Currie v. Foster, 2017 BCSC 2115

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Currie v. Foster, 2017 BCSC 2115 Date: 20171121 Docket: 51067 Registry: Kamloops Between: Dale Malcolm Currie Plaintiff And Rayjonathan Wendal Adrian Foster and Shawna Jolene Foster Defendants And Randy Dillman, dba Randy Dillman Contracting, a Sole Proprietorship Third Party Before: The Honourable Madam Justice Hyslop Reasons for Judgment Counsel for the Plaintiff: K. Schymon Counsel for the Defendants: C. Manning No one appeared on behalf of the Third Party Place and Date of Hearing: Kamloops, B.C.

September 30, 2016 and October 17, 2017 Place and Date of Judgment: Kamloops, B.C. November 21, 2017 INTRODUCTION [ 1 ] The defendants, Rayjonathan Wendal Adrian Foster and Shawna Jolene Foster, seek the dismissal of the plaintiff’s claim against them, as statute barred. The defendants argue that this discrete issue is suitable for a

summary trial. The plaintiff, Dale Malcolm Currie, opposes the disposition of his claim by

summary trial. The plaintiff states that an unidentified neighbour can provide evidence that the defendants “were aware of a situation with the irrigation system and the water problem.” Further, the plaintiff submits that the people who provided estimates and made repairs to the house would give evidence at trial as to the cause of the sinking, as well as cracking of the front area of the house. Moreover, they would provide evidence regarding the cracking of the garage floor. [ 2 ] I heard this application on September 30, 2016.

During the hearing, plaintiff’s counsel stated that the Notice of Civil Claim would be amended and argued as if it was amended. No draft of the Amended Notice of Civil Claim (“Amended Notice”) was presented to the Court. After the application was heard, I realized it was necessary for the plaintiff to amend their Notice of Civil Claim. I directed that the plaintiff amend its Notice of Civil Claim. The plaintiff did so. [ 3 ] A request for

summary trial is made pursuant to Rule 9-7 of the Supreme Court Civil Rules , B.C. Reg. 168/2009 [ Civil Rules ]. Rules 9-7(2) and (15) must be considered when determining whether an action can be heard by

summary trial: Application (2)A party may apply to the court for judgment under this rule, either on an issue or generally, in any of the following: (

a) an action in which a response to civil claim has been filed; (

b) a proceeding that has been transferred to the trial list under Rule 22-1 (7) (d); (

c) a third party proceeding in which a response to third party notice has been filed;

(

d) an action by way of counterclaim in which a response to counterclaim has been filed. … Judgment (15)On the hearing of a

summary trial application, the court may (

a) grant judgment in favour of any party, either on an issue or generally, unless (

i) the court is unable, on the whole of the evidence before the court on the application, to find the facts necessary to decide the issues offact or law, or (ii) the court is of the opinion that it would be unjust to decide the issues on the application, (

b) impose terms respecting enforcement of the judgment, including a stay of execution, and (

c) award costs. [4] The test is laid out in Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. (1989), (BC CA), 36B.C.L.R. (2d) 202, [1989] B.C.J. No. 1003. At that time, the Rule was Rule 18A. Chief Justice McEachern, as he then was, wrote: [53] The test for Rule 18A [now Rule 9-7], in my view, is the same as on a trial. Upon the facts being found the chamber judge mustapply the law and all appropriate legal principles.

If then satisfied that the claim or defence has been established according to theappropriate onus of proof he must give judgment according to law unless he has the opinion that it will be unjust to give such judgment. [54] In deciding whether the case is an appropriate one for judgment under Rule 18A the chambers judge will always give fullconsideration to all of the evidence which counsel place before him but he will also consider whether the evidence is sufficient foradjudication.

For example, the absence of an affidavit from a principal player in the piece, unless its absence is adequately explained,may cause the judge to conclude either that he cannot find the facts necessary to decide the issues, or that it would be unjust to do, so.But even then, as the process is adversarial, the judge may be able fairly and justly to find the facts necessary to decide the issue. [55] Lastly, I do not agree, as suggested in Royal Bank v. Stonehocker supra, that a chambers judge is obliged to remit a case to thetrial list just because there are conflicting affidavits.

In this connection I prefer the view expressed by Taggart J.A. in Placer, quotedsupra, at p. 15 of these Reasons. Subject to what I am about to say, a judge should not decide an issue of fact or law solely on the basis ofconflicting affidavits even if he prefers one version to the other. It may be however, notwithstanding sworn affidavit evidence to thecontrary, that other admissible evidence will make it possible to find the facts necessary for judgment to be given.

For example in anaction on a cheque, the alleged maker might by affidavit deny his signature while other believable evidence may satisfy the court that hedid indeed sign it. Again, the variety of different kinds of cases which will arise is unlimited. In such cases, absent other circumstances ordefences, judgment should be given. [5] The evidence of the unidentified neighbour, as well as the workmen who provided a quote and repaired the front of the house isadmissible, but for a limited purpose: Calder v. King (1994), (BC SC), 91 B.C.L.R. (2d) 336.

