Roseberry Square Inc. v. Val Landry & Son, 2023 NBKB 229

Citation: Roseberry Square Inc. v. Val Landry & Son , 2023 NBKB 229 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF MONCTON MC-662-2020 BETWEEN : ROSEBERRY SQUARE INC., PLAINTIFF (Respondent on Motion) - and - VAL LANDRY & SON (ROOFING & SHEET METAL WORKING) LTD., a body corporate, DEFENDANT (Applicant on Motion) DECISION BEFORE: Justice Maya Hamou AT: Moncton, New Brunswick DATE OF HEARING: December 8, 2023

DATE OF DECISION: December 19, 2023 APPEARANCES: Nicolas O’Toole, Counsel for the Plaintiff Emilie S. Jerome, Counsel for the Defendant INTRODUCTION 1 . Roseberry Square Inc., the Plaintiff, hired Val Landry & Son (Roofing & Sheet Metal Working) Ltd., the Defendant, in August of 2010 to replace the roof at a commercial premise it owned in Campbellton, New Brunswick. The roof replacement was completed in October of 2010 by the Defendant. 2 . Shortly after the roof replacement, the premise experienced water infiltration and continued to experience water infiltration year after year.

The Defendant attempted to assist in rectifying the issue. 3 . A Claim was filed in November of 2020 raising negligence and breach of contract in relation to the replacement of the roof completed in 2010, 10 years earlier. 4 . The Defendant filed a motion for

summary judgment, seeking the dismissal of the Claim on the basis it is statute barred by operation of paragraph 5(1) (

a) of the Limitation of Actions Act, SNB 2009, c L-8.5 . 5 . The Court is satisfied the Claim was discovered in 2010 upon the first incident of water infiltration. The Court is not satisfied that continuous acts or omissions, or assurances by the Defendant extended the limitation period by operation of sections 6 or 22 of the Limitation of Actions Act . 6 . The Court concludes the Claim is statute barred and that there is no genuine issue for trial. Therefore,

summary judgment is granted in favor of the Defendant and the Claim is dismissed with 2000$ in costs. FACTS Replacement of the Roof 7 . In August of 2010, the Plaintiff, Roseberry Square Inc. contracted with the Defendant, Val Landry & Son (Roofing & Sheet Metal Working) Ltd. to install a new roofing system at commercial premises located at 32-33 Roseberry Street and 19 Aberdeen Street in Campbellton. The roof replacement was completed in December of 2010. Water Infiltration and Attempt to Remedy 8 . In December of 2010, the Plaintiff noticed water infiltration inside the premises.

The Defendant attended the premise in the summer of 2011 and addressed the water infiltration. 9 . In December of 2011, the Plaintiff again noticed water infiltration inside the premises. The Defendant attended the premise in the spring of 2012 and addressed the water infiltration. 10 . For the following tiff years, water infiltrated the building in the winter months. And every year, the Defendant continued to attend the premise in the spring to address the water infiltration. 11 . In August of 2020, the Plaintiff replaced the entire roof. 12 .

Neither party referred the Court to conversations or correspondence surrounding the yearly visits by the Defendant. After encountering water infiltration, the Plaintiff called the Defendant who would attend the residence and attempt to address the issues.

Claim 13 . The Plaintiff commenced an action against the Defendant on November 23, 2020, raising claims in negligence and breach of contract for the replacement of the roof in 2010. The Plaintiff seeks compensation for the replacement of the roof and general damages for the repair and maintenance of the building. 14 . The Defendant filed a Statement of Defence in May of 2021 and an amended Statement of Defence in July of 2022 disputing liability for the Plaintiff’s damages and relying on the expiration of the limitation period. Position of the Parties 15 .

The Defendant argues the Claim is statute barred by operation of subsection 5(1) of the Limitation of Actions Act . More specifically, the Defendant suggests the evidence establishes the deficiencies were known or ought to have been known to the Plaintiff more than two years prior to the commencement of the action. Further, the Defendant argues the Plaintiff possessed sufficient knowledge of the deficiencies to make out a plausible inference of liability starting in 2010. 16 . The Plaintiff argues the Claim was only discovered in 2019.

