In Lewis v. Weismiller Lumber Limited, 2013 ONSC 2400, the Ontario Superior Court of Justice set out the application of the discoverability provisions contained in section 5 of the Limitations Act, 2002. In Lewis, the Court dismissed, on summary judgment, the plaintiff’s action for the tort of negligent misrepresentation and breach of contract against a retailer of pine roof products as such claims were out of time. The court held that in a tort action, the cause of action arises when all of the elements of wrong exist. The cause of action accrues at the time of injury is suffered, not at the time of the culpable conduct. In a claim for a breach of contract, the limitation period begins to run on the date of the breach of contract.
A cause of action arises for the purposes of a limitation period when the material facts on which it is based have been discovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence (see, for example,Central Trust Co. v. Rafuse, 1986 2 S.C.R. 147 at para. 77). Under section 4 of the Act, a limitation period begins to run once a claim is discovered and generally runs for two years thereafter. Section 5 provides that a claim is discovered on the earlier of the date (i) the plaintiff knew there was a claim (based on the factors enumerated in section 5(1)(a)) or (ii) when a reasonable person with the abilities and in the circumstances of the plaintiff first ought to have known there was a claim.
In Lewis, the plaintiff hired a contractor to build a cottage on her Bala area island in 1997. The plaintiff and the contractor met at a trade show where the plaintiff was introduced to a pine shingle product being promoted by Pine Roof Canada. Pine Roof Canada informed the plaintiff of a 50 year guarantee on the pine roof product. The plaintiff was in possession of a marketing brochure produced by Pine Roof Canada which expressed the 50 year guarantee. The plaintiff then purchased the product from Weismiller Lumber. The sales person at Weismiller Lumber also informed the plaintiff of the existence of a 50 year warranty, but did not say who was offering the warranty nor did the sales person express whether the warranty was in writing. The Court concluded that the sales person did not say it was a Weismiller warranty or guarantee.
The pine roof was installed on the plaintiff’s home in 1997. On June 14, 2005, the home was damaged by hail. On October 10, 2005, another contractor who was retained by the plaintiff to repair the damaged roof expressed to the plaintiff that the pine roof product was the “poorest grade of shake shingle” the contractor had ever seen and advised that the entire roof be replaced as it was only a matter of time before the non-damaged portion of the roof suffer the same fate. On November 15, 2005, the plaintiff’s husband asked the roofing contractor for an additional quotation to replace the second side of the roof. On February 23, 2006, the plaintiff’s husband wrote to Weismiller claiming against it on the warranty it had provided upon purchase (it appears that Pine Roof Canada was insolvent).
The plaintiff did not issue her statement of claim until March 3, 2008 but the Court found that by November 15, 2005, at the latest, the plaintiff knew (a) the quality of the 1997 shingles was substandard, they had deteriorated badly and the entire roof needed to be replaced; (b) the problem was entirely with the roofing product and believed Weismiller was liable due to a Weismiller 50 year warranty; (c) the roof would not last 50 years; and (d) knew who to sue.
The issuance of the statement of claim on March 3, 2008 was well beyond the 2 year limitation period set out in section 4 of the Act which began to run no later than November 15, 2005, the date the Court found that the plaintiff discovered her claim. In the alternative, the Court also found that there was no genuine issue requiring trial as there was no evidence that Weismiller provided a guarantee that it would replace the plaintiff’s roof without limitation, or at all, over the 50 year period.