Executive Summary: Key Legal and Evidentiary Issues

• Kohltech International Limited moved for partial summary judgment to dismiss Matthew Lohnes' negligence claim as statute-barred under the Limitations of Actions Act, SNS 2014, c. 35 ("LAA").
   
• Central to the motion was whether Lohnes' claim had been "discovered" under s. 8(2)(d) of the LAA — specifically, when he knew or ought reasonably to have known the loss was sufficiently serious to warrant a proceeding.
   
• Both parties agreed there were no disputes of material fact and that the matter turned on a pure question of law, placing the burden on Lohnes to show his pleading had a real chance of success.
   
• Lohnes argued that Kohltech's ongoing warranty assurances to repair the windows and doors rendered his claim not yet "sufficiently serious to warrant a proceeding," relying on Presley v. Van Dusen, 2019 ONCA 66.
   
• The court distinguished Presley on the facts, finding that unlike in that case, Lohnes had no expert-reliance relationship with Kohltech and had already threatened legal action as early as October 2017.
   
• Documentary evidence, including Lohnes' own emails and discovery admissions, overwhelmingly established that he knew the losses were serious enough to warrant litigation well before June 2, 2020.
   

Facts of the case

Matthew Lohnes filed a Notice of Action and Statement of Claim on June 2, 2022, against Kohltech International Limited, alleging both breach of warranty and negligence in relation to the design, manufacture, and installation of doors and windows at a newly constructed home in Porter's Lake, Nova Scotia. Stewiacke Hardware and Building Supplies Limited (carrying on business as Stewiacke Home Hardware Building Centre) and Shane Clements were named as third parties but did not participate in the motion. Kohltech's products were installed at the property in late 2010 or early 2011. Mr. Lohnes first raised concerns about water infiltration through the doors and windows with Kohltech in November 2011, and Kohltech made warranty repairs that same year. The problems persisted, and by 2016, Mr. Lohnes knew the repairs had not been working and that his house project had been delayed by four years. Kohltech agreed to replace the windows and doors beginning in 2017, with reinstallation work carried out between 2017 and 2019. Kohltech provided assurances to Mr. Lohnes between 2017 and 2021 that it would remedy the water ingress issues, but ceased additional servicing of its products around May 2021. Water ingress issues allegedly continued after that date.

Policy and legislative provisions at issue

The motion was governed by the LAA, which prescribes the basic two-year limitation period under s. 8(1)(a), running from the date a claim is "discovered." Under s. 8(2), a claim is discovered on the day the claimant first knew or ought reasonably to have known that: (a) the injury, loss or damage had occurred; (b) it was caused by an act or omission; (c) the defendant was responsible; and (d) the injury, loss or damage was sufficiently serious to warrant a proceeding. The parties agreed that ss. 8(2)(a), (b), and (c) were not in issue on the motion — the dispute turned solely on s. 8(2)(d). The parties also agreed that, based on the June 2, 2022 filing date, the claim must have been discovered by June 2, 2020 at the latest, and that any negligence claims relating to Kohltech's conduct after June 2, 2020 were not time-barred.

Reasoning and analysis

The court applied the summary judgment test from Shannex Inc. v. Dora Construction Ltd., 2016 NSCA 89, as set out at paras. 33–34. The parties agreed on the answers to the first two Shannex questions: there were no genuine issues of material fact, and the matter required a determination of a question of law. The court therefore proceeded to assess whether Lohnes' pleading had a real chance of success on the limitations issue.

Mr. Lohnes relied on Presley v. Van Dusen, 2019 ONCA 66, arguing that Kohltech's ongoing warranty assurances had rendered legal proceedings premature, and that s. 5(1)(a)(iv) of the Ontario Limitations Act — which asks whether a proceeding would be an appropriate remedy — is equivalent to s. 8(2)(d) of the Nova Scotia LAA. The court referred to its own analysis in Install-A-Floor Limited v. The Roy Building Limited, 2022 NSSC 67, which distinguished the two provisions: the Ontario provision asks whether proceeding would be appropriate at the time of discovery, while s. 8(2)(d) is concerned only with the seriousness of the loss — specifically, whether it is sufficiently grave to warrant legal action.

The court found Presley distinguishable on the facts. In Presley, the homeowners relied on the contractor's specialized expertise and were assured the problem could be remedied without cost, making legal proceedings premature. Here, Mr. Lohnes purchased the windows and doors through Stewiacke Home Hardware and they were installed by a third party; his affidavit evidence contained no reference to relying on Kohltech's expertise as unique. Moreover, Kohltech's warranty work addressed only the repair and replacement of the doors and windows themselves — no assurances were ever made regarding the consequential damages Mr. Lohnes claimed. On February 11, 2020, Mr. Lohnes wrote to Kohltech detailing consequential damages totalling over $330,000 incurred over the nine years from installation of the windows and doors, demonstrating he was seeking far more than just repair. Discovery evidence from January 10, 2024 confirmed that by October 2017, Mr. Lohnes knew there were losses due to delay attributable to Kohltech and that the matter was serious enough to consider forwarding to lawyers. An October 12, 2017 email to Kohltech stated he was prepared to proceed to court and had retained McInnes Cooper as his law firm. The court was satisfied that the evidence overwhelmingly established Mr. Lohnes knew — and a person in his situation would reasonably have known — that the loss was sufficiently serious to warrant a proceeding prior to June 2, 2020. The court also addressed the estoppel argument, adopting its own reasoning from Wright v. Ratcliffe, 2023 NSSC 287, aff'd 2024 NSCA 77: the LAA does not permit the limitation period to be waived by estoppel, there was no acknowledgment under s. 20 of the LAA, and no evidence of an express waiver or common mistake as to when the limitation period expired.

Ruling and overall outcome

Justice Scott C. Norton granted Kohltech's motion for partial summary judgment. The court held that Mr. Lohnes had not satisfied the burden of demonstrating his negligence claim had a real chance of success on the limitation issue. The claims by Mr. Lohnes against Kohltech in negligence for acts or omissions prior to June 2, 2020 were dismissed. Kohltech was the successful party on the motion. The breach of warranty claim and any negligence claims arising from conduct after June 2, 2020 were not addressed and remain live. No monetary award was made.