Court File and Parties

Court of Appeal for Ontario Date: 20230228 Docket: C69891

Harvison Young, Thorburn and Copeland JJ.A.

Between:

Gilles Maisonneuve and Lyse Maisonneuve Plaintifs (Appellants)

and

Jean Maisonneuve, Gro-Net Financial Tax & Pension Planners Ltd., Centa Real Estate Ltd. and Plum Financial Planning Ltd. Defendants (Respondents)

Counsel: Stéphane Hutt and Émilie Leblanc Lacasse, for the appellants Jean-Simon Schoenholz, for the respondent Jean Maisonneuve Theresa Hartley, for the respondents Gro-Net Financial Tax & Pension Planners Ltd. and Plum Financial Planning Ltd.

Heard: February 22, 2023

On appeal from the judgment of Justice Robert Pelletier of the Superior Court of Justice, dated May 25, 2022.

Reasons for Decision

[1] The appellants purchased investment properties on the advice of their former accountant, Jean Maisonneuve, who at the time was an employee of the corporate respondents. The transactions were conducted in 2013 and 2014. These investments proved to be unsatisfactory, and the appellants ended their relationship with the respondents in the spring of 2016. On January 29, 2019, the appellants commenced an action against Jean Maisonneuve and the corporate respondents alleging that they had suffered losses of $1.75 million as a result of the respondents’ negligence, breach of contract, misrepresentations, and breach of fiduciary duty arising from Jean Maisonneuve’s conflict of interest. The respondents brought a motion for summary judgment on the basis, in part, that the claim was statute-barred. The motion judge granted the motion on that basis and dismissed the action.

[2] The appellants submit that the motion judge erred in dismissing the action and seek leave to introduce fresh evidence. For the following reasons, we would dismiss the fresh evidence motion as well as the appeal in its entirety.

[3] The appellants submit that the motion judge erred in finding that there was no genuine issue for trial on the grounds that the limitation period had begun to run as early as March 2016, and certainly no later than December 2016. They argue that he fell into palpable and overriding error in doing so. They also seek to adduce fresh evidence, which shows that Fernando Bada was not a Certified Financial Planner for the corporate defendants during the period of the plaintiffs’ investments between 2014 and 2016 as the prospectus indicated, because his certificate had been cancelled in April 2009. The appellants only learned of this in September 2021.

[4] Beginning with the fresh evidence, we are satisfied that it does not meet the test set out in Palmer v. The Queen, [1980] 1 S.C.R. 759. Even if the fresh evidence meets the due diligence aspect of the test, we do not accept the appellants’ submission that it moved the date of discoverability of the cause of action. The heart of the cause of action as set out in the statement of claim was negligence, negligent misrepresentation, breach of contract and breach of fiduciary duty arising out of the advice and assurances allegedly given to the appellants by Jean Maisonneuve which led them to make the investment decisions. The relevance of Mr. Bada’s status as described in the prospectus to the causes of action described in the statement of claim is so tenuous as to be non-existent. It is not a material fact in relation to the pleaded causes of action. The fact that the prospectus was referenced in the statement of defence does not change this. The fresh evidence could not have affected the motion judge’s determination of the summary judgment as required under the fourth branch of the Palmer test.

[5] Nor do we see any reversible error in the motion judge’s determination that the action was statute-barred and that there was no genuine issue requiring a trial.

[6] In general, the appellants argue that, as unsophisticated investors, they did not know that a proceeding would be “appropriate” by December 2016 and thus fell within s. 5(1)(a)(iv) of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. They submit that the limitation period should not have begun to run until January 30, 2017, when they learned that Jean Maisonneuve had, for a period, been a shareholder of Gro-Net. However, the evidence showed that by the spring of 2016, the appellants had refinanced their portfolio and obtained a mortgage on their residence to cover their losses, and had severed their relationship with the respondents.

[7] The motion judge found that it was clear on Gilles Maisonneuve’s own evidence that he considered Jean Maisonneuve to be responsible for the losses which he and his wife had suffered. The fact that Gilles Maisonneuve stated that, in February 2016, he did not necessarily think that a claim against the appellants would be an “appropriate” remedy, did not fall within the discoverability exception set out in s. 5(1)(a)(iv). The motion judge found as fact that by the spring of 2016, “all requisite determinations [had] been made by the Plaintiffs”. He concluded:

The entire record of proceedings on the issue of the Plaintiffs' grievance and the timing of such realizations can leave no doubt that by the Spring of 2016, the losses had crystalized and those responsible, in the view of the Plaintiffs, were identified and actionable.

[8] These findings of fact were available to the motion judge on the record before him and led directly to his conclusion that the limitation period began to run no later than December 2016.

[9] The appellants point to only one specific error, arguing that the motion judge did not sufficiently address the question of conflict of interest in relation to the breach of fiduciary duty claim, and in particular, the fact that Jean Maisonneuve became a shareholder of Gro-Net, one of the corporate respondents. We disagree.

[10] The motion judge noted that the impact of the discovery of the changed status of Jean Maisonneuve had been neither plead nor referenced in the appellant’s factum before him on the motion. He noted that at the time that the investments had been made by the appellants, Jean Maisonneuve was not a partner, although it was possible that such discussions were being held during that period. He held that, in any event, the appellants knew through a letter sent to them dated November 22, 2016 that Jean Maisonneuve had been a partner of Gro-Net. The motion judge observed that the evidence was “somewhat vague” as to whether and when that letter was received, but concluded that:

The issue of conflict of interest, not having been plead, sufficiently developed and supported by case law, and inferentially within the knowledge of the Plaintiffs by December 2016, cannot result in the extension of the operative date on the limitations period to January 30, 2017.

[11] We see no error in this finding of fact. Contrary to the appellants’ submission before us, the inference that they had received the November 22, 2016 letter was open to the motion judge. He inferred that they had received it on the basis that the letter was sent to the same address as their regular statements, which they acknowledged receiving.

[12] In short, we find no reversible error in the motion judge’s determination that the limitation period expired by December 2018 and that the respondents’ summary judgment motion should be granted.

Disposition and Costs

[13] The motion to admit fresh evidence is dismissed, as is the appeal.

[14] Costs of the appeal are payable by the appellants to the individual respondent Jean Maisonneuve in the amount of $8,500, and to the corporate respondents in the amount of $4,000, both inclusive of disbursements and HST.

“A. Harvison Young J.A.”

“J.A. Thorburn J.A”

“J. Copeland J.A.”