The plaintiff states thisdemonstrates that this action should be transferred to the trial list and heard viva voce. I do not agree. [6] This

summary trial is not to adjudicate upon the merits of this action. Rather, it is brought to determine whether the plaintiff’saction is statute barred. None of the evidence referred to in para. 5 of these reasons goes to whether this action is statute barred, butrather the merits of the plaintiff’s claim. [7] In determining whether a case is suitable for

summary trial, the court must be able, on all of the evidence, to find factsnecessary to decide the issues of facts and law. The court must be of the opinion that it would be just to decide the issue, or issues, on theapplication: Dahl v. Royal Bank of Canada, 2005 BCSC 1263 at para. 20. [8] The evidence proffered by both the plaintiff and the defendants is not controversial. Most of the dates when certain eventshappened are not in dispute. It is the application of the law to these events which determines the outcome of this application. [9] I find that this proceeding is suitable to be heard by

summary trial. [10] The Notice of Civil Claim (“Notice”) was issued on January 27, 2015. The Amended Notice of Civil Claim (“AmendedNotice”) is reproduced as follows:

Part 1: STATEMENT OF FACTS 1. The Plaintiff Dale Malcolm Currie is a businessman and resides at 3023 Birkenhead Drive, in the City of Kamloops, Province ofBritish Columbia. 2. The Defendant Rayjonathan Wendell Adrian Foster whose occupation is unknown, has a known work address at 11802— 97Avenue, in the City of Grande Prairie, in the Province of Alberta. 3. The Defendant Shawna Jolene Foster whose occupation is unknown, believed to be the spouse of the Defendant RayjonathanWendell Adrian Foster and resides in the City of Grande Prairie, in the Province of Alberta. 4.

The Plaintiff purchased a home located at 3023 Birkenhead Drive, Kamloops (hereinafter the “Home”) in or about January 2012.On or about November 24, 2011 the Plaintiff entered into a contract with the Defendants for the purchase of the property located at 3023Birkenhead Drive, Kamloops BC (hereinafter the “Home”).

5. On or about the fall of 2012 the Plaintiff discovered that the soil in front of the front door and under the driveway was eroding. This erosion was causing damage to the driveway as well as to the walkway leading to the entrance of the Home. This damage was further causing entering the Home and driveway to be dangerous . Part of the Contract for Purchase and Sale included and incorporated a Property Disclosure Statement (hereinafter the “statement”) completed by the Defendants and dated April 24, 2011.

This Statement was seen by the Plaintiff prior to entering into the contract and the Plaintiff relied upon the information in the Statement when deciding to enter into a contract to purchase the Home. 6. The Plaintiff subsequently hired workmen to repair the problem. While the repairs were being conducted, the workmen discovered the cause of the problem was the underground pipes for the water system were not properly installed which resulted in a constant leak which lead to the soil erosion.

Included in that Statement was a question concerning whether or not the Defendants were aware of any problems with the water system to which they indicated “No”. 7. The Plaintiff was advised and verily believes that the Defendant knew or ought to have known that the water system was not properly installed. The Plaintiff inquired with the Defendants via his realtor prior to entering into the contract regarding stained tile in the media room and was informed by the Defendants that this was from an old water leak that had been fixed. 8.

The Plaintiff contacted his insurer who informed him that the repairs were not covered under his Insurance Policy . The Plaintiff also inquired, prior to purchasing the Home, about cracks in the walkway and was informed that this was due to settling. 9. The Plaintiff obtained a house inspection prior to purchasing the Home which did not disclose any issue with water leakage . However this inspection was performed in the winter when the ground was frozen. 10. The Plaintiff purchased the Home on or about January 2012. 11. The Plaintiff moved into the Home on or about the spring of 2012 . 12.

On or about the spring of 2012 the Plaintiff noticed that the Allan Block Wall was sagging further and proceeded to retain workmen to correct the problem. At that time, the Plaintiff was led to believe that the problem may have been caused by an issue with the irrigation system . 13. On or about the fall of 2012 the Plaintiff discovered that the soil in front of the front door and under the driveway was eroding. This erosion was causing damage to the driveway as well as to the walkway leading to the entrance of the Home and was the cause of the crack in the walkway of which the Defendants were aware.

This damage was further causing entering the Home and driveway to be dangerous . 14. The area that was eroded had to be excavated and once the excavation was completed in or around the beginning of January, the true cause of the erosion was ascertained. This cause was that the water system which removed water from the gutters via a drainage pipe underground was not connected which resulted in a constant or near constant leak which led to the soil erosion . 15. The Plaintiff was advised and verily believes that the Defendants knew or ought to have know that the water system was not properly installed .

Part 2: RELIEF SOUGHT 1. Reimbursement for the cost of repairs to the home; 2. Pre and Post-Judgment interest; 3. Costs; 4. Such further and other relief as this Honourable Court may seem just. [ 11 ] The Response to Civil Claim (“Response”) was filed on May 21, 2015. It has not been amended. It admits the facts in paragraphs 2, 3 and 4; denies paragraphs 6 and 7, and states the defendants have no knowledge of paragraphs 1, 5 and 8 of

Part 1 of the Notice. In the Response, the defendants set out their version of the facts and deny causes of action not pled by the plaintiff. [ 12 ] The defendants joined the third party, Randy Dillman, pleading he is responsible for the problems encountered by the plaintiff, not them. Randy Dillman built the house. Randy Dillman did not appear at this application, though he is represented by counsel. [ 13 ] The plaintiff acknowledged that, if I accept all of the arguments made on behalf of the defendants and the claim is statute barred, then an amendment cannot revive a statute barred claim.

FACTS [ 14 ] The defendants were the owners of a residence located at 3023 Birkenhead Drive in Kamloops, British Columbia (“Birkenhead”). The plaintiff and the defendants entered into a Contract of Purchase and Sale of Birkenhead on November 28, 2011, subject to certain conditions. The conditions were removed on December 6, 2011. The transfer of Birkenhead to the plaintiff was completed in January 2012. On January 16, 2012, the defendants moved from Birkenhead to Grand Prairie, Alberta.

The plaintiff took possession of Birkenhead on January 23, 2012. [ 15 ] The plaintiff in its Amended Notice pleads he entered into a contract with the defendants dated November 24, 2011. He alleges part of the contract included a property disclosure statement completed by the defendants and dated April 24, 2011. The plaintiff alleged that it relied on the disclosure statement, in particular:

2. SERVICES … B. Are you aware of any problems with the water system? NO [ 16 ] Though not pled in the plaintiff’s Amended Notice, the plaintiff, in his submissions relies on another clause in the property disclosure statement which states: L. Are you aware of any damage due to wind, fire or water? NO [ 17 ] In his pleadings, the plaintiff alleges he inquired through the defendants’ realtor prior to entering the contract regarding a stained tile in the media room and was told that it was from an old leak that was fixed.

