Legal Blog

Limitations & Expert Evidence in a Motion

T. Hamilton and Son Roofing Inc. v. Markham (City) 2018 Ont SCJ

A roofing contractor had waited more than 2 years after the contract had been completed before commencing its action for non-payment of $77,000. It argued that the limitation period has been extended because it had expected money to be paid once insurance issues were resolved involving a flood in the building upon which it had been doing its roofing work. The judge held that the time started to run when, after the roofer had issued its final invoice, the owner only provided partial payment. However, the owner ultimately did pay the deficiency holdback of $9,000 at a later date. The judge noted that this payment related to the contract price; it was not a payment of a different or additional contract and the fact that it was made in response to a new invoice for the deficiency holdback was irrelevant. The judge held that this was a partial payment, acting as an acknowledgement of liability and made pursuant to section 13(11) of the Limitations Act, 2002, which re-started the entire limitation period. This matter was dealt with on a summary judgment motion. The owner also defended the motion on the merits; it claimed that the roofing contractor caused the flood. Unfortunately, its only evidence came from its lawyer alluding to, but not even attaching, an expert report. The judge ignored the affidavit. Expert evidence on a motion must be tendered by way of an affidavit from the expert witness.

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