And that prior to 2019, the yearly repeated water infiltration events did not give rise to “discovery of the Claim” as the Defendant returned and addressed the issues yearly. Further, the Plaintiff suggests that the Claim is not statute barred based on the Defendant’s actions which suggested the issue would be resolved by agreement. The Plaintiff also suggested the yearly visits of the Defendants reset the limitation period clock by constituting a continuous act or omission. ISSUES 17 . Is there a genuine issue for trial which cannot be resolved by way of a motion for

summary judgment under Rule 22 of the Rules of Court of New Brunswick on the face of the Pleadings and Affidavit evidence? 18 . Is the Claim statute barred by operation of subsection 5(1) of the Limitation of Actions Act ? Do the attempts to remedy the water leak at the commercial premise constitute a continuous act or omission, within the scope of

section 6 of the Limitation of Actions Act ? Did the attempts to remedy the water leak at the commercial premise cause the Plaintiff to reasonably believe the Claim would be resolved by agreement causing delay in bringing the Claim, within the scope of

section 22 of the Limitation of Actions Act ? ANALYSIS

Summary Judgment – Rule 22 of the Rules of Court of New Brunswick 19 . The Defendant filed a motion for

summary judgment and seeks a dismissal of the Claim on the basis there is no genuine issue for trial pursuant to Rules 22.01 and 22.04 of the Rules of Court of New Brunswick . 22.01 Where Available To Defendant

(3) After the defendant has served a Statement of Defence, the defendant may move with supporting affidavit or other evidence for

summary judgment dismissing all or part of the claim in the Statement of Claim. […] 22.04 Disposition of Motion General

(1) The court shall grant

summary judgment if (

a) the court is satisfied there is no genuine issue requiring a trial with respect to a claim or defence, or […] 20 . The guidance from the Supreme Court of Canada and the New Brunswick Court of Appeal on the use of the

summary judgment rule was summarized by Justice Morrison in Estapan v Dykeman, et al, 2020 NBQB 65 at paragraphs 13 and 14 . Justice Morrison’s

summary guides the process in a

summary judgment motion. [13] Amendments to Rule 22, which came into force in 2017, have significantly altered the legal landscape with respect to parties seeking

summary judgment. These were in response to the encouraged use of

summary judgment as part of a “cultural shift” toward simplified adjudication outlined in Hryniak v Mauldin , 2014 SCC 7 . In O’Toole v Peterson , 2018 NBCA 8 , Chief Justice Drapeau (as he then was) identified the key changes implemented by the new rule. In particular, he pointed out that a court is no longer restricted to cases where there is “no merit” to the defence. The court clearly stated that the test for

summary judgment under the new rule is simply whether there is a genuine issue requiring a trial (para. 68).

[14] In Russell et al v Northumberland Co-Operative Ltd. , 2019 NBCA 70 , the Court of Appeal expanded on the import of the 2017 amendments. The key points from O’Toole and Russell can be summarized as follows: 1. The only test for

summary judgment is whether there is a genuine issue requiring a trial; 2. The burden of proof is on the moving party to establish there is no genuine issue requiring a trial and it is on the balance of probabilities; 3. The importance of the parties putting their best foot forward and leading trump or risk losing is more significant under the new Rule 22; 4. The rule provides for a two-step process to determine whether there is a genuine issue requiring a trial; 5. In step one the judge must determine if the evidence presented reveals a genuine issue requiring a trial.

If, on the filed evidence alone, the judge can fairly and justly adjudicate the dispute there will be no genuine issue requiring a trial and the judge must grant

summary judgment; 6. If the judge cannot adjudicate the dispute on the filed evidence he will proceed to step two. A judge only proceeds to step two if the assessment of the filed evidence leads to the conclusion that there may be a genuine issue requiring a trial. The judge will then determine if a trial can be avoided by resorting to the fact-finding powers of Rules 22.04(2) and (3) (the “mini-trial”); 7. The guiding principle is that it will always be in the interest of justice for a judge to make use of the mini-trial where possible. [Emphasis added] 21 .

