Brian acted for an HVAC company that installed an HVAC system at the plaintiffs’ house. The plaintiffs alleged that there were immediate and ongoing problems with the HVAC system.
A majority of the Ontario Court of Appeal upheld a decision of Justice Monahan dismissing the plaintiffs’ claim on the basis of the plaintiffs missing the limitation period. The Supreme Court dismissed the plaintiffs’ application for leave to appeal.
The following points were highlighted by the Court of Appeal:
- Discoverability means knowledge of the facts that may give rise to a claim.
- The knowledge required to start the limitation clock is more than suspicion and less than perfect knowledge.
- The question of precise causation or “how it happened” will be revealed through the legal proceeding and need not be known in advance for limitation purposes.
- Resorting to legal action may be inappropriate when a plaintiff relies on the superior knowledge and expertise of a defendant, especially when the defendant undertook efforts to ameliorate the loss.
- However, the limitation clock starts to run when the plaintiff no longer relies on the defendant.
- If a defendant’s concealment of facts results in a lack of actual or objective knowledge of a claim, then a plaintiff does not discover a claim until the concealed facts are revealed to or known by the plaintiff.
Brian represented the defendant at all levels of court.