Errors were material to conclusion that plaintiffs knew or ought to have known material facts giving rise to claims

Ontario civil | Civil Practice and Procedure | Summary judgment | General principles

Plaintiffs purchased cottage. Cottage began to tilt towards lake, and plaintiffs built new cottage for which defendant construction company constructed footings and foundation for home and deck, then assembled prefabricated home and deck. Township issued relevant permits. New cottage also was subject to slope movement. Plaintiffs commissioned report. Plaintiffs did not act on report. Later, plaintiffs removed and replaced wall. Plaintiffs claimed that construction company was negligent in construction of their home and that township breached its statutory duty towards them. Plaintiffs brought action against construction company, township and another defendant. Construction company and township successfully brought motion for summary judgment. Plaintiffs appealed. Appeal allowed and judgment was set aside. Errors were material to motion judge’s conclusion that plaintiffs knew or ought to have known material facts giving rise to all of claims against respondents. If he had not made these errors, he would not have concluded that plaintiffs’ claims were discoverable in 2009 but at earliest in 2012. As a result, plaintiffs’ claims were not statute-barred. Trial was not necessary to determine this issue.

Gillham v. Lake of Bays (Township) (2018), 2018 CarswellOnt 12273, 2018 ONCA 667, L.B. Roberts J.A., Paul Rouleau J.A., and Fairburn J.A. (Ont. C.A.); reversed (2017), 2017 CarswellOnt 20263, 2017 ONSC 5879, E.J. Koke J. (Ont. S.C.J.).

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