CITATION: Berta v. Arcor Windows and Doors Inc., 2016 ONSC 7395 COURT FILE NO.: C-14-2600-SR DATE: 2016/11/29 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Steve Berta and Manon Berta, Plaintiffs AND: Arcor Windows & Doors Inc., Defendant BEFORE: Justice A. K. Mitchell COUNSEL: M. Cook, counsel for the plaintiffs S. Miller, counsel for the defendant HEARD: November 15, 2016 (at Stratford) ENDORSEMENT Overview [1] The defendant brings this motion for summary judgment seeking an order dismissing the plaintiffs claim on the basis it is statute-barred. [2] Specifically, the defendant argues that in accordance with the test of discoverability codified in the Limitations Act, 2002, the plaintiffs knew on or about March 3, 2012 that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it. 1 (emphasis added) [3] The defendant bears the onus of establishing that there is no genuine issue requiring a trial. Once that onus is met, the plaintiffs bear the burden of establishing the claim was commenced within the limitation period. Background [4] The chronology of events is not in dispute. The relevant facts are as follow: 1 Section 5(1)(a)(iv) Limitations Act, 2002 S.O. 2002, c. 24, Sched. B.
2 In the spring of 2008 the plaintiffs began looking for new windows and doors to install in a new home they intended to construct. In April 2008 the defendant provided a quotation for the supply of windows and doors to the plaintiffs in the amount of $20,165.90 inclusive of taxes. On June 3, 2008 the plaintiffs purchased windows and doors from the defendant pursuant to the quotation provided. The windows and doors were accompanied by a 20-year plus warranty relating to faulty workmanship or defective material. The warranty provided that the defendant would repair or replace, at its discretion, faulty product it supplied. On July 1, 2010 the plaintiffs took occupancy of their new home. In December 2010 the plaintiffs observed leaking of the windows and doors supplied by the defendant and filed a warranty claim with the defendant alleging the product supplied by the defendant was defective. On March 24, 2011 the defendant sent a representative, Cosimo Stalteri, to the plaintiffs home to inspect the windows and doors. A service appointment was scheduled for April 2011. The service appointment was ultimately cancelled because the defendant was waiting on parts. By August 14, 2011 Mr. Stalteri was no longer employed by the defendant and Jennifer Craig assumed carriage of the plaintiffs warranty claim on that date. On September 9, 2011 Ron Stewart, on behalf of the defendant, attended at the plaintiffs home to inspect the windows and doors. On September 11, 2011 Mr. Stewart submitted a report to the defendant identifying repairs needed to be done and noting that the repairs needed to be done quickly. On October 25 and November 28, 2011, Ed Parsons on behalf of the defendant attended at the plaintiffs home and completed repairs to the windows and doors. Mr. Parsons invoices were paid by the defendant as comprising warranty work. On March 2, 2012 following a rainstorm the plaintiffs observed that the windows and doors were again leaking and other windows supplied by the defendants were also leaking. The plaintiffs left a message with Ms. Craig advising of the problems.
3 On March 3, 2012 the plaintiffs wrote a letter to the defendant which stated, in its entirety, the following: Dear Mrs. Craig: On March 2nd evening at approx. 10:00 pm during the active rainfall, we encountered additional water seeping through the windows and patio door glass again from the windows with an original problem and found additional windows now leaking. The widely spaced visits since September 2011 from your service rep. namely Ed Parsons and his employees, who have addressed several problems, i.e. All of the exterior doors, the front door, a hinge problem on a backdoor, and the several attempts to stop our windows from leaking have failed yet again. We have been as patient as possible but this has gone far enough. We originally contacted your company, namely Cosimo Stalteri in the fall of 2010, and finally started dealing with yourself in the summer of 2011 since nothing was being done from Cosimo s visit because he apparently no longer was employed by your company. Six months has passed since your service rep s first visit in September 2011 that you arranged. The longer your company drags its heels on a solution to our window leakage problem, the more damage this negligence is causing to our home i.e. (exterior stucco, interior walls and subfloors). We currently have exterior stucco water damage that is visible and needs to be repaired and the presently unknown damage this has caused to our walls, under subfloors such as mold and rotting of lumber and plywood. We have checked window jambs with a moisture meter showing a high moisture reading along the bottoms of all windows with the exception of three small single windows. We have taken several pictures with every instance we encountered noticeable water leaking in from the windows even after the first, second and third attempts from your service reps to fix the leaking windows. These windows and doors we purchased from you have been found to be assembled and sealed improperly by your service rep., namely Ed Parsons. Your windows are leaking in water,
4 seals are failing, lock handles keep popping off, screws are rusting, hinges improperly mounted and door body s warped. We cannot wait any longer. We should not have waited this long. New windows need to be installed immediately. We await your response with a written decision via email at manonberta@hotmail.com and a verbal decision at 519-535-2253 on the replacement of the windows and patio doors including style, size and colour we originally purchased (we will not accept painted windows that the paint will peel in time and interior/exterior finish to look like replacement windows), current stucco damage repairs, and any and all labour and materials required to replace the existing windows including exterior stucco trim, interior trim and any and all other damage found due to the water damage from your windows including but not limited to lumber, sheathing, insulation, mold removal, trim work, floor work if necessary, drywall, taping, painting. We have left you a voicemail regarding this on Saturday, March 3 rd. We await your response no later than 4:00 pm on Monday, March 5 th, 2012. If we do not hear from you with a written and verbal decision by the above-stated time, we will be commencing legal action immediately and ordering windows elsewhere, obtaining other sub trades to repair all of the above, etc at your expense including legal costs. We look forward to hearing from you with an immediate plan of action on your part with a reasonable and acceptable timeframe to have these issues rectified immediately. Yours, Manon and Steve Berta (emphasis added) Over the period March 18, 2012 through June 18, 2013 the defendant had representatives attend the property on five separate occasions. Further extensive repairs were completed on the plaintiffs windows and doors and Arcor paid for those repairs pursuant to its warranty obligations.
