estate agent and company that conducted home inspection before they
purchased property — Previous owner pleading in his 2011 statement of
defence that he retained home inspector when he purchased property in
1995 and that no significant defects were found — Other defendants discovering identity of that home inspector in fall of 2015 and seeking to
assert claims against it for contribution and indemnity in November
2015 — Defendants having been put on notice in 2011 that earlier home
inspection had been conducted but taking no steps to discover identity
of inspector despite their own familiarity with local home inspection
market — Defendants not exercising due diligence — Claims for contribution and indemnity statute-barred.
After discovering an underground storage tank on their residential property,
the plaintiffs commenced an action in May 2011 against the previous owner W,
their own real estate agents (the “Murphy defendants”) and the company that
had conducted a home inspection of the property before they purchased it (the
“Amerispec defendants”). In his 2011 statement of defence, W pleaded that he
retained a home inspector to conduct an inspection of the property when he purchased it in 1995 and that no significant defects were found. At his examination
for discovery, W stated that he could not recall the name of the home inspector.
There was no evidence that the Murphy defendants or the Amerispec defendants made any attempt to ascertain the identity of the home inspector. In the
fall of 2015, W found a copy of the 1995 home inspection report, which was prepared by Hart, and delivered a copy to the Murphy defendants and the Amerispec defendants. In November 2015, the Murphy defendants and the Amerispec
defendants sought to assert claims against Hart for contribution and indemnity.
Hart brought a motion to dismiss those claims on the basis that they were
Held, the motion should be granted.
Claims for contribution and indemnity are not subject to an absolute two-year
limitation period commencing on the delivery of a claim against the first alleged
wrongdoer. Rather, the discoverability principle applies to claims for contribution and indemnity. The Murphy defendants and the Amerispec defendants did
not have actual knowledge of the facts necessary to make a claim for contribution and indemnity against Hart prior to late 2015. Their claims for contribution
and indemnity were not barred by s. 5(1)(a) and s. 4 of the Limitations Act,
2002, S.O. 2002, c. 24, Sch. B. However, s. 5(1)(b) of the Act provides that a claim
will be “discovered” on 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 [5(1)(a)]”. The Murphy defendants and the
Amerispec defendants were put on notice through the defence filed by W in 2011
of the fact that a previous home inspection was conducted. They took no steps to
ascertain the identity of the home inspector, despite their familiarity with the
local home inspection market. They did not exercise due diligence. Their claims
for contribution and indemnity were therefore statute-barred.
Demide v. Canada (Attorney General),  O.J. No. 2611, 2015 ONSC 3000,
50 C.C.L.I. (5th) 74, 47 C.L.R. (4th) 126, 254 A.C. W.S. (3d) 692 (S.C.J.); Fennell v.
Deol,  O.J. No. 1745, 2016 ONCA 249, 97 M.V.R. (6th) 1, 265 A.C.W.S. (3d)
1029; Miaskowski (Litigation guardian of) v. Persaud,  O.J. No. 1208, 2015
ONSC 1654 (S.C.J.); Placzek v. Green,  O.J. No. 326, 2009 ONCA 83,
307 D.L.R. (4th) 441, 69 C.P.C. (6th) 42, 245 O.A.C. 220, consd
Galota v. Festival Hall Developments Ltd. (2016), 133 O.R. (3d) 35,  O.J.
No. 3906, 2016 ONCA 585, 58 C.C.L.I. (5th) 78, 53 C.L.R. (4th) 175, 352 O.A.C.