Roxanne D Christian v. Raymond A McCaw, 2015 SKPC 74

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Date: May 4, 2015 2015 SKPC 074 File: SC# 495 of 2014 Location: Saskatoon _____________________________________________________________________________ Between: Roxanne D Christian and Raymond A McCaw - and - Marinel Manzuc, who carried on business as Sunbird Enterprises at the time of the said work; and Diana Klyuchka, who carried on business as GBC Enterprises Ltd. at the time of the said work Selves For the Plaintiff John Rozdilsky For the Defendant _____________________________________________________________________________ FIAT R.D.

JACKSON , J _____________________________________________________________________________ [ 1 ] The within claim was commenced October 29, 2014, alleging negligent workmanship and product provided by the Defendants regarding exterior stuccoing to the Plaintiffs’ residence. The work was carried out between the months June to September, 2008. The Plaintiffs assert at para. 4 of their claim that “. . . the stucco and parging started to crack and fall off in 2009, and when contacted, the Defendant (sic) would not repair it under warranty. It was also found that the stucco used was not acrylic stucco.”

[ 2 ] The Defendants, through counsel, filed a defence dated December 4, 2014 denying the allegations and further pleading ss. 5, 6 and 19 of The Limitations Act , L-16.1, Statutes of Saskatchewan. [ 3 ] The Defendants also pled on behalf of Marinel Manzuc that he was an undischarged bankrupt and therefore protected by s. 69 of The Bankruptcy Act . [ 4 ] The matter came on for case management December 15, 2014 whereby the Plaintiffs and the Defendants appeared in person as well as Mr. John Rozdilsky, counsel on behalf of the Defendants. Given the status of Mr.

Manzuc’s ongoing bankruptcy claim, it was agreed to simply adjourn the current matter sine die . [ 5 ] The Plaintiffs now seek to re-institute proceedings against the Defendants. For the reasons which follow, the Court has determined that the claim cannot be maintained, in any event, by reason that it is statute barred under The Limitations Act . [ 6 ] Sections 5, 6 and 19 of The Limitation Act state: 5 Unless otherwise provided in this Act, no proceedings shall be commenced with respect to a claim after two years from the day on which the claim is discovered. Discovery of claim 6

(1) Unless otherwise provided in this Act and subject to subsection (2), a claim is discovered on the day on which the claimant first knew or in the circumstances ought to have known: (

a) that the injury, loss or damage had occurred; (

b) that the injury, loss or damage appeared to have been caused by or contributed to by

an act or omission that is the subject of the claim; (

c) that the act or omission that is the subject of the claim appeared to be that of the person against whom the claim is made; and (

d) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it.

(2) A claimant is presumed to have known of the matters mentioned in clauses (1)(

a) to (

d) on the day on which the act or omission on which the claim is based took place, unless the contrary is proved. 19 If, after the commencement of a proceeding, it is established that a limitation period applicable to the claim had expired before the commencement of the proceeding, the claim is barred and the proceeding shall not be maintained. [ 7 ] In this action, it is clear from the Plaintiffs’ claim that the alleged stuccoing deficiencies became apparent in 2009. The action however (for personal reasons as stated in para. 8 of the claim) was not commenced until October 29, 2014, roughly five years

later, well beyond the two year limit to do so. [8] Issuing a claim which may be beyond the statutory limitation is always permitted given that the The Limitations Act is adefence to be raised by the Defendant, where applicable, and where they choose to do so. [9] In most cases where the action is defended, no determination on the limitation argument can be made prior to trial since findings of fact are normally required to properly do so and to avoid bifurcation of proceedings[1].

In this case, however, the Plaintiffs intheir own claim acknowledge they were aware of the problem “in 2009” (the specific date is not stated), which clearly is the discoverydate contemplated in s. 6 of the Act (above). [10] Upon a plain reading of s. 19, the date of loss has been established to be in 2009. There being no provisions otherwise in The Limitations Act to extend the limitation period for this type of claim[2] in the words of s. 19 quoted above “. . . the claim is barred and theproceeding shall not be maintained.” [11] The Plaintiffs’ claim is accordingly dismissed. _______________________ R.D.

Jackson, J [1] See SGI v Williams, 2011 SKCA 66 [2] See s. 11 where the Act does permit such extension for, inter alia, the collection of a debt from the date of last payment or date ofwritten acknowledgment of the debt.