CITATION: Monaghan v. Kent, 2016 ONSC 7290
DIVISIONAL COURT FILE NO.: 510/16 DATE: 20161110
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
DAMBROT, RADY and THORBURN JJ.
BETWEEN:
CLIFFORD TODD MONAGHAN
Plaintiff/Appellant
– and –
MARK STEPHEN KENT and ADAM MITCHELL ROSE
Defendants/Respondents
Patricia Virc, for the Plaintiff/Appellant
Clifford I. Cole and Natasha Carew, for the Respondent, Mark Stephen Kent
HEARD at Toronto: November 10, 2016
RADY, J. (Orally)
[1] The Appellant appeals from the decision of Penny J. dated February 16, 2016 dismissing part of his claim for an oppression remedy as statute barred.
the motion
[2] The Appellant is a 34% shareholder in Laurier Capital Holdings Inc. He claims (among other things) that Laurier diluted its ownership share in the one of its subsidiaries, Portfolio Strategies Securities Inc.
[3] Following examinations for discovery, the Respondents moved for summary judgment. They submitted that the Appellant knew about the Portfolio dilution transaction in March or April 2011. The claim was not started until May 2014 and was therefore out of time.
[4] The Appellant responded that there was a genuine issue requiring a trial, namely when he discovered the claim. He said that he did not have sufficient particulars of the transaction that would alert him to a cause of action; information had been withheld from him; the transaction was not confirmed until 2014; and the form of the transaction was not as originally contemplated.
the decision
[5] The motions judge reviewed the legal framework for motions for summary judgment and the limitations issue. He set out the principles governing the discoverability of a cause of action.
[6] With that foundation, the motions judge examined the evidentiary record before him, including the Appellant’s examination for discovery and his counsel’s 2011 correspondence to Laurier and the Investment Industry Regulatory Organization of Canada. In March 2011, and after the Appellant received a letter of intent respecting the Portfolio dilution transaction, his counsel wrote to Laurier advising that the Appellant would seek remedies through IIROC and the courts unless a certain undertaking was given. None was forthcoming and remedies were pursued through IIROC.
[7] Counsel wrote to IIROC again on April 5, 2011 and May 19, 2011 about the transaction. As the motions judge noted, IIROC maintained the position that the complaints were not within its authority.
[8] Based on his review of the record, the motions judge concluded that the Appellant was aware of the constituent elements of his claim between January and May 2011, as reflected in counsel’s correspondence during that time - more than three years before the claim was commenced. He noted as follows:
[38]…The law is clear, as cited above, that certainty is not required. The limitation period runs from when the prospective plaintiff has or ought to have had knowledge of a potential claim, and the later discovery of facts which change a borderline claim into a viable one does not postpone the discovery of the claim. Further, neither the extent nor the type of damage need be known. The plaintiff also need not know the details of the wrongdoer’s conduct or how the wrongdoer caused the loss. The question of how it happened will be revealed through the legal proceeding.
[9] Summary judgment was granted dismissing that part of the claim relating to the Portfolio dilution transaction.
the standard of review
[10] The standard of review is palpable and overriding error because the decision involved issues of mixed fact and law.
disposition
[11] We are not persuaded that there is any palpable and overriding error in the motions judge’s conclusion that there was no genuine issue respecting discoverability of the claim against Laurier. His finding is supported by the evidence before him and in particular the Appellant’s admissions on his examination for discovery and his counsel’s 2011 correspondence. We do recognize that one of the cases to which the