In Wilhelm Concrete v. Shackelton, 2025 ONSC 3071, the Superior Court considered defective construction of grain silos, unpaid invoices and the application of limitation periods, offering practical reminders for contractors and property owners regarding the importance of clear contractual terms, diligent record-keeping, and evidentiary expectations to support claims in construction litigation.
Background
Wilhelm Concrete concerned the construction of four large grain silos at a farming and grain trading facility operated by College Grain Inc. ("College Grain") in Aylmer, Ontario. Between 2014 and 2018, 634573 Ontario Limited o/a Wilhelm Concrete ("Wilhelm Concrete"), a family-run business, entered into a series of fixed-price contracts with College Grain for the construction of these silos. Each agreement was executed between the principals of Wilhelm Concrete and College Grain. The contracts were all signed in the same manner, referencing only Wilhelm Concrete's numbered company but omitting any reference to College Grain's principal in his personal capacity.1
Silo 1 was constructed under an agreement dated March 20, 2014, for $222,878.20, while Silo 2 was completed shortly thereafter for $210,500.00. Silo 3 followed under a contract dated March 29, 2017, for $205,000.00, and Silo 4 was constructed under a contract dated March 1, 2018, for $200,000.00. Upon completion, each silo was put into immediate service for the storage of grain.
In 2015, College Grain notified Wilhelm Concrete that Silo 2 was leaking. Wilhelm Concrete made informal efforts to address Silo 2's leaks, including applying Pavix (a waterproofing sealant) to its exterior in June 2019.2 This was not part of a comprehensive remediation program, but rather an isolated attempt to address water infiltration.3 Similarly, Wilhelm Concrete hired Bauer & Bauer Contractors Ltd. to apply a sealant to Silo 4's roof in 2018 to address cracking due to a dry concrete pour.4 These efforts were not formalized repair plans and lacked structured agreements or timelines.5
Wilhelm Concrete commenced litigation in November 2019 – against both College Grain, and its president in his personal capacity – to recover $97,754.04 in unpaid invoices for work performed on the silos, plus an additional $8,020.19 for the Pavix sealant application on Silo 2. College Grain counterclaimed for damages exceeding $200,000 on the basis of construction deficiencies, alleging consequential damages including grain spoilage, loss of profit, beetle infestation, increased labour costs, and anticipated future repairs. The trial was conducted under Rule 76's simplified procedure over four days in January of 2025.6
Legal Issues
The following issues were before the Court:
- Were there construction deficiencies in Silos 2 and 4?
- If so, what is the appropriate quantum of damages?
- Was College Grain's claim regarding Silo 2 barred by the expiry of the two-year limitation period?
- What amount was owed to Wilhelm Concrete for unpaid invoices?
- Could the president of College Grain be held personally liable for any part of the debt?
The Superior Court's Decision
Construction Deficiencies
The Court found that Silos 2 and 4 were affected by water infiltration caused by construction defects. The Court was particularly persuaded by the testimony of College Grain's building envelope engineer, who had over three decades of experience with water ingress and concrete weatherproofing. The building envelope engineer had inspected Silo 2 twice, in 2020 and 2021, and documented water infiltration through cold joints at multiple levels. He testified that such leakage was consistent with the absence of waterstops (plastic barriers placed between cold joints to prevent water seepage), or improper bonding between concrete pours. His evidence was supported by photographic and video documentation.7
In contrast, Wilhelm Concrete's expert was a structural engineer without direct experience in building envelope systems. His site visit occurred during dry conditions, and his inspection was limited by the fact that both silos were more than half full at the time. The Court found that his analysis, while competent in structural terms, lacked reliability and persuasiveness on the narrow question of water ingress.8
The Court also drew an adverse inference from Wilhelm Concrete's failure to call any of the 15 employees involved in constructing Silo 2, including the on-site manager or the son of Wilhelm Concrete's Principal, who was known to have been present during inspections. The Court concluded that water infiltration in Silo 2 was caused by improper construction at cold joints, while the leak in Silo 4 originated from the roof, which was acknowledged by Wilhelm Concrete.9
Quantum of Damages
The Court assessed damages aiming to compensate College Grain for costs incurred due to Wilhelm Concrete's defective workmanship. The Court accepted that College Grain was entitled to recover damages for the cost of repair and increased labour, which were supported by expert testimony and firsthand evidence, but rejected the majority of consequential damages due to insufficient documentary evidence or third-party corroboration.10
Repairs to Silo 2: College Grain's expert provided two cost estimates for remediation. The Court selected the less aggressive "route and seal" option, which involves grinding down concrete joints and applying an elastomeric waterproof sealant, but discounted it by 75%, finding that the expert's proposal to treat all 27 joints was an overestimate. The Court awarded $70,872.19 for repairs.11
