Part 23 published on 01/09/08
Separate limitation period for each independantly discoverable construction defect
The condominium corporation brought a claim respecting three different construction defects. One of the defects was discovered in 1993 and the other two were discovered in 1996. The trial judge held that each defect gave rise to a separate cause of action. Therefore, according to the trial judge, the limitation period had not expired in relation to the defects discovered in 1996. Only the claim respecting the defect discovered in 1993 was statute-barred.
On appeal, the Court of Appeal upheld the decision of the trial judge and confirmed that independently discoverable construction defects may give rise to separate causes of action even if they are caused by a single act of negligence. However, the Court added the following words of caution:
- · “That said, trial judges must be careful to ensure that the deficiencies in question are clearly independently discoverable. Failure to do so could undermine the need for finality in litigation.”
- · “A party should not be allowed to pursue a claim, in a separate action, for damages based on a construction defect arising from the same act of negligence, where the damages sought are simply an attempt to litigate an issue that could have been previously pursued.”