had a
    cause of action against the appellants. Indeed, cumulatively, the three reports
    were inconclusive.  In any event, an element of the claim is that, as a general
    contractor, Giant Builders had a duty to oversee the third partys work and
    Giant Builders is alleged to have breached that duty.  No expert report was
    required in order to advance this claim.

[20]

Although
    the respondents circumstances are unfortunate, the
Act

was not enacted to be ignored. The respondents
    action against the appellants was only commenced on November 17, 2009. It was
    therefore too late and is barred by s. 4 of the Act.

[21]

The
    appeal is allowed. As agreed by the parties, the respondents shall pay the
    appellants costs fixed in the amount of $7000 inclusive of disbursements and
    all applicable taxes.

Released: July 25, 2012 DW

S.E.
    Pepall J.A.

I
    agree Paul Rouleau J.A.

I
    agree David Watt J.A.