5 In May 2014 Ms. Craig left her employment with the defendant and Anu Agarwal, Chief Financial Officer of the defendant s parent company, took carriage of the plaintiffs warranty claim. In June 2014, Leo Gelinas, Project Manager with Winmar, who investigated on behalf of the defendant s insurers, attended at the property. In July 2014, Steve Egan with 3M Window Film Solutions attended at the property on behalf of the defendant s insurers and was unable to determine the cause of the problem. On September 23, 2014 Mr. Parsons again attempted to repair the front windows, however on October 3, 2014 the plaintiffs again observed water leaking from the front windows despite his attempted repair. On October 8, 2014 discussions take place between Mr. Agarwal and Roy Rosenboon, VP of insulation sales with the defendant s parent company, about whether to replace or continue to attempt to repair the plaintiffs windows and doors. On November 13, 2014 the plaintiffs attended at the defendant s Toronto offices and met with Mr. Agarwal and delivered template windows for replacement. Mr. Agarwal advised the plaintiffs that he needed further internal approval for the replacement of the plaintiffs windows. Post-November 13, 2014 the plaintiffs make multiple attempts to speak with Mr. Agarwal; however, their calls were not returned. On December 11, 2014 the plaintiffs issued the statement of claim in this action claiming damages for breach of warranty and the defendant s negligence in its efforts to repair the plaintiffs windows and doors. [5] The obligations of the parties pursuant to the warranty are as follow: ARCOR s obligation under this warranty is limited to repairing or, at its option, replacing any window or any part of the window that is defective, PROVIDED that the Owner gives ARCOR immediate written notice of any such defect or defects. ARCOR or dealer distributor shall be allowed a reasonable time after receipt of such notice to remedy the defect, if any, and the Owner agrees to render reasonable and friendly assistance. [6] There is no dispute that the cause of the problems with the windows and doors was related to a manufacturing defect or production issue for which the defendant was,
6 at law, responsible. At no time, did the defendant deny liability for the defective product supplied to the plaintiffs nor did they deny coverage under the warranty. Analysis Test for Summary Judgment [7] Pursuant to r. 20.01(3) of the Rules of Civil Procedure, a defendant to an action may move for summary judgment dismissing all or part of the claim against it. If the court is satisfied there is no genuine issue requiring a trial, the court must grant summary judgment. [8] Hyrniak v. Mauldin 2 is the leading case. Recognizing that affordable and timely access to the civil justice system is paramount, the Supreme Court of Canada has interpreted r. 20.03 to require motions judges to utilize their enhanced powers under Rule 20 to weigh evidence, evaluate credibility and draw reasonable inferences where appropriate in order to expand the cases capable of being disposed of summarily without the need for costly and protracted litigation. [9] This is one of those cases. The facts are not contentious. Credibility is not an issue. It is presumed that the parties have placed before me all relevant and necessary evidence. That is, the plaintiffs have put their best foot forward. It is assumed for purposes of this motion that no better evidence exists upon which to decide the issues. [10] The defendant has met its onus of establishing there is no genuine issue requiring a trial. The onus now shifts to the plaintiffs. Limitations Act, 2002 [11] Section 4 of the Limitations Act, 2002, provides that a claim is statute-barred if an action is not commenced within 2 years following the date on which it is discovered. This motion turns on the issue of the plaintiffs discoverability of their claim for breach of the warranty. [12] When a claim is discovered is determined after applying the criteria set forth in s. 5 of the Limitations Act, 2002, which states: 2 2014 CarswellOnt 640 (SCC).