In this case, the Defendant’s motion is succinct and focused on one legal question; is the Claim statute barred by operation of paragraph 5(1) (

a) of the Limitation of Actions Act . The factual matrix underlying the legal argument is uncontested and contained within the Affidavits of the parties. The evidentiary record before the Court provides a sufficient basis upon which to adjudicate the narrow legal question and does not require a trial. Resolution of this question, in the

summary judgment motion eliminates the need to proceed to trial and promotes an affordable, timely and just resolution of the issues in dispute between the parties. Action statute barred by Limitation of Actions Act Discoverability – Section 5(2) of the Limitation of Actions Act 22 . The Limitation of Actions Act prescribes a time within which actions must be commenced. The general time-period prescribed for commencing an action is the earlier of (

a) two years from the day on which the claim is discovered and (

b) fifteen years from the date of occurrence. 5

(1) Unless otherwise provided in this Act, no claim shall be brought after the earlier of (

a) two years from the day on which the claim is discovered, and (

b) fifteen years from the day on which the act or omission on which the claim is based occurred. 23 . Subsection 5(2) of the Limitation of Actions Act explains that a claim is discovered when a plaintiff knows or ought reasonably to have known an injury, loss or damage occurred. 5

(2) A claim is discovered on the day on which the claimant first knew or ought reasonably to have known (

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

b) that the injury, loss or damage was caused by or contributed to by

an act or omission, and (

c) that the act or omission was that of the defendant. 24 . The concept of discoverability has been the subject of much discussion by the Courts. Justice Moldaver speaking for the Supreme Court of Canada in Grant Thornton LLP v New Brunswick , 2021 SCC 31 set out in paragraphs 42 to 46, the requisite degree of knowledge to discover a claim. [42] [....] I propose the following approach instead: a claim is discovered when a plaintiff has knowledge, actual or constructive, of the material facts upon which a plausible inference of liability on the defendant’s

part can be drawn . This approach, in my view, remains faithful to the common law rule of discoverability set out in Rafuse and accords with s. 5 of the LAA . [43] By way of explanation, the material facts that must be actually or constructively known are generally set out in the limitation statute. Here, they are listed in s. 5(2) (

a) to (c). Pursuant to s. 5(2) , a claim is discovered when the plaintiff has actual or constructive knowledge that: (

a) the injury, loss or damage occurred; (

b) the injury loss or damage was caused by or contributed to by

an act or omission; and (

c) the act or omission was that of the defendant. This list is cumulative, not disjunctive. For instance, knowledge of a loss, without more, is insufficient to trigger the limitation period. [44] In assessing the plaintiff’s state of knowledge, both direct and circumstantial evidence can be used. Moreover, a plaintiff will

have constructive knowledge when the evidence shows that the plaintiff ought to have discovered the material facts by exercisingreasonable diligence. Suspicion may trigger that exercise (Crombie Property Holdings Ltd. v. McColl-Frontenac Inc., 2017 ONCA16, 406 D.L.R. (4th) 252, at para. 42). [45] Finally, the governing standard requires the plaintiff to be able to draw a plausible inference of liability on the part of thedefendant from the material facts that are actually or constructively known.

In this particular context, determining whether aplausible inference of liability can be drawn from the material facts that are known is the same assessment as determining whether aplaintiff “had all of the material facts necessary to determine that [it] had prima facie grounds for inferring [liability on the part of thedefendant]” (Brown v. Wahl, 2015 ONCA 778, 128 O.R. (3d) 583, at para. 7; see also para. 8, quoting Lawless v. Anderson, 2011 ONCA102, 276 O.A.C. 75, at para. 30).

Although the question in both circumstances is whether the plaintiff’s knowledge of the material factsgives rise to an inference that the defendant is liable, I prefer to use the term plausible inference because in civil litigation, there does notappear to be a universal definition of what qualifies as prima facie grounds. [...] [46] The plausible inference of liability requirement ensures that the degree of knowledge needed to discover a claim is morethan mere suspicion or speculation.

This accords with the principles underlying the discoverability rule, which recognize that it isunfair to deprive a plaintiff from bringing a claim before it can reasonably be expected to know the claim exists. At the same time,requiring a plausible inference of liability ensures the standard does not rise so high as to require certainty of liability (Kowal v.Shyiak, 2012 ONCA 512, 296 O.A.C. 352) or “perfect knowledge” (De Shazo, at para. 31 ; see also the concept of “perfectcertainty” in Hill v. South Alberta Land Registration District (1993), 1993 ABCA 75 , 8 Alta. L.R. (3d) 379, at para. 8).

