Lev v. Serebrennikov, 2016 ONSC 2093
CITATION: Lev v. Serebrennikov, 2016 ONSC 2093
DIVISIONAL COURT FILE NO.: 320/15
DATE: 20160323
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
BORIS LEV Plaintiff (Respondent)
– and –
MICHAEL SEREBRENNIKOV Defendant (Appellant)
COUNSEL:
Jessica E. Frymer, for the Plaintiff (Respondent)
Mark A. Wiffen, for the Defendant (Appellant)
HEARD at Toronto: March 23, 2016
ORAL REASONS FOR JUDGMENT
PATTILLO J. (ORALLY)
[1] Michael Serebrennikov (the “Appellant”) appeals from the judgment of Deputy Judge Bocci of the Toronto Small Claims Court dated May 22, 2015 granting judgment in favour of the plaintiff, respondent on appeal, Boris Lev (the “Respondent”) in the amount of $20,000 plus pre-judgment interest at the contractual rate of 12% per annum calculated from December 1, 2012, post-judgment interest pursuant to the Courts of Justice Act and court filing fees.
[2] The appellant raises one issue on appeal. He submits that the trial judge erred in law in finding that part payment by 5001.com was sufficient to extend the limitation period in respect of a claim against the appellant.
[3] The issue on the appeal is an issue of law and therefore the standard of review is correctness.
[4] In July 2011, the respondent lent $20,000 to the appellant and 5001.com, secured by a promissory note dated July 3, 2011 and executed by the appellant on behalf of himself and 5001.com (the “Note”). The monies were advanced to 5001.com.
[5] The Note provided that both the appellant and 5001.com promised to pay the respondent the principal amount of $20,000 together with interest at 12% per annum by December 3, 2011.
[6] The appellant and 5001.com made interest payments on the loan by cheque drawn on 5001.com’s bank account and by cash. The last interest payment was made on November 3, 2012.
[7] The respondent commenced his claim for repayment of the loan and accrued interest on January 31, 2014.
[8] In her Reasons for Judgment, the trial judge found on the evidence that the last payment on the loan was November 3, 2011, resulting in the two year limitation period not expiring until November 3, 2014. Accordingly, the trial judge held the respondent’s action was commenced well within the limitation period.
[9] In general, the limitation period for a debt repayable on a fixed date commences on the repayment date. Section 13(1) of the Limitations Act, 2002, S.O. 2002, c. 24 (the “Act”) provides in part that if a person acknowledges liability in respect of a claim for payment of a liquidated sum, the act or omission on which the claim is based shall be deemed to have taken place on the day on which the acknowledgement was made. Section 13(10) of the Act provides, in part that s. 13(1) does not apply unless the acknowledgement is in writing and signed by the person making it or the person’s agent.
[10] Finally, s. 13(11) of the Act provides that in the case of a claim for payment of a liquidated sum, part payment of the sum by the person against whom the claim is made or by the person’s agent has the same effect as the acknowledgement referred to in s. 13(10).
[11] The appellant submits that because the interest cheques came from 5001.com, the acknowledgement by payment only extends the limitation period for that company and not for the appellant in accordance with s. 13(11) of the Act. See too: Cleland Metal Products Ltd. v. Proctor, 2016 ONSC 1679.
[12] The respondent testified that the appellant asked him to lend the money and that the appellant paid interest up to December 2012 (p. 13 of the Evidence).
[13] At all material times, the respondent understood that 5001.com was the appellant’s company. The cheques were signed by the appellant. The evidence indicates they were delivered by the appellant. The respondent testified that in addition to receiving cheques he also received a couple of payments from the appellant in cash.
[14] The appellant said the company was his wife’s company but produced no documents to confirm.
[15] The issue of the limitation period was not front and centre at the trial. The appellant spent most of his time dealing with his defence that he’d had an arrangement with another company. The appellant didn’t give any evidence on the limitation issue in chief. It was only when the trial judge allowed the appellant to testify a second time at the end of the trial that the limitation defence was raised. The basis of the defence was that the claim had been commenced more than two years after the date of the loan in the Note. When asked by the trial judge when the last payment on the Note was, the appellant said he couldn’t remember.