The plaintiff alleges further he also inquired, prior to purchasing the home, as to the cracks in the walkway and was told that it was due to settling. [ 18 ] Ms. Foster swore in her Affidavit: 7. Dale Currie then obtained a home inspection, the conditions on the sale were removed, and the sold sign went up on or around December 6, 2011. [ 19 ] There is no evidence before me that suggests there was any evidence of soil erosion prior to the time Birkenhead was inspected by the home inspector or observed by the plaintiff prior to entering into the Contract of Purchase of Sale, or shortly thereafter.

Soil erosion was first observed by the plaintiff in the fall of 2012. [ 20 ] The plaintiff’s Affidavit sworn on September 21, 2016 is a little confusing. On close reading of it, together with the Amended Notice, it appears the plaintiff complains of two areas of Birkenhead that were damaged by water. The plaintiff states he initially found that erosion was causing damage to Birkenhead’s driveway. This is found in his Affidavit, where he swears: 4. In the fall of 2012, I discovered that the soil in front of my front door under the driveway was eroding. 5.

I at first thought it was as a result of issues of the retaining wall and investigated that. … 7. I hired workman to repair the problem in May 2012. 8. While a workman was excavating to conduct the repairs he discovered that the cause of the problem was that the underground pipes for the water system was not properly installed which resulted in a constant leak after the irrigation was turned on which then lead to the soil erosion. … [ 21 ] However, in the plaintiff’s amended Application Response he describes the chronology of events as to the discovery of the damages to Birkenhead in paragraphs 4 through 11: 4.

In approximately April of 2012 the Plaintiff first noticed some sinking and cracking around the ground level of the property. 5. When the Plaintiff purchased the property, the irrigation system was turned off given that the property was purchased in winter. 6. In the spring and summer of 2012, the Plaintiff turned on the irrigation system that to the Plaintiff’s knowledge, was properly working as warranted by the Defendants. 7. In the spring of 2012, the Plaintiff discovered that the soil in front of the front door and under the driveway was eroding. 8.

On or about April of 2012, the Plaintiff hired EHD Consulting Ltd. to ascertain the cause of the damage and how to correct the damage. 9. Once workmen were hired to correct the damage, it was discovered that the irrigation system was not properly connected which caused continual leaking which thereby caused the erosion. 10. There was no way for the Plaintiff to ascertain the cause of the damage prior to excavating the area. 11.

The actual discovery of the cause of the soil erosion did not occur until the area was thoroughly excavated in the fall of 2012. [ 22 ] These two areas of damage to Birkenhead and their alleged causes are described in paragraphs 12, 13 and 14 of the Amended Notice reads as follows: 12. On or about the spring of 2012 the Plaintiff noticed that the Allan Block Wall was sagging further and proceeded to retain workmen to correct the problem. At that time, the Plaintiff was led to believe that the problem may have been caused by an issue with the irrigation system . 13.

On or about the fall of 2012 the Plaintiff discovered that the soil in front of the front door and under the driveway was eroding. This erosion was causing damage to the driveway as well as to the walkway leading to the entrance of the Home and was the cause of the crack in the walkway of which the Defendants were aware. This damage was further causing entering the Home and driveway to be dangerous . 14. The area that was eroded had to be excavated and once the excavation was completed in or around the beginning of January, the

true cause of the erosion was ascertained. This cause was that the water system which removed water from the gutters via a drainage pipe underground was not connected which resulted in a constant or near constant leak which led to the soil erosion. [ 23 ] The plaintiff made a claim for the repair of the damages to Birkenhead to the National Home Warranty plan. This claim was received by it on June 12, 2012. The claim was denied. In doing so, the National Home Warranty stated in a letter dated June 25, 2012: National Home Warranty’s assessment of your claim has resulted in the following determinations.

As per the terms and conditions of the Warranty Policy, the items listed below do not represent warrantable defects. These items have been reported after the applicable One Year Warranty Coverage expiry date of January 1, 2009 . National Home Warranty is required to be notified in writing of issues prior to the applicable warranty expiry date(

s) for coverage to be in effect. Therefore, these items do not qualify for repairs and no further actions are required. Item 1: Front walkway sinking and cracking, front area of house by front door down 2” Item 2: Major crack in garage floor. Item 3: Soffit is cracked. These items may have been covered under One Year Warranty. As noted above, this coverage has expired. [ 24 ] On June 15, 2012, the plaintiff hired the Fireplace Gallery to determine whether the source of the water leak related to the municipal main waterline at the curb serving Birkenhead. No leak was detected.

In the description of the work performed, these words appear: …Source of settling of concrete at front of house unknown at this time. May require more investigation. [ 25 ] The plaintiff made a claim to Intact Insurance with whom he has a homeowner insurance policy. The claim was reported on August 30, 2012. A representative of Intact Insurance confirmed in its letter of September 10, 2012 previous conversations and the attendance at Birkenhead on September 5, 2012. Intact Insurance wrote to the plaintiff: …We are unable to pay any claim related to your settlement based on the following exclusions: ..

We do not insure loss or damage; 14. caused by settling, expansion, contraction, moving buckling, bulging, or cracking… 20. the cost of making good faulty material or workmanship [ 26 ] The plaintiff states that in or about April 2012, he hired EHD Consulting Ltd. (“EHD”) to determine the cause of damage to Birkenhead and how to correct the damage. The plaintiff received an engineer’s report dated November 1, 2012 from EHD Consulting Ltd. (“EHD report”).

