<\/p>\n
It\u2019s not often that the Court of Appeal disagrees on a limitations issues (or at least until recently when there have been a number of dissents in limitations decisions), and it\u2019s especially rare that the Court disagrees about whether there have been errors of fact.\u00a0 That\u2019s what make Zeppa v. Woodbridge Heating & Air-Conditioning Ltd. <\/em><\/a>interesting.\u00a0 Justice Brown, with Justice Strathy concurring, disagreed with Justice Feldman about what facts were necessary for the plaintiff to know that the defendant HVAC installer had caused or contributed to a faulty HVAC system.\u00a0 \u00a0<\/em><\/p>\n The motion judge found that problems with the HVAC system were necessarily the result of the defendants\u2019 act or omissions because the defendant installed it:<\/p>\n It is crystal clear from these reports, as well as Christopher\u2019s Examination, that the Plaintiffs knew long before February 2010 that the HVAC system was not functioning properly. Woodbridge was clearly responsible since they had installed the system<\/u>\u2026<\/p>\n<\/blockquote>\n Justice Brown did not find any error with this reasoning:<\/p>\n [<\/a>46]\u00a0\u00a0 \u00a0\u00a0\u00a0Unlike my colleague, I see no error in the factual findings that would justify appellate intervention. The motion judge did not misapprehend the evidence. His findings were solidly grounded in the record before him. Accordingly, I would not give effect to this ground of appeal.<\/p><\/blockquote>\n However, Justice Feldman didn\u2019t agree that it necessarily followed from the fact of the HVAC problems that the defendant had caused or contributed to them:<\/p>\n [<\/a>92]\u00a0\u00a0 \u00a0\u00a0\u00a0The motion judge found, at para. 33, that \u201cit was not necessary for Christopher to have knowledge of the fact that the Quietside boilers were installed improperly in order for the limitation period to commence running. What was needed was knowledge, actual or imputed, that he had a \u201cclaim\u201d against Woodbridge.\u201d This was a legal error.<\/p>\n [<\/a>93]\u00a0\u00a0 \u00a0\u00a0\u00a0In the circumstances of this case, knowledge of the improper installation was an essential element of discoverability of the appellants\u2019 claims for negligence and breach of contract.<\/p>\n [<\/a>95]\u00a0\u00a0 \u00a0\u00a0\u00a0Until Woodbridge\u2019s improper installation was revealed, the Zeppas knew that the system had many problems, but they did not know that the problems were caused by the act of improper installation by the respondent. They did not know of any act or omission by Woodbridge or the day it occurred.<\/p>\n [<\/a>96]\u00a0\u00a0 \u00a0\u00a0\u00a0In fact, when the Zeppas first came to Woodbridge with complaints, Woodbridge informed them that the problems with the system were due to lack of maintenance. There were no problems with the HVAC system itself and no suggestion that the problem was caused by improper installation. On the basis of Woodbridge\u2019s assurances, the Zeppas entered into a two-year maintenance agreement. This cost them approximately $4600.<\/p>\n [<\/a>97]\u00a0\u00a0 \u00a0\u00a0\u00a0However, Woodbridge knew that maintenance would never fix the HVAC system. Woodbridge concealed the fact that its faulty installation of the boilers was the central cause of the Zeppas\u2019 problems. Until Quietside revealed that fact to the Zeppas, Woodbridge\u2019s fraudulent concealment prevented the Zeppas from knowing whom to hold responsible for the damage to their family home and why.<\/p>\n [<\/a>99]\u00a0\u00a0 \u00a0\u00a0\u00a0If the action had been pleaded as a breach of an implied warranty, or if Woodbridge had provided an explicit warranty, the Zeppas\u2019 knowledge that the HVAC system was not working properly may have been sufficient to trigger the running of the limitation period. But that is not the claim here.<\/p>\n [<\/a>100]\u00a0\u00a0\u00a0Problems that can be resolved through maintenance are not necessarily caused by the acts or omissions of the installer. The motion judge\u2019s finding that the Zeppas\u2019 problems were clearly caused by Woodbridge\u2019s acts or omissions was not based on any evidence other than the fact that there were ongoing problems with the HVAC system. He treated the cause of action as if it were for breach of warranty and not for negligence or breach of contract in the installation of the system.<\/p>\n [<\/a>101]\u00a0\u00a0\u00a0Mr. Zeppa first contacted Quietside because he had heard that its boilers were terrible and that was why Quietside was no longer operating in Canada, i.e. the boilers had a possible manufacturing defect or were inherently faulty. When he asked the manufacturer for assistance, Quietside responded to his inquiries with the letter that revealed Woodbridge\u2019s faulty installation of the boilers and Woodbridge\u2019s knowledge that its faulty installation was the cause of the problems.<\/p>\n [<\/a>103]\u00a0\u00a0\u00a0Mr. Zeppa\u2019s evidence demonstrates why knowledge that the HVAC system was not working properly was not enough to trigger the basic limitation period. In the face of Woodbridge\u2019s assurances, Mr. Zeppa reasonably suspected that the boiler manufacturer may have been responsible for the HVAC problems. Woodbridge\u2019s false assurances continued until late 2010.