[16] In my view, based on the evidence, payment on the Note amounted to an acknowledgement of the debt by both the company and the appellant. All the respondent’s dealings concerning the loan were with the appellant. There was no indication the company was other than the appellant’s. The appellant signed the cheque from the company in evidence. The appellant also paid the respondent in cash a couple of times. In such circumstances, it is reasonable to infer that payment on the debt was on behalf of both the appellant and the company, regardless of who paid it. Accordingly, the trial judge was correct in concluding on the facts as she found them that the limitation period had not expired against the appellant based on the past payment date.
[17] I am also of the view that the trial judge’s decision that the limitation period had not expired was correct on the evidence for another reason.
[18] On November 11, 2012, the appellant sent the respondent an email which stated, in part: “I do would like to acknowledge the $20,000 you did give me, and I hope to re-pay back with in 2 month”.
[19] The email was marked as exhibit “4” at the trial and the respondent testified that the appellant acknowledged that he received the $20,000 and promised to pay it back. The appellant did not deny that he sent the email or acknowledged the debt during his testimony. He simply did not address it although he had ample opportunity to do so.
[20] The email constitutes a clear unconditional acknowledgement by the appellant to repay the $20,000. The email is in writing but is not “signed” by the appellant. Accordingly, the appellant submits that given s. 13(10) of the Act, it does not amount to an acknowledgement pursuant to s. 13(1).
[21] The cases in Ontario dealing with whether an email constitutes an acknowledgement in writing signed pursuant to s. 13 of the Act go both ways. In Toronto Common Elements Condominium Corp. No. 2041 v. Toronto Standard Condominium No. 2051, 2015 ONSC 4245 (S.C.J.), D. L. Corbett J. found, among other reasons, that an email did not comply with s. 13(1) of the Act because it was not signed. He also noted that the email did not acknowledge any particular amount owing and in any event was outside the limitation period.
[22] In (Re) Temple, 2012 ONSC 376, [2012] O.J. No. 856 (S.C.J.), Newbould J. considered the question of acknowledgement of a debt in connection with a bankruptcy proceeding. At para. 33, Newbould J. stated that an email acknowledging the debt with the individual’s name on the email was a sufficient signature within the requires of the Act.
[23] The appellant has directed me to Mehta v. J. Pereira Fernandes S.A., [2006] EWHC 813 (Ch), a decision of the English High Court of Justice, Chancery Division which considered, among other things, whether an email address was a sufficient signature for the purposes of s. 4 of the UK Statute of Frauds Act. The action was on a guarantee given by email. The decision deals in some detail with the issue of what constitutes a signature on an email. While the decision is not binding and does not deal with the issue of acknowledgement of the debt to extend the limitation periods, it does point out the concerns arising from the use of email in commerce, the principle of which is authenticity.
[24] In my view, an email can satisfy the requirements of s. 13 of the Act concerning acknowledgement. The issue in every case will be one of fact concerning authenticity.
[25] Turning then to the facts in the present case, although the email in question is not signed by the appellant with his signature, his name is on the email and based on the other emails filed as exhibits, it was clearly sent by him from his email address which is noted. Again, the appellant did not deny that it was his email at trial. Finally, the acknowledgement is within the original limitation period. All of that is sufficient, in my view, to bring the matter in this case within s. 13(10) of the Act and to extend the limitation period for the debt from November 11, 2012 pursuant to s. 13(1).
[26] I do not fault the trial judge for not picking up on this point. Both the appellant and the respondent were unrepresented at trial and presented their own case before her. In the circumstances, she did an excellent job of sorting through the issues while being fair to both sides.
[27] The appeal is therefore dismissed.
Costs
[28] I have endorsed the Appeal Book, “For oral reasons given in Court, appeal dismissed. Costs to the respondent on a partial indemnity basis, fixed at $2,300 inclusive of disbursements and taxes.”
PATTILLO J.
Date of Reasons for Judgment: March 23, 2016
Date of Release: March 30, 2016
CITATION: Lev v. Serebrennikov, 2016 ONSC 2093
DIVISIONAL COURT FILE NO.: 320/15
DATE: 20160323
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
L. A. PATTILLO J.
BETWEEN:
BORIS LEV Plaintiff (Respondent)
– and –
MICHAEL SEREBRENNIKOV Defendant (Appellant)
ORAL REASONS FOR JUDGMENT
L. A. PATTILLO J.
Date of Reasons for Judgment: March 23, 2016
Date of Release: March 30, 2016