The engineer who authored the EHD report, Ian Chadwick, inspected Birkenhead on October 4, 2012. [ 27 ] In an email dated April 30, 2013 from plaintiff’s counsel, directed to the defendant, Shawna Foster, it stated: Good morning Shawna, I am Mr. Currie’s solicitor. Shortly after Mr. Currie purchased the residence, he discovered significant problems with the foundation. Apparently the ground under the foundation is unstable. This has caused the foundation to sink and crack, requiring extensive repair work. Mr. Currie’s home insurer is Intact.

Intact has taken the position that your home insurer ought to be involved in compensating the claim. I understand Intact has taken this position because the sinking of the foundation was noticeable before Mr. Currie purchased the home. At this time, Mr. Currie simply wants your home insurer to speak with Intact. As a courtesy to Intact, we have agreed to contact you and try to get contact information for your insurer. We believe that at this time it is best to wait while the home insurers argue about which of them is liable.

Would you please provide the name and contact information of your insurance broker in Kamloops, through whom you would have purchased your home insurance? We believe it is in the best interest of all involved for the insurers to make contact. Alternatively, please contact [your] insurance broker, let him know the situation, and ask him to have the home insurer respond directly to Mr. Currie’s home insurer, Bruce Devente, Western Division Claims Representative, at 250-579-5014. [ 28 ] Upon receiving this email and on April 30, 2013, Ms.

Foster contacted legal counsel, who is not the same counsel who has brought this application. THE EHD REPORT [ 29 ] The EHD report opens as follows: It was reported to EHD that you had engaged a contractor to rebuild the Allen block wall in front of the house, having yourself noticed settlement to the front concrete slabs on grade, including the concrete access footpath, stairs and porch slabs. During the contractor’s excavation behind the wall, it was reported that the compacted subsoil was wet and that the irrigation system had been leaking.

The contractor advised that the wet subsoil would cause settlement of the slabs on grade. The leaking irrigation system components have

subsequently been removed and a trench has been excavated to enable repair of the system and installation of an Allan block wall (Photo 2). In addition to the settlement to the front of the property, two other longitudinal cracks in the driveway and garage slabs on grade were also observed at this time. [ 30 ] Mr. Chadwick describes the terms of EHD’s engagement as: “EHD Consulting Ltd. was subsequently engaged to inspect and report on the settlement and slab cracking.” [ 31 ] In his report, Mr.

Chadwick describes his observations as to the damage to Birkenhead as settlement to the porch slab-on-grade, the garage slab-on-grade and the driveway slab. He identifies cracks on the exterior of the slab-on-grade. He describes the cracks as: The direction and location of Crack 1 indicates that it is settlement-induced, with a hinge forming around the settled fill area. Cracks 2 and 3 in and adjacent to the garage will not only have been caused by settlement, but will also have a component of expansion-related tension cracking, due to mid-slab location.

He does not consider crack 4 as related to settlement in the front of the house porch. In his report, Mr. Chadwick sets out the various measurements of settlement and describes the areas of settlement he encountered. [ 32 ] The only mention of the gutter system by Mr. Chadwick is at Photo 4 “Porch roof has settled to the front, guttering will not function correctly.” [ 33 ] The EHD report came to the following conclusions: We conclude the following: o The cracked slabs-on-grade illustrate components both of settlement and expansion-related cracks.

Crack 1 can, however, be attributed fully to settlement from the previously leaking irrigation system and the associated fill settlement. o The slab-on-grade pathway and porch concrete have settled due to wetting of the compacted material to the front of the property. o The structural support Posts 2 and 3 for the porch area require remediation to restore the porch roof tolerances to within Code limits. o There is no evidence of main house settlement. ISSUE [ 34 ] The issue is whether the limitation period is two years or six years within which the plaintiff has to bring his claim.

It then must be determined the day in which the plaintiff discovered the damages to Birkenhead. APPLICABLE LIMITATION STATUTE [ 35 ] The plaintiff’s claim was discovered prior to the effective date of the Limitation Act , R.S.B.C. 2012, c. 13 [ 2012 LA ]. Pursuant to s. 30 of the 2012 LA , the plaintiff’s claim is a pre-existing claim. Therefore, the former Limitation Act , R.S.B.C. 1996, c. 266 [ 1996 LA ] applies to the plaintiff’s action. Both the plaintiff and the defendants agree that the 1996 LA applies to this action.

STATUTORY FRAMEWORK [ 36 ] The defendants argue that the relevant limitation period is two years. The plaintiff argues the relevant limitation period relating to his action is six years. The 1996 LA is:

(2) After the expiration of 2 years after the date on which the right to do so arose a person may not bring any of the following actions: (

a) subject to subsection (4) (k), for damages in respect of injury to person or property, including economic loss arising from the injury, whether based on contract, tort or statutory duty; …

(5) Any other action not specifically provided for in this Act or any other Act may not be brought after the expiration of 6 years after the date on which the right to do so arose. [ 37 ] The plaintiff argues that if the limitation period is two years, it has been postponed pursuant to ss. 6(3)(b), (4) and (5) of the 1996 LA :

(3) The running of time with respect to the limitation periods set by this Act for any of the following actions is postponed as provided in subsection (4): … (

b) for damage to property; …

(4) Time does not begin to run against a plaintiff or claimant with respect to an action referred to in subsection (3) until the identity of thedefendant or respondent is known to the plaintiff or claimant and those facts within the plaintiff's or claimant's means of knowledge aresuch that a reasonable person, knowing those facts and having taken the appropriate advice a reasonable person would seek on thosefacts, would regard those facts as showing that (

a) an action on the cause of action would, apart from the effect of the expiration of a limitation period, have a reasonable prospect ofsuccess, and (

b) the person whose means of knowledge is in question ought, in the person's own interests and taking the person's circumstances intoaccount, to be able to bring an action.

