Court of Appeal for Ontario

Date: 2019-05-23 Docket: C65924

Judges: Hourigan, Paciocco and Harvison Young JJ.A.

Parties

Between

Sam Cosentino, on his own behalf and on behalf of all creditors of Dominaco Developments Inc., Anna Cosentino, Cesare Cosentino and Mary Alilovic, the Estate Trustees of the Estate of Domenic Cosentino, Deceased, Cesare Cosentino, Anthony Cosentino, Mario Cosentino, 1183082 Ontario Inc., 1331722 Ontario Inc., 1347482 Ontario Inc. and Pit-On Construction Co. Limited

Plaintiff (Appellant)

and

Dominaco Developments Inc., Cesare Cosentino and Mary Alilovic, the Estate Trustees of the Estate of Domenic Cosentino, Deceased, Anna Cosentino, Cesare Cosentino, Mary Alilovic, Anthony Cosentino, Maria Cosentino, 1183082 Ontario Inc., 1331722 Ontario Inc., 1347482 Ontario Inc., Pit-On Construction Co. Limited and James Arthur MacColl

Defendants (Respondents)

Counsel

Sam Cosentino, acting in person

Michael A. Handler and Emily Evangelista, for the respondents Dominaco Developments Inc., Mary Alilovic, Anthony Cosentino, Maria Cosentino, 1183082 Ontario Inc., 1331722 Ontario Inc., Pit-On Construction Co. Limited

Antonios T. Antoniou, for the respondent James Arthur MacColl

Heard: May 9, 2019

On appeal from the order of Justice William M. LeMay of the Superior Court of Justice, dated August 27, 2018, with reasons reported at 2018 ONSC 5056, and from the costs order dated October 12, 2018, with reasons reported at 2018 ONSC 6064.

Reasons for Decision

(a) Introduction

[1] The appellant brought a motion to amend his statement of claim. That motion was dismissed on the grounds that certain amendments were statute barred and other amendments should await the determination of an outstanding motion for partial summary judgment. The motion judge also awarded costs against the appellant.

[2] The appellant advances multiple grounds of appeal, but they can be distilled to the following two submissions. First, he argues that the motion judge was biased against him. Second, he argues that the motion judge erred in refusing to grant leave to amend the statement of claim. For the reasons that follow, we do not give effect to either submission.

(b) Bias

[3] The evidence and arguments advanced on the bias ground of appeal do not meet the high evidentiary hurdle to establish actual or apprehended judicial bias. Nor do they overcome the strong presumption of judicial integrity: R. v. S. (R.D.), [1997] 3 S.C.R. 484, at paras. 113 and 117.

[4] Properly understood, the complaints made in support of this ground of appeal amount to nothing more than an expression of dissatisfaction with the results of the motion and certain procedural aspects of the hearing. We consider each of the arguments advanced below.

[5] First, the appellant complains that the motion judge permitted counsel for a non-party to make submissions on the motion and awarded costs to his client. The motion judge gave clear and cogent reasons for both permitting counsel to make submissions and awarding costs to the non-party. Those orders were well within the motion judge's discretion to control the process on the motion.

[6] Second, the fact that in his endorsement the motion judge may not have referred to every argument or piece of evidence contained in the appellant's submissions on the motion does not qualify as actual or apprehended bias.

[7] Third, the appellant alleges bias on the ground that the motion judge ordered him to file a blacklined statement of claim to identify his proposed amendments. This was a sensible order given the length of the claim and the breadth of the amendments. Rather than showing bias against the appellant, the order, if followed, would have helped him explain to the court the precise nature of the relief sought on the motion. The appellant refused to comply with the order. The motion judge could have dismissed the motion on that basis alone. Instead, he considered the motion as filed.

[8] Fourth, the appellant submits that the trial judge demonstrated bias because he dismissed the motion against all defendants, even though some of the defendants consented to or did not oppose the motion. This submission ignores the point that it was not open to the motion judge to grant a motion to amend pleadings against some defendants but not against others.

[9] In summary, there is no evidence of actual or apprehended bias on the part of the motion judge. Accordingly, we dismiss this ground of appeal.

(c) Motion for Partial Summary Judgment

[10] In 2016, the appellant brought a motion for partial summary judgment. Substantial time and resources have been expended by the parties in preparing for that motion, including for preparation of affidavit material, documentary production, cross-examinations, and answering undertakings. That motion is still outstanding.

[11] The respondents' position was that the leave to amend motion should be deferred until after the summary judgment motion. The motion judge acceded to that request and ordered that "any otherwise allowable amendments should not be permitted until after the summary judgment motion is heard."

[12] In support of his order, the motion judge stated as follows, at paras. 37-38:

I reach this conclusion for two reasons. First, once a summary judgment motion is brought, then it should be disposed of without a whole series of ancillary motions, if possible. The parties should not be facing an ever changing landscape of pleadings as well as an expanding number of allegations as they prepare for the hearing of a summary judgment motion. Litigation should be conducted in an orderly way wherever possible and Courts have an obligation to control their processes.