Labour Costs: College Grain claimed $56,700 for manual cleaning of clumped grain inside Silo 2 over nine years, calculated based on an average of five hours per week during a 42-week grain handling season at $30.00 per hour. The Court accepted the evidence of a College Grain employee, who testified to frequent post-rainfall cleanings. This amount was awarded in full.12
Future Repairs for Silo 4: Applying Rule 53.09 of theRules of Civil Procedure, which uses a present-value methodology with a 1.0% discount rate for the first 15 years and 2.5% thereafter, the Court awarded $50,325.15 for periodic re-application of waterproofing sealant over the silo's lifespan.13
Claims for beetle-related fumigation ($3,750) were dismissed due to insufficient evidence linking the infestation to construction defects, and claims for rejected grain loads and general spoilage (claimed at $202,500) were rejected for lack of documentary evidence or third-party corroboration from purchasers like flour mills or pet food manufacturers.14
In total, the Court awarded College Grain $177,897.34, including HST, for repair costs, labour, and future maintenance.15
Limitations Period
The Court held that College Grain's claim regarding Silo 2 was not statute-barred. Applying the Court of Appeal's reasoning in Presley v. Van Dusen,16 the Court found that College Grain relied on Wilhelm Concrete's assurances and attempts to remedy the leak. The two-year limitation period did not begin until it became clear in August 2019, following the unsuccessful application of Pavix, that Wilhelm would not be undertaking further repairs.17
The Court assessed the discoverability criteria under s. 5(1) of the Limitations Act, 2002 and found that the claim was brought in time. The Court also rejected Wilhelm's alternate theory that the limitation period began in 2017 when it first denied fault.18
Amount Owed to Wilhelm Concrete
The Court found that College Grain owed $97,754.04 in unpaid construction invoices. However, the $8,020.19 claimed for the sealant was disallowed because the work did not resolve the defect, nor did College Grain receive any lasting benefit from it.19
The Court declined to award 18% contractual interest, as Wilhelm Concrete failed to establish that College Grain had agreed to those terms. The Court applied 2% pre-judgment interest under theCourts of Justice Act.20
Personal Liability
The Court found that the president of College Grain acted at all times in his corporate capacity, given that all invoices, contracts, and dealings were with the corporation, not the individual. There was accordingly no basis for personal liability against the president of College Grain.21
Commentary
The decision in Wilhelm Concrete provides practical reminders for navigating construction disputes, emphasizing the importance of expert selection, presentation of fact evidence and the proper calculation of limitation periods.
A key takeaway is the importance of contemporaneous evidence, including audio-visual evidence, in construction defect claims, as well as the risks of declining to proffer other evidence. College Grain met its burden of proving deficiencies, bolstered by Wilhelm Concrete's failure to call employees. As always, detailed contemporaneous records are best practice, while audio-visual evidence (as the saying goes) is worth a thousand words. Owners, like College Grain, benefit from preserving photographic and video evidence, which significantly strengthened their case.
In addition, the Court's rejection of Wilhelm Concrete's 18% interest claim touches on a not-uncommon phenomenon seen on many construction projects, whereby a contract will stipulate a certain amount of interest (typically somewhere around the prime rate plus 1-2%), while monthly invoices rendered by a subcontractor or supplier will stipulate a much higher rate of interest. Unsurprisingly, the Court was not persuaded by the rate of interest included in the invoices, given that it was not included in (and was in fact contradicted by) the contracts at issue. Wilhelm Concrete is therefore a helpful decision in that regard, as this issue of interest rate discrepancies is not an unusual one.
Finally, the Court's reminder of the proper calculation of the limitation period is equally helpful, in that this issue arises with surprising frequency despite the clarity provided by the case law (including Presley v. Van Dusen). Wilhelm Concrete's repair attempts delayed discoverability until August 2019, when the Pavix application failed. On the other hand, however, this is also a helpful reminder for defendants as to the risks associated with attempting to resolve disputes (including, in this case, defects) without a clear deadline, as it may create uncertainty as to the start of the limitation period.
Ultimately, Wilhelm Concrete reinforces foundational principles for the construction industry: parties must document work thoroughly, and secure suitable expert testimony, to support or defend against claims.
Footnotes
1. Wilhelm Concrete v. Shackelton, 2025 ONSC 3071 at paras 7, 9, 11, 14, 16, 153 ("Wilhelm Concrete").
2. Ibid at para 19.
3. Ibid at para 126.
4. Ibid at para 18.
5. Ibid at para 127.
6. Ibid at 4-5, 20, 22, 83, 132, 135-136.
7. Ibid at paras 24, 28, 35-41, 51-54, 78.
8. Ibid at paras 42-50, 51-52.
9. Ibid at paras 28, 56, 58-60, 77-78.
10. Ibid at paras 79-82, 94, 99, 107, 112.
11. Ibid at paras 84-86, 89-94.
12. Ibid at paras 95-99.
13. Ibid at paras 108-112.
14. Ibid at paras 100-107.
15. Ibid at para 156.
17. Wilhelm Concrete at paras 113, 121-130, 132-133.
18. Ibid t paras 115-120, 134.
19. Ibid at paras 135-136, 156.
20. Ibid at paras 137, 142-147, 156.
21. Ibid at paras 148-155.
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