(5) For the purpose of subsection (4), (a) “appropriate advice”, in relation to facts, means the advice of competent persons, qualified in their respective fields, to adviseon the medical, legal and other aspects of the facts, as the case may require, (b) “facts” included (

i) the existence of a duty owed to the plaintiff or claimant by the defendant or respondent, and (ii) that a breach of duty caused injury, damage or loss to the plaintiff or claimant, … [38] The plaintiff does not plead postponement in his pleadings. However, the plaintiff, in his Amended Response application andparagraphs 11, 14 and 16 of his Affidavit relies on postponement of the limitation period. POSITIONS Defendants [39] The defendants argue that the limitation period is two years.

Whether the claim is founded in tort or contract, they argue that thelimitation period started on November 1, 2012 and expired on November 1, 2014. The Notice issued January 27, 2015, is too late and theplaintiff’s claim is statute barred. Further, the defendants argue that the facts and applicable law does not permit the limitation period tobe postponed. Plaintiff [40] The plaintiff claims that the limitation period is six years and that the limitation period has not expired. However, the plaintiffargues, in the alternative, if the limitation period is two years, then the limitation period has been postponed.

CASE LAW CITED BY PLAINTIFF AND THEDEFENDANTS [41] The plaintiff, in support of his claim that the limitation period is six years, or in the alternative position, the limitation period istwo years, which has been postponed, relies on the following case law: Moses v. Lower Nicola Indian Band, 2015 BCCA 61; 355022B.C. Ltd. v. CCS Properties Inc. (1995), (BC CA), 14 B.C.L.R. (3d) 107 (C.A.), J.I. Properties v. PPG ArchitecturalCoatings Canada Inc., 2014 BCSC 1619; and Strata Plan No. VR 1720 v. Bart Developments Ltd., [1998] B.C.J.

No. 224. [42] The defendants, to support their argument that the limitation period is two years, and that the two-year limitation period was notpostponed, relies on Snowfield Development Corp. v Dyno Nobel Canada Inc., 2011 BCSC 1296, British Columbia Workers’Compensation Board of British Columbia v. Genstar, [1986] B.C.J. No 443, 355022 B.C. Ltd., Letroy v. Armenian Apostolic Church ofBritish Columbia, [1989] B.C.J. No. 1151; Tobacca v. Island Ready Mix Ltd., [1978] B.C.J. No. 1013, Shah v. Governor and Co. ofAdventurers of England Trading into Hudson’s Bay Co. (c.o.b.

Hudson’s Bay Co.), 2008 BCCA 114, Ounjian v. St. Paul’s Hospital,2002 BCSC 104, Levitt v. Carr, 12 B.C.A.C. 27, Day v. Central Okanagan (Regional District), 2000 BCSC 1134, Strata Plan VR 1720,Hughes v. Proline Management Ltd., [1996] B.C.J. 1669, and Shiner v. Port Alberni (City), 2004 BCSC 1076. ANALYSIS [43] The determination of a limitation period depends on how the claim is characterized in the pleadings. In the plaintiff’s pleadings,he claims injury to the property and, in particular, Birkenhead, and seeks “Reimbursement for the cost of repairs to the home”.

Theplaintiff claims this injury occurred because the defendants breached their contract with him when they stated that there was no problemwith the water system when they knew there was a problem with the water system.

Although the words “breach of contract” are notspecifically used in the Amended Notice, counsel for the plaintiff stated in submissions, the plaintiff’s claim arises in the breach of thecontract by the defendants of the property disclosure statement. [44] Both Snowfield and Workers’ Compensation Board demonstrate the difference between a two-year limitation period and six-year limitation period involving “injury to property”.

[45] The words “injury to property” is considered in Snowfield when Madam Justice Gropper stated at paras. 12-13: [12] In W.C.B. (B.C.) v. Genstar Corp. (1986), (BC CA), 24 B.C.L.R. (2d) 157 (C.A.), the court considered themeaning of the clause “injury to property”. The litigation involved a claim by the W.C.B. against the defendants relating to the buildingof a parkade. The parkade had structural problems which were repaired by some of the defendants in November 1979, and September1981. W.C.B. brought its actions against the defendants in February 1984. The court addressed which limitation period is applicable. [13] At pp. 161-162, the court stated: It is evident that s. 3(1)(

a) applies only if the action is for damages in respect of “injury to property”... I am persuaded by the authorities that “injury to property” refers to the situation where property is damaged by an extrinsic act, and not tothe situation where a claim is made for damage occasioned by defects in the property itself. ... Whether the action is brought in contractor tort, damage is an essential element of it. The question in each case is whether that damage comes within the phrase “injury toproperty”...

Policy considerations support the conclusion that “injury to property” refers to damage caused by an identifiable external event. A shortlimitation period of two years is appropriate where the claim is based on an event which causes direct injury to property.

Such a shortlimitation period may not be appropriate for a claim based on defects in the property which may not manifest themselves clearly forsome time, even though with the benefit of hindsight one may be able to say that their onset was revealed at an earlier date. [46] In Workers’ Compensation Board, the Court concluded that the beams used to construct the parkade were defective and thatthese defects did not fall within “injury to property”.

The result was the limitation period was six years. [47] In Snowfield, Gropper J. cited examples where the two-year limitation period was determined as appropriate in A.G. (Ont.) v.Fatehi, (SCC), [1984] 2 S.C.R. 536; Lau Bat Logging Co. Ltd. v. B.C. (1986), (BC CA), 1 B.C.L.R.(2d) 390 and Low v. Petro-Canada Inc., 2001 BCSC 251. Gropper J. said this in regard to these cases: [20] With respect, the defendant’s position is too narrow. It ignores the contract that it was hired to perform. In Fatehi, Lau Bat, andLow, a third party injured the property and the claim was for loss related to that property.