Second, the parties have already served and filed significant amounts of material for the summary judgment motion. They will have taken positions on that motion, and provided answers on cross-examination. Changing the pleadings creates a prejudice in terms of the positions that the party responding to the motion has taken in documents filed on the record.

[13] It is important to note that the motion judge did not order that leave to amend could not be sought at a later date, but only that such a motion would have to wait until after the summary judgment motion was heard. This was a discretionary procedural order made by the motion judge. We see no basis to interfere with that order.

(d) Limitation Period

[14] The appellant made two submissions on the motion in support of his position that the amendments were not statute-barred: (i) not all of the proposed claims were new causes of action; and (ii) the respondents failed to establish any prejudice caused by the amendments. The appellant argues that the motion judge erred in rejecting these submissions.

[15] As noted above, the appellant refused to provide an underlined blacklined version of his statement of claim despite an order from the motion judge. On the motion, he filed a schedule to his factum that purported to identify some, but not all, of his proposed amendments. In oral argument on the appeal, he conceded that the following pleadings in the schedule might be seen to be new claims: 8 ("Conveyance-Fourth Land"), 12 ("Conveyance–MacColl's Properties"), and 14 ("Conveyance-Shannon Land"). He suggested, however, that these allegations were encompassed in the general fraud and deceit allegations he made in his prior pleadings. We do not agree. There was nothing in the prior pleadings that addressed these transactions.

[16] The appellant identified two other proposed amendments in the schedule, being 2 ("Clandestine Banking Scheme Involving MacColl") and 36 ("Payments from Corporate Defendants – to Mary, Vinegrove, 1183 and 1331"), that could also arguably be considered to be new claims. However, he submitted that they were not, in fact, new claims but continuations of existing claims. We do not accept that argument. The pleading in item 2 of the schedule relies on the conveyance of the Shannon Land, which the appellant has admitted is a new claim. Further, in his schedule he is unable to identify a pleading in the previous statement of claim that corresponds to the relief sought in proposed amendment 36. We are of the view that both pleadings 2 and 36 are new claims.

[17] A review of items 2, 8, 12, 14, and 36 from the schedule demonstrates that they all involve claims related to transactions and events that took place more than two years before the proposed amendments, in some cases dating back to 1993.

[18] The appellant submits that he has rebutted the presumption in s. 5(2) of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B that a claim is presumed to have been discovered on the date the underlying act or omission took place. In support of that submission, he relies on the following part of his affidavit filed in support of his motion to amend:

As a result of new evidence which has come to my attention, the errors in my existing pleading which have been made inadvertently which came to my attention, and my desire to make my allegations more detailed and better-organized, I considered it prudent to amend my pleading and to add new party defendants, and I am bringing a motion for leave to do so.

[19] The appellant submits that this is uncontroverted evidence and is a sufficient basis to defeat a limitations defence because there is no onus on a plaintiff to rebut the presumption under s. 5(2) of the Limitations Act.

[20] We do not accept that submission. A plaintiff is required to act with due diligence in determining if he or she has a claim. As stated by this court in Longo v. MacLaren Art Centre, 2014 ONCA 526, 323 OAC 246 at para. 42, a "limitation period will not be tolled while a plaintiff sits idle and takes no steps to investigate the matters referred to in s. 5(1)(a)."

[21] There was no evidence tendered by the appellant other than the bald statements in his affidavit to explain why the amendments were not made within two years of the underlying events. In these circumstances, the appellant failed to rebut the presumption in s. 5(2) of the Act. Thus, items 2, 8, 12, 14 and 36 in the schedule are all statute-barred.

[22] The next argument advanced is that the respondents failed to establish sufficient evidence of prejudice to overcome the mandatory requirement that leave to amend be granted under r. 26.01. In rejecting the prejudice argument, the motion judge relied on Frohlick v. Pinkerton Canada Ltd., 2008 ONCA 3, 88 OR (3d) 401. In that case, this court held that the loss of a limitations defence gives rise to prejudice.

[23] The claims were statute barred and the motion judge was correct to rely on Frohlick, which was binding authority. Contrary to the submission of the appellant, the respondents had no obligation to establish prejudice beyond the loss of the limitations defence.

(e) Costs

[24] We are not satisfied that the motion judge erred in his costs analysis and decline to interfere with his costs award.

(f) Disposition

[25] For the foregoing reasons, we dismiss the appeal.

[26] Costs of the appeal should follow the result. The respondents seek costs on a substantial indemnity basis, given what they allege is the appellant's pattern of alleging bias against judicial officers without foundation. There is merit to that submission, but we are of the view that, while the appellant's conduct in this litigation comes close to the line of justifying costs on a higher scale, it does not cross that line.

[27] We award costs of the appeal on a partial indemnity basis payable by the appellant to the respondents represented by Mr. Handler in the amount of $12,500 and to the respondent James MacColl in the amount of $1,250. Both amounts are inclusive of fees, disbursements, and taxes.

"C.W. Hourigan J.A."

"David M. Paciocco J.A."

"A. Harvison Young J.A."