7 5.(1) a claim is discovered on the earlier of, (a) the day on which the person with the claim first knew, (i) that the injury, loss or damage had occurred, (ii) that the injury, loss or damage was caused by or contributed to by an act or omission, (iii) that the act or omission was that of the person against whom the claim is made, and (iv) that having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and (b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a). [13] On the facts of this case, only clause 5(1)(a)(iv) is in issue. [14] In the March 3, 2012 letter Ms. Berta notes the following breaches of the warranty by the defendant: (a) the failure to remedy problems within a reasonable time; (b) negligent performance of the repair work; and (c) the failure to replace the windows. [15] The plaintiffs complaints related expressly to the negligent warranty work undertaken and the failure to remedy the problems with the defective product within a reasonable time. [16] Ms. Berta acknowledged on her cross-examination that she was not prevented from commencing litigation as she had threatened to do in the March 3, 2012 letter. Ms. Berta further acknowledged that at no time did the defendant agree to extend or suspend the limitation period. [17] While extensive repair efforts were made by the defendant in an attempt to remedy the breaches noted in the March 3, 2012 letter, all of those efforts failed. Despite the defendant s good faith efforts over the ensuing 32 months, the breaches of warranty described in the letter were ultimately never remedied. The Bertas demand for replacement windows was ignored. [18] It is clear on the evidence the plaintiffs had knowledge that litigation, among other remedies, was available to them as a remedy for the damages they had suffered arising from the enumerated breaches of warranty. Rather than commence an action, the plaintiffs chose to allow the defendant 32 additional months to remedy
8 the defects hoping that their further indulgence of time would bring about the desired result. They indulged the defendant at their peril. Their gamble did not pay off. The limitation clock was running and it expired on March 3, 2014. The caselaw is clear the test is whether the plaintiffs knew that litigation was an option available to them not that litigation was the only option available to them. [19] Ongoing discussions, assurances that the problems would be remedied and efforts made to remedy the breach do not toll the limitation period. 3 The Limitations Act is not to be ignored, even where circumstances may be unfortunate and the consequences of its application harsh. 4 The doctrine of estoppel as urged upon me by the plaintiffs has no application in the circumstances. [20] The plaintiffs point out that none of the case law relied upon by the defendant involves a breach of warranty. I concur, however, that is not determinative of the issue. The defendant succeeds on its motion because of the unique circumstances of this case. It defies logic why the defendant did not simply replace its defective product rather than continue its repair dance with the plaintiffs for almost four years. I sense that the overall costs of the attempted repair easily eclipsed the replacement cost of the windows and doors. Leaving that observation aside, the evidence could not be any more clear that the plaintiffs were in a position to commence an action for breach of warranty in March 2012 and they had knowledge that litigation was a remedy available to them. [21] My decision would have been far different had the letter of March 3, 2012 not been written. Had this been a case of the plaintiffs working with the defendant over a period of 4 years to correct the problems without any formal complaint regarding the defendant s obligations under the warranty being made until November 2014, discoverability would have been a genuine issue requiring a trial. It would have been an issue similar to the one addressed in Rittinger Construction Ltd. v. Clark Roofing (Sask.) Ltd. 5 namely, at what point in time did the defendant fail to remedy the defect within a reasonable time? That is not the case before me. The plaintiffs declared that the time spent by the defendant in its attempts to remedy the problems with the windows and doors was unreasonable in their letter of March 3, 2012. [22] The claim is statute-barred. Disposition 3 See Sampson v. Empire (Binbrook Estates) Ltd. 2016 ONSC 5730; Cargojet Airways v. Aveiro Constructors Ltd. 2016 ONSC 2356. 4 Kowal v. Shyiak, 2012 ONCA 512 at para. 20. 5 1968 CarswellSask 85 (CA)
9 [23] The defendant s motion is granted. The claim is dismissed. As the successful party, Arcor is entitled to its costs of the motion and the action. Absent agreement of the parties, written costs of the motion shall be submitted in accordance with the following schedule: (a) defendant s submissions not exceeding 5 pages in length to be served and filed within 15 days; (b) plaintiffs responding submissions not exceeding 5 pages in length, 15 days thereafter; and (c) any reply submissions not exceeding 3 pages in length, 5 days thereafter. [24] The defendant is entitled to its costs of the action as agreed or assessed. Date: November 29, 2016 Justice A. K. Mitchell Justice A. K. Mitchell