In Fatehi, the defendant caused an accidentwhich left debris on the highway and caused it to be closed; in Low, the loss was merchantable timber. In Lau Bat, the claim was inrespect of environmental damage to the property. [48] Madam Justice Gropper concluded that the six-year limitation applied. In doing so, she concluded [22] The plaintiff's claim for damages is not in respect of the injury to land, but rather breach of contract or negligent performance ofa contract.

As that is the case, the 6 year limitation applies. [49] Here, the plaintiff does not allege that he entered a contract with the defendants to install irrigation and gutter systems, whichwas breached due to their improper installation. [50] Both Letroy and Tobacca are illustrative of a two-year limitation period. In Letroy, the Court found that the limitation periodwas two years. The defendant started to build on their property which was next door to the plaintiff’s property. The plaintiff discoveredwater coming into their property after a certain excavation had taken place on the defendant’s property.

The chimney came away fromthe home located on the plaintiff’s property and, later on, the plaintiff discovered cracks in the home’s foundation as well as a room inthe house started to slope. It found: …the probable cause of the settlement of the plaintiffs' house was the weight of the pre-load on the Church property. The Court found that the plaintiff’s claim was founded upon nuisance. The Court found that the appropriate limitation period was twoyears. The Court concluded that the damage to the chimney was statute barred, but the damage to the foundation slab was not.

Thedifference was when the discrete damages were discovered. [51] In Tobacca, the plaintiff’s farm property was damaged by the defendant: … in discharging turbid water into the Piercy Creek watershed caused significant quantities of particulate matter from its gravel-washingoperation to be deposited in the channels of Piercy and Happy Creeks, lying within the boundaries of what are now the plaintiff's lands,during the years from around 1960 through 1977.

I find as a fact that the deposits originating from the defendant's operations contributedmaterially to the clogging of the stream beds and the consequent flooding. The Court found that the plaintiff’s claim was subject to a limitation period of two years after the cause of action arose. In both Letroyand Tobacca, there was direct and external damage to the plaintiff’s property. [52] In Moses, Mr. Moses’ claim was for legal fees he incurred on behalf and in the best interests of the Band. The Band refused topay him and the limitation period was raised.

The trial court concluded that it was an injury to a person or injury to property and foundMr. Moses’ claim was statute barred. The Appeal Court, quoting Chief Justice Nemetz in British Columbia Hydro & Power Authority v.Homco International Ltd. (1980), (BC CA), 25 B.C.L.R. 181, stated the following at para. 35: …At para. 3, the Chief Justice adopted the reasoning in Chang v. Price Properties Ltd. (1978) (BC SC), 8 B.C.L.R. 16(S.C.) that: … s. 3(1)(

a) is meant to cover personal injury claims and damage to property arising primarily in tort but also, in some circumstances,from breach of contract and breach of statutory duty. Actions arising from breach of contract not involving physical injury or directdamage, in my view, do not fit within this section. [At 182; emphasis added.]

[53] The Court in Moses also quoted Hinkson J.A. who said this in connection with a claim for defective construction of a buildingin Alberni District Credit Union v. Cambridge Properties Ltd. (1985), (BC CA), 65 B.C.L.R. 297: …I agree that injury imports something in the nature of physical injury or damage. This building simply has not, in plain language, beeninjured. So the action is not one in respect of injury to property. It may be, as the defendants assert, that the defect has resulted in somephysical damage or injury.

But, in the old language, that is not something which is of the gist of the cause of action. [para. 15; emphasisin original]. [54] The Appeal Court found Mr. Moses’ claim was misfeasance in office and it was not caught by s. 3(2) of the 1996 LA and it wassubject to a six-year limitation period. [55] The two-year limitation period applies to the plaintiff’s claims against the defendants as the claim is for breach of contract anddamages to property.

DATE OF KNOWLEDGE [56] There is no dispute as to the discovery and identity of the defendants in this action. [57] In the plaintiff’s lawyer’s email to the female defendant, it states that the plaintiff shortly after he purchased Birkenhead“discovered significant problems with the foundation”. The plaintiff noticed sinking and cracking around the ground level of Birkenheadand a sagging Allan Block wall in April 2012. He hired workmen to repair the problem in May 2012.

Those workmen discovered thecause, which was the improper installation of water pipes which caused the irrigation system to leak resulting in soil erosion. Theirrigation system was fixed. The plaintiff claims that he did not know the cause of this damage until he received the EHD report onNovember 1, 2012. [58] It is clear from the first paragraph of the EHD report and the terms of their engagement, that EHD was not engaged to give anopinion about the sagging Allan Block wall as related to the irrigation system. [59] Mr.

Chadwick, based on information he received from the plaintiff, learned that the plaintiff hired a contractor to rebuild theAllan Block wall. The plaintiff told Mr. Chadwick during the excavation the contractor found wet, compacted sub-soil and a leakingirrigation system. From the plaintiff, Mr. Chadwick learned that the contractor’s advice was that the wet sub-soil was the cause of thesettlement on the slabs-on-grade.

He also accepted as a fact that the irrigation system was repaired and the Allan Block wall was rebuilt. [60] At the time of hiring EHD, the plaintiff knew the cause of the problems with the sagging Allan Block wall. The plaintiffengaged EHD to inspect and report on the settlement and slab cracking observed by the plaintiff in the fall of 2012. [61] I conclude that the plaintiff knew by the end of May 2012 that one of the causes of the damages to Birkenhead was the leakingirrigation system. I find the plaintiff knew at the end of May the facts that could form the basis of a cause of action against thedefendants.

The defendants concede that the latest date that the plaintiff knew of the damage to Birkenhead, as a result of the irrigationsystem, was November 1, 2012. [62] Upon receiving the EHD report, the plaintiff knew that Crack 1 was a result of settlement and was caused by the leakingirrigation system. On November 1, 2012, the plaintiff knew the facts that could form the basis of a cause of action relating to thesettlement from Crack 1 at Birkenhead. [63] The EHD report found that the slabs for the pathway and porch concrete had settled “due to wetting of the compacted soil to thefront of the property.” Mr.