Indeed,it is well established that a plaintiff does not need to know the exact extent or type of harm it has suffered, or the precise cause ofits injury, in order for a limitation period to run (HOOPP Realty Inc. v. Emery Jamieson LLP, 2018 ABQB 276, 27 C.P.C. (8th) 83,at para. 213, citing Peixeiro, at para. 18). [Emphasis added] 25. Essentially, the Supreme Court held that the Plaintiff discovers a Claim when actual or constructive knowledge are sufficient tomake out a “plausible inference of liability”.

The Plaintiff need not reach certainty of the existence of a Claim but rather must draw aplausible inference of liability if the material facts are discoverable exercising reasonable diligence. 26. The Plaintiff argues the remedial work completed by the Defendant in the summer of 2018 led to water infiltration in the winter of2019, and that this date starts the clock for the limitation period. The Plaintiff also argues that it only became aware of the damages uponcompletion of inspection reports in May of 2020.

However, this position is inconsistent with the Plaintiff’s Statement of Claim whichasserts a breach of contract and negligence in the replacement of the roof in 2010. Further, it is inconsistent with the examination fordiscovery of Frederick Doucet, representative of the Plaintiff, who confirmed water infiltration was experienced in 2010 and every yearthereafter causing damages to the ceiling tiles, carpeting and walls. The evidence from the examination for discovery confirmed thePlaintiff experienced no water infiltration or mold issues prior to the 2010 roof replacement. 27.

It is difficult to accept the Plaintiff’s suggestion that every year after 2010 water infiltration would arise and the Plaintiff believedthem to be resolved after attempted repairs by the Defendant. In fact, to the contrary, the reality is the water infiltration arose year afteryear for 9 years. The water infiltration issue remained unresolved signaling plausibly to the Plaintiff that the initial roof replacement mayhave been deficient. At a minimum, the Plaintiff had sufficient information to draw an inference of liability which warranted furtherinvestigation. 28.

I am satisfied on a balance of probabilities from the evidentiary record presented on this motion, that the Plaintiff possessedsufficient knowledge of the alleged issues as early as 2010. And, consequently satisfied that the limitation period began to run inDecember of 2010. Continuous Act or Omission –

Section 6 of the Limitation of Actions Act 29. The Plaintiff relied on

section 6 of the Limitation of Actions Act which provides that a continuous act or omission can be deemed toextend the limitation period in paragraph 5(1)(

a) of the Limitation of Actions Act every day the act or omission continues. Continuous act or omission 6 If a claim is based on a continuous act or omission, the act or omission is deemed for the purposes of calculating the limitation periodsin

section 5 to be a separate act or omission on each day it continues. 30. The Plaintiff argues that every annual remediation attempt constituted a separate act of negligence which engages the operation ofsection 6 of the Limitation of Actions Act. On this point, the Defendant referred the Court to the New Brunswick Court of Appealdecision in Mirrer Hall Investments Inc. et al. v The City of Moncton et al., 2023 NBCA 14 at paragraph 6. [6] There is no basis to argue continuing acts, omissions or breaches occurred in this case.

The notion of a continuous act or omission,contained in s. 6, is reserved for cases where there are repeated acts or omissions. Here, the breach of contract on which the claim isbased occurred only once and was not continuously repeated. The fact it took time for the breach to be remedied is irrelevant to therunning of the limitation period. The passage of time does not make a single breach a continuous one for the purposes ofdistinguishing the Grant Thornton principle. As a result, s. 6 has no application. [Emphasis added]

Section 6 of the Limitation of Actions Act was also addressed by Justice Robichaud in Gaudet v Canada (Attorney General), 2022NBQB 33 (confirmed in Gaudet and Gaudet v Minister of Fisheries and Oceans et al., 2022 NBCA 60) at paragraphs 63, 66 and 67.

[63] […] Limitation periods start when a claim is discovered, not when the extent of damages is confirmed or once the legal consequences of the material facts are confirmed by a court of law. […] [66] There is no evidence before me that the trial uncovered any “new” fact or revelation concerning DFO’s conduct that could give rise to a new cause of action or somehow move the limitation period forward. [67] There is no evidence of continuous acts or omissions.

