Carleton Condominium Corporation No. 21 v. Minto Construction Ltd. Ontario Court of Appeal

On appeal, the decision of the trial judge was upheld in its entirety. The key elements of the trial Court decision were as follows: 

• The condominium corporation had brought a previous Court action against the builder, in 1986.  That action had been dismissed on consent.  The builder argued that the condominium corporation could not assert a further action – in 1995 – because the claims were included (or should have been included) as part of the previous court action.  The court denied this defence.  The court found that the structural problems that were the subject of the 1995 action could not have been discovered by the condominium corporation through reasonable diligence, at the time of the 1986 action.  Therefore, this defence (res judicata) could not succeed in this case.

• The court also said that the structural problems could not reasonably have been discovered prior to 1993. Therefore, the limitation period for commencement of the action started to run in 1993, at the earliest.  The Court claim was accordingly commenced before expiry of the limitation period.

• The court said that the builder was liable for breach of express warranty (based upon the specific warranty provision in the agreement of purchase and sale) as well as negligent construction.

• The court said that the condominium corporation’s damages relating to re-cladding the building should be reduced by the amount that the corporation would in any event be required to set aside for re-cladding, based upon the fact that re-cladding the building would have been required, in the normal course, by 2004.