Chadwick did not find a cause for this wetting. Implicit in his report, Mr. Chadwick states that furtherexcavation is required to determine other information required by him. This is referred to in the last three bullet points on page 2 of hisreport. [64] The plaintiff proceeded to excavate Birkenhead further in early January 2013. The plaintiff states that the cause of the saggingAllan Block wall was due to the gutter system.

However, the plaintiff’s pleadings allege that in January, as a result of constant and nearconstant leaking of the gutter system at Birkenhead, was causing soil erosion. [65] I conclude that it was not until January 2013 that the plaintiff was aware of the cause of the cracks in the garage and adjacentarea and the settlement and front of Birkenhead.

POSTPONEMENT OF THE LIMITATION PERIOD [66] The two-year limitation period for actions concerning damages to property as a result of contract, tort or statutory duty, may bepostponed pursuant to s. 6 of the 1996 LA. [67] The onus is on the plaintiff to prove the postponement should be on a day other than the day when the damage was discovered:Shah v. Governor and Co. of Adventurers of England Trading into Hudson’s Bay Co., [2008] B.C.J.

No. 479. [68] The following case law provides meaning to s. 6(4) and (5) of the 1996 LA. [69] In Levitt, the Court adopted a subjective/objective test in that the information must be available to the plaintiff, it must beinformation which a reasonable person in the position of the plaintiff had reason to seek, and that the plaintiff would have done so. [70] In 35022 B.C. Ltd. v. CCS Properties Ltd., [1995] B.C.J. No. 2217. Cracks appeared in the plaintiff’s commercial building,

blasting had occurred during excavation on the property across the street. The Court found that the first time the plaintiff learned that there was a cause connected to the defendant’s excavation of the property across the street as a result of blasting, was when the plaintiff received an engineering report: [29] … which, for the first time to the plaintiff's knowledge, found a causal connection between the blasting on the defendant's premises and the cracks in the plaintiff's building.

Only when that opinion was received did the plaintiff have advice that an action based on the known facts would have a "reasonable prospect of success". The Court found that the limitation period did not start to run until the date of that report. [ 71 ] When is it that a reasonable person receives appropriate advice to decide whether legal action has a prospect of success?

This is described in Levitt : …This advice is given the conceptual status of facts and, when added to those within the plaintiff's means of knowledge, forms the body of information upon which the reasonable man decides whether an action on the cause of action would have a reasonable prospect of success … [ 72 ] In Day , the quality of the knowledge is described as: [95] ... perfect knowledge is not what is required. Instead, what is required is knowledge that is sufficient to put a plaintiff on notice that it ought to commence an action against a defendant.

The plaintiff can then acquire more evidence pointing to the liability of the defendant during the discovery process in contemplation of a trial. [ 73 ] The limitation period does not begin to run until certain components are met. In Ounjian , Mr. Justice Tysoe summarized them as follows: [21] In Vance v. Peglar , Lambert J.A. usefully broke the text of s. 6(4) down into three components; there is a fourth component which was not relevant in Vance v. Peglar. The four components can be paraphrased within the context of the present circumstances as follows: 1.

The identity of the defendant is known to the plaintiff. 2. The plaintiff has certain facts (including the facts set out in s. 6(5)(b)) within her means of knowledge. 3. A reasonable person, knowing those facts and having taken the appropriate advice a reasonable person would seek on those facts, would regard the facts as showing that an action would have a reasonable prospect of success. 4.

A reasonable person, knowing those facts and having taken the appropriate advice a reasonable person would seek on those facts, would regard the facts as showing that the plaintiff ought, in her own interests and taking her circumstances into account, to be able to bring an action. All four of these components must be satisfied before the running of time with respect to the limitation period begins running.

Thus, if a plaintiff is able to demonstrate that any one of the four components had not been satisfied before two years prior to the commencement of the action (in the case of a two year limitation period), the action will not be statute barred . In this case, the action was commenced on May 13, 1998, with the result that May 13, 1996 is the relevant date by which the four components must have been satisfied for the limitation period to have expired prior to the commencement of the action.

It is to be noted that once the running of time with respect to a limitation period has commenced running, it cannot be further postponed or suspended under s. 6(4). This is in contrast to s. 7, which provides for a suspension of the running of time when a person comes under a disability prior to the expiry of the applicable limitation period. [My emphasis] [ 74 ] The plaintiff had all the facts by November 1, 2012 as to the cause of the sagging Allan Block wall, which was the leaking irrigation system. There was no dispute about the identification of the defendants.

The plaintiff took action by seeking advice from a workman to investigate the problem, who excavated and determined the cause of and repaired the leaking irrigation system. The plaintiff sought advice from an engineer, Mr. Chadwick, who was aware of the faulty irrigation system and the workman’s opinion and the action he took. By November 1, 2012, the plaintiff knew the faulty irrigation system caused the sagging Allan Block wall and also caused Crack 1 and its associated settlement.

On November 1, 2012, the plaintiff knew he had evidence of the cause of the damages in the observations and repairs conducted by the workman and the advice of EHD’s engineer sufficient to bring an action against the defendants relating to the damage caused by the leaking irrigation system. The plaintiff has not demonstrated that based on any one of the Ounjian components that the plaintiff’s claims relating to the irrigation pipe should be postponed. [ 75 ] The claim relating to the damages caused by the irrigation system is statute barred.

The claim for damages to Birkenhead became statute barred on November 1, 2014. However, this does not include those damages to Birkenhead described as settlement and slab cracking. [ 76 ] In Strata Plan No. VR 1720 , professional negligence and breach of warranty were alleged against all defendants. It was not disputed that the six-year limitation period applied. The Court found, upon the receipt of an independent report, and the plaintiff’s own observations, that the type of roof that was called for in the plans had not been installed, and there were deficiencies in the stucco.