The fact that damages continued to accrue as the years passed with Gaudet being denied the profits from the licences does not make the act a continuous one. 32 . The Court of King’s Bench is bound by the legal principles outlined in Mirrer Hall Investments Inc. et al. v The City of Moncton et al . and the conclusions of the Court of Appeal in Gaudet v. Minister of Fisheries and Oceans et al. , 2022 NBCA 60 . 33 . In the case at hand, the roof replacement is the basis of the Plaintiff’s Claim. The roof replacement took place in 2010.

Remediation attempts did not give rise to a new cause of action nor did it give rise to a continuous act capable of displacing the limitation period pursuant to

section 6 of the Limitation of Actions Act. Assurances –

Section 22 of the Limitation of Actions Act 34 . The Plaintiff also referenced

section 22 of the Limitation of Actions Act which provides for a delay of the limitation period if the Defendant’s assurances or actions suggest the issue would be resolved by agreement. More particularly, the Plaintiff suggests the yearly attempts by the Defendant to address water infiltration caused them to believe the Claim would be and was resolved by agreement.

Delay caused by defendant 22 If the relevant limitation period established by this Act has expired, but the actions taken or assurances given by the defendant or the defendant’s agent in relation to the resolution of the claim before the expiry of the limitation period caused the claimant to reasonably believe that the claim would be resolved by agreement and therefore to delay bringing the claim, the claimant may bring the claim within 6 months after the day on which the claimant first knows or ought reasonably to know that the belief was unfounded. 35 .

The D efendant relies upon Cargojet Airways Ltd. v Aveiro Constructors Ltd., 2016 ONSC 2356 a case from the Ontario Superior Court of Justice with a similar factual underpinning. The Cargojet Airways Ltd. v Aveiro Constructors Ltd. , decision arose in the context of a breach of contract and negligence claim relating to the construction of a hanger. For several years after the construction was finished, the contractor continued to attend the hanger and repair the deficiencies at its expense, without success.

At one point, the client sent a bill to the contractor to rectify the deficiencies; payment of which was refused by the contractor. The client suggested the cause of action arose upon refusal of payment of work to remedy the construction issues. Justice Braid found that the attempts to fix the problems did not postpone the running of the limitation period. The findings of Cargojet Airways Ltd. v Aveiro Constructors Ltd. were cited with approval by several Ontario courts and stand for the principle that attempts to rectify a problem do not postpone the running of the limitation period. 36 .

Importantly, it should be noted that Ontario does not have an equivalent to

section 22 of the New Brunswick Limitation of Actions Act . Thus, the conclusions of the Ontario Superior Court are not applicable to this Court’s analysis of

section 22 of the Limitation of Actions Act . 37 .

Section 22 of the Limitation of Actions Act was referred to by Justice LeBlond in paragraph 39 of Mirrer Hall Investments Inc. et al. v The City of Moncton et al . . Agreeing with the Trial Judge, Justice LeBlonc stated that some level of “assurance” is required under

section 22 to suspend the operation of the limitation period. 38 . Justice LeBlonc also referenced with approval the proposition in Canada (Attorney General) v Sacrey , 2003 FCA 377 which stated that “some measurable form of guarantee” is implied in the notion of “reasonable assurances”. Although, Canada (Attorney General) v Sacrey was decided in the context of an employment insurance matter, the

interpretation of the statutory term “reasonable assurances” is relevant to this Court’s analysis. 39 .

Section 22 of the Limitation of Actions Act was also addressed by Justice Ouellette in PNB v Hiltz , 2021 NBQB 221 . Justice Ouellette at paragraph 17 suggested the presence of three elements to conclude the Defendant’s actions or assurances engaged

section 22 of the Limitation of Actions Act . [17]

Section 22 provides for the commencement of an action after the expiry of the two-year limitation period where the delay in filing the claim was caused by the actions or assurances of the defendant or his or her agent. The following elements are necessary with respect to the defendant’s actions or assurances: · they were in relation to the resolution of the claim; · they were before the expiry of the limitation period; · they caused the claimant to reasonably believe the claim would be resolved by agreement and therefore to delay filing his claim. 40 .

