Determination that action brought within limitation period made for purpose of amending statement of claim only

In 2004, plaintiff municipality retained consultant to prepare proposal for rehabilitation of bridge. Consultant proposed three alternatives but recommended third, overlaying entire deck with hydrophobic concrete, eliminating need for waterproofing membrane, which municipality accepted. Municipality retained defendant contractor to carry out work with product provided by defendant supplier in 2005. Concrete deficiencies were discovered in 2006 and repaired by contractor in 2007. When deficiencies were discovered again in 2008, contractor refused to undertake further repairs claiming deficiencies were result of consultant specifying inappropriate product. In 2010, municipality brought action for damages against contractor and supplier. Supplier issued third party claims against product manufacturers. Consultant continued to assure municipality that deficiencies were result of poor workmanship by contractor. In 2014, contractor and municipality both obtained expert reports suggesting that product recommended by consultant was not as impermeable to moisture as advertised and should not have been used. Municipality successfully brought motion to amend statement of claim to add consultant as defendant. Consultant appealed. Appeal quashed. Trial judge’s determination that action was brought within limitation period was made for purposes of motion only. Motion judge was satisfied that, for purposes of determining whether to add consultant as a party, limitation period had not expired. Order under appeal was interlocutory. This court had no jurisdiction to hear appeal. Consultant may, if so advised, seek leave to appeal in Divisional Court, or it may raise limitations argument at trial.

Prescott & Russell (United Counties) v. David S. Laflamme Construction Inc. (2018), 2018 CarswellOnt 8543, 2018 ONCA 495, Doherty J.A., H.S. LaForme J.A., and Himel J. (ad hoc) (Ont. C.A.).