The plaintiff pursued practical solutions to their problems. Madam Justice Humphries stated at para. 34: … their pursuit of a practical solution does not relieve them of their obligation to obtain advice, either actual or notional, respecting a legal action if they seek to rely on the postponement of a limitation period. In any event, once the CSA report was received, a reasonable person would have concluded a good cause of action lay against the developers, the engineering consultants and the architects in respect of the replacement/repairs to the roof and the stucco.

[77] A similar situation arose in Strata Plan No. VR 1720 as in this matter. The Court found that the plaintiff’s claim for the roof andstucco was statute barred, though other deficiencies in the building were not as the Court found at para. 40: …I cannot say that the rest of the deficiencies were within their means of knowledge at the relevant time and claims for them are notbarred, with leave to the defendants to raise this argument at the trial after the evidence has been heard. Interest and Circumstances [78] Other considerations are necessary in the

interpretation of s. 6(4)(

b) of the 1996 LA. This is described in Novak v. Bond, (SCC), [1999] 1 S.C.R. 808. Novak was a medical malpractice claim. Novak interprets s. 6(4)(

b) of the 1996 LA at para. 73as follows: [73] The

interpretation given to s. 6(4)(

b) must give proper weight to: (1) the Legislature's inclusion of a subjective/objectivestandard in s. 6(4)(b); (2) the broad wording it has used in that provision; (3) the contemporary view that when construing a limitationsstatute the plaintiff's concerns must be considered together with the defendant's need to be protected from stale claims brought bydilatory plaintiffs; and (4) the interpretive presumption that s. 6(4)(

b) adds something to s. 6(4)(

a) and, to the rest of the Act. Many of theproposed

interpretations fail to meet one or more of these requisites. [79] In Novak, the limitation period was postponed. Ms. Novak’s breast cancer had been misdiagnosed. The Supreme Court ofCanada, in this unique situation, concluded at para. 97: …However, her interests and circumstances changed dramatically in May 1995. It was then that she learned that her cancer had returned,this time to her spine, liver, and lung. She no doubt understood that she was in great jeopardy and that her previous attempts to regain herhealth and avoid any harm that may have been caused by Dr. Bond's alleged negligence had been to no avail.

The circumstances thatprecluded a decision to sue earlier - the need to maintain a positive outlook and believe herself cured - were no longer operative. Absentthese considerations, her need to redress the serious wrong allegedly done to her and her consequent willingness to undergo the stressesand strains of litigation outweighed her intensely felt desire to concentrate on regaining her health. Litigation became a realistic option. [80] In Shiner, the plaintiffs purchased a newly constructed home which, after three years, presented signs of soil movement.

Theyconsulted a government ministry and the Ombudsman who urged them to take legal action. The plaintiff consulted legal counsel and tookno action. They decided to fix the house themselves and the limitation period expired. Justice R.D.

Wilson held that the limitation periodwas not postponed for the following reasons: [38] The interests and circumstances urged in this case, by the plaintiffs, are that they were a young couple faced with a choicebetween the uncertainties of litigation, with its attendant costs, and the repair of what, to them, presented as minor damage. [39] I am not persuaded that those are serious, significant, or compelling reasons for the delay in pursuing the remedies available tothem in 1980. [40] In result, I find that the limitation period for the bringing of this action has expired.

Accordingly, the action is dismissed. [81] The only evidence that the plaintiff presents as to why he could not start this action before November 1, 2014 is in his Affidavitat paragraph 14: 14. Until I investigated the matter further, I could not in all good conscience ascertain whether or not the disconnected pipes weredone by negligence or caused by time and whether or not the previous owner knew or ought to have known that that was an issue. This is not sufficient.

This statement made by the plaintiff does not speak to the leaking irrigation pipes, but it does speak to the leakingwater from the gutter system. [82] On November 1, 2012, the plaintiff knew that the slab-on-grade pathway and porch concrete settled due to the wetting of thecompacted material in front of Birkenhead. The cause of the “wetting” was unknown. It was not the irrigation system as Mr. Chadwickwould have said so as he found that the leaking irrigation system caused Crack 1. [83] In order to find a cause, further excavation was required.

Within two months of November 1, 2012, excavation took place andthe cause was found – the gutters which removed water and drained by a pipe underground was not connected which leaked and causederosion. [84] Before the excavation in January 2013, and without knowing the cause, the plaintiff would not have all the facts sufficient,along with appropriate advice, to bring an action against the defendants. [85] I conclude by sometime in January 2013, the plaintiff had all the Ounjian components necessary to bring an action against thedefendants for damages identified in the EHD report and which were not as a result of the leaking irrigation system.

This claim fordamages is postponed and is not statute barred until some time in January of 2015. There is no specific date in January of 2013 when theexcavation took place and the plaintiff would know the facts, take appropriate advice and based on the facts and advice, know that hehad a reasonable prospect of success. Taking all of those matters into consideration, the plaintiff would know in his own interests that hewould be able to bring an action against the defendants. [86] This action was started on January 27, 2015, a little over two years after the January 2013 excavation.

As a result, I will grantleave to the defendants to raise the argument as to whether the action relating to the damages, not related to the leaking irrigation system,are statute barred, after all of the evidence has been heard.

COSTS [ 87 ] The defendants have been successful in having a portion of the plaintiff’s claim found statute barred. I award the defendants two-thirds of their costs and disbursements at Scale B, which will include both hearing appearances of September 30, 2016 and October 17, 2017. [ 88 ] I do not award any costs to the plaintiff relating to that portion of his claim not being found statute barred, as the defendants were put to the expense of amending their Notice of Application when, during the first hearing of the application, the defendants learned for the first time that the plaintiff intended on amending their Notice of Civil Claim. “H.C. Hyslop J.” HYSLOP J.