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Limitations

Zeppa v. Woodbridge Heating & Air-Conditioning Ltd. 2019 Ont CA

Mechanical contractor installed HVAC system in 2007; problems with the system arose immediately and were ongoing. By 2009, the owners were no longer relying on the contractor to remedy the problems. The action, commenced in 2012, was statute barred under the Limitations Act. It was irrelevant that the owners did not definitively know until 2010 that the problem arose from improper installation. Discovery means reasonable discovery rather than the mere possibility of discovery. The owners had sufficient facts in 2007 (subject to the contractor’s efforts to rectify the problems) to have prima facie grounds to infer that the contractor’s acts or omissions caused or contributed to the problems. The court held that the concept of fraudulent concealment did not apply, even if the contractor knew that its installation was improper, because, for fraudulent concealment to apply, the owners had to be ignorant of the cause of action that arose due to the contractor’s misconduct. In this case, the owners were not ignorant of the cause of action.

Written by Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.