Rather than tender such evidence, the Murphy defendants
and the Amerispec defendants simply assert, without further
explanation, that it was impossible for them to have discovered
the identity of the Hart defendants. I do not find this bare assertion sufficient or persuasive, given their knowledge of and expertise in the home inspection business in the Whitby area.
 In my view, the service of Wai-Ping’s statement of defence
and cross-claim in December of 2011, indicating that a prior
home inspection had been undertaken without revealing any
defects in the property, put the Murphy defendants and the
Amerispec defendants on notice of their potential claim against
the Hart defendants. The two-year limitation period in respect of
their claims for contribution against the Hart defendants commenced running as of that date. Over the next two years, they
failed to take any steps to investigate their claim, nor did they
explain why their claim was not reasonably discoverable with the
exercise of due diligence. This included their failure to make any
inquiries of Wai-Ping regarding the prior home inspection during
his October 24, 2013 examination for discovery.
 The claims for contribution were not commenced within
two years of service of Wai-Ping’s statement of defence and cross-claim. These claims are therefore out of time and are dismissed
 I leave it to the parties to determine the quantum of costs.
If they are unable to agree, the Hart defendants may make
costs submissions of up to three three pages (excluding bills of
costs and offers to settle) within 21 days, with the Murphy
defendants and the Amerispec defendants making costs submissions on the same basis within 21 days of the date for the Hart
defendants’ costs submissions.
Automodular Corporation v. General Motors of Canada
Limited et al.
[Indexed as: Automodular Corp. v. General Motors of Canada Ltd.]
2018 ONSC 1640
Superior Court of Justice, Dunphy J.
March 21, 2018
Contracts — Interpretation — Implied terms — Parties entering into
agreement to settle action for lump sum of $7 million — Parties not rais-ing or deciding issue of HST in settlement negotiations — Settlement