<\/p>\n<\/blockquote>\n I find Justice Feldman\u2019s reasoning significantly more persuasive.\u00a0 It\u2019s not evident to me why the court considered it \u201ccrystal clear\u201d that if the HVAC wasn\u2019t working it was the installer\u2019s fault.\u00a0 Knowledge that the installation was faulty is not \u201cthe how it happened\u201d that Justice Brown refers to (at para. 43) of his reasons, but prima facie <\/em>knowledge of actionable conduct.\u00a0 In the absence of prima facie <\/em>knowledge that defendant at contributed to the loss, I don\u2019t see how the plaintiff could have discovered the claim.\u00a0 Perhaps there\u2019s something in the record that explains this, but not on the face of the decision.<\/p>\n Two other aspects of the decision are noteworthy.<\/p>\n First, it reiterates that the principle of fraudulent concealment is not a consideration in a s. 5 analysis, a point on which the majority and the dissent agree.\u00a0 This is because s. 5 achieves the same result:<\/p>\n [<\/a>71]\u00a0\u00a0 \u00a0\u00a0\u00a0The decisions in\u00a0Dhaliwal<\/em>\u00a0and\u00a0Kim<\/em>, together with the plain language of ss. 4 and 5 of the\u00a0Act<\/em>, support the conclusion that there is no independent work for the principle of fraudulent concealment to perform in assessing whether a plaintiff has commenced a proceeding within the basic two-year limitation period. That is because the elements of the discoverability test set out in ss. 5(1)(a) and (b) address the situation where a defendant has concealed its wrong-doing. If a defendant conceals that an injury has occurred, or was caused by or contributed to by its act or omission, or that a proceeding would be an appropriate means to seek to remedy it, then it will be difficult for the defendant to argue that the plaintiff had actual knowledge of those facts until the concealed facts are revealed. Whether the plaintiff ought to have known of those matters, given their concealment, is a matter for inquiry under s. 5(1)(b).<\/p>\n [<\/a>72]\u00a0\u00a0 \u00a0\u00a0\u00a0If the defendant\u2019s concealment of facts results in a lack of actual or objective knowledge by the plaintiff of the elements set out in s. 5(1)(a) of the\u00a0Act<\/em>, then the plaintiff does not discover his or her claim until the date the concealed facts are revealed to or known by the plaintiff, at which point time begins to run. That is to say, the analysis required by s. 5(1) of the\u00a0Act<\/em>\u00a0captures the effect of a defendant\u2019s concealment of facts material to the discovery of a claim.<\/p>\n<\/blockquote>\n Also note that this is now the leading description of the principle, as demonstrated by the Court\u2019s reference to it in Endean<\/em><\/a>.<\/p>\n Second, it contains a disappointing reference to Lawless<\/em>:<\/p>\n [<\/a>42]\u00a0\u00a0 \u00a0\u00a0\u00a0As this court observed in\u00a0Lawless<\/em>, at para. 23, the question to be posed in determining whether a person has discovered a claim is whether the prospective plaintiff knows enough facts on which to base a legal allegation against the defendant. In support of that proposition,\u00a0Lawless<\/em>\u00a0cited the decision of this court in\u00a0McSween v. Louis<\/em>\u00a0(2000),\u00a02000 CanLII 5744 (ON CA)<\/a>,\u00a0132 O.R. (3d) 304 (C.A.)<\/span><\/span>, where Feldman J.A., writing for the majority, stated, at para. 51:<\/p>\n<\/blockquote>\n The question to be posed when assessing discovery is when the plaintiff had knowledge of the discovery matters, not knowledge of the facts necessary for a legal allegation (which is the question required by common law discovery).\u00a0 Nevertheless, the Court\u2019s point regarding the amount of knowledge necessary to satisfy the discovery matters\u2014prime facie<\/em> knowledge\u2014remains valid without reverting to common law discovery principles to describe discovery under s. 5.<\/p>\n","protected":false},"excerpt":{"rendered":" It\u2019s not often that the Court of Appeal disagrees on a limitations issues (or at least until recently when there have been a number of dissents in limitations decisions), and it\u2019s especially rare that the Court disagrees about whether there have been errors of fact.\u00a0 That\u2019s what make Zeppa v. Woodbridge Heating & Air-Conditioning … Continue reading Ontario: Court of Appeal continues to disagree about limitations analyses (and clarifies that fraudulent concealment doesn’t apply to s. 5)<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[4],"tags":[238,9,50,43,406,546],"class_list":["post-917","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-blog-pedantry","tag-discovery","tag-fraudulent-concealment","tag-ontario-court-of-appeal","tag-prima-facie-knowledge","tag-quality-dissents"],"_links":{"self":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/917","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=917"}],"version-history":[{"count":2,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/917\/revisions"}],"predecessor-version":[{"id":919,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/917\/revisions\/919"}],"wp:attachment":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=917"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=917"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=917"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}\n
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