Motion judge erred in ignoring uncontested sworn evidence

BUILDING CONTRACTS

Motion judge erred in ignoring uncontested sworn evidence

Appellants purchased house from defendants and later discovered structural problems. Expert report identified problems including load-bearing ability of roof and recommended further investigation. Appellants brought action against vendors, their realtor, two real estate agents and City. Second expert report identified further problems and raised safety concerns about roof. One of defendants testified that respondents designed house and prepared working drawings. Appellants moved to amend claim to add respondents as defendants for negligent design of house causing it to be danger to safety. Respondents brought motion for summary judgment. Motion judge granted summary judgment dismissing claim on basis it was barred by limitation period. Plaintiffs appealed. Appeal allowed. Summary judgment was set aside. Motion judge erred in ignoring uncontested sworn evidence on central matter in issue without giving any reasons for so doing. Motion judge did not refer to lawyer’s affidavit that indicated second report was first information that house might be dangerous by design.
O’Dowda v. Halpenny (Jan. 19, 2015, Ont. C.A., K.M. Weiler J.A., K. Feldman J.A., and M.L. Benotto J.A., File No. CA C59091) 248 A.C.W.S. (3d) 816.