Further, Justice DeWare (as she then was), in Blanchard v Caisse Populaire de Shippagan, 2013 NBQB 180 , Justice DeWare, as she then was, considered

section 22 of the Limitation of Actions Act and at paragraph 51 referenced the need for clear communications or clear assurances.

[…] The plaintiffs had to establish that there had been clear communications between them and the defendants, that they intended tobring a claim, and that they had received clear assurances from the defendants that the object of their claim would be resolved byagreement before the end of 2011. The plaintiffs presented no evidence that the parties intended to resolve the claim by agreement.There is no evidence to confirm that the defendants were aware of the fact that the plaintiffs were planning to file a claim in 2011. 41.

Thus, for assurances of the Defendant to displace the limitation period in section 5(1) of the Limitation of Actions Act, evidence mustexhibit more than the subjective belief of the Plaintiff that the Claim would be resolved. By extension, the actions of the Defendant inthe context of

section 22 of the Limitation of Actions Act must also be linked to a belief the Claim would be resolved in order to displacethe limitation period in section 5(1) of the Limitation of Actions Act. 42. On a balance of probabilities, the evidence in this case does not support the conclusion that the Defendant provided an express orimplied waiver of the limitation period through assurances or actions. The Plaintiff did not advise the Defendant of the Claim in 2010.

The Plaintiff contacted the Defendant yearly to address water infiltration concerns, and every year, the Defendant attended to resolve thecurrent concerns of the Plaintiff. The issues with the roof were different from year to year. The yearly visits were not completed on thepremise of resolving a Claim against the Defendant. I conclude that the Defendant did not by their actions or assurances reasonablycause the Plaintiff to believe the Claim would be resolved as none was mentioned. Mention of a Claim, as opposed to the mention ofpotential damages, is a necessary component to engage

section 22 of the Limitation of Actions Act. Therefore, in this case,

section 22 ofthe Limitation of Actions Act does not displace the limitation period in section 5(1) of the Limitation of Actions Act. 43. In conclusion, it bears noting that the Ontario Court of Appeal in Haldenby v Dominion of Canada General Insurance Co. (2001) (ON CA), 149 OAC 172 in paragraphs 17 and 18, explained that limitation periods are important to ensuretimeliness, fairness, the preservation of evidence and finality in the administration of justice.

These key concepts remain and were morerecently reiterated by the Supreme Court of Canada in paragraph 39 of the Grant Thornton LLP v New Brunswick. 17 Limitation periods play an important role in the administration of justice by achieving a balance between every individual's right tojustice, on the one hand, and the systemic need for finality on the other.

In their operation, limitation periods encourage the timelyresolution of legal controversies and reconcile the competing interests of potential claimants, potential defendants and society at large. 18 The application judge properly outlined the three rationales underlying limitation periods, as set out by La Forest J. in M. (K.) v. M.(H.) (1992), (SCC), 96 D.L.R. (4th) 289 (S.C.C.), at pp. 301-2. They are: 1. Certainty rationale: "a potential defendant should be secure in his reasonable expectation that he will not be held to account for ancientobligations." 2.

Evidentiary rationale: this "concerns the desire to foreclose claims based on stale evidence. Once the limitation period has lapsed, thepotential defendant should no longer be concerned about the preservation of evidence relevant to the claim." 3. Diligence rationale: "plaintiffs are expected to act diligently and not sleep on their rights; statutes of limitation are an incentive forplaintiffs to bring a suit in a timely fashion." 44.

Importantly, it should be noted that Courts do not have authority to extend statutory limitation periods absent a statutory provisionproviding such discretion (Morton J.C., Limitation of Civil Actions, Toronto, Carswell, (1988), p. 93). 45. Based on the foregoing, I conclude that the Claim is statute-barred by application of paragraphs 5(1)(

a) and 5(2)(

a) of the Limitationof Actions Act. DISPOSITION 46. The Defendant’s motion for

summary judgment is granted and consequently the Claim is dismissed with 2000$ in costs payable bythe Plaintiff. DATED at Moncton, New Brunswick, this 19th day of December 2023. ________________________________________ Justice Maya Hamou Court of King’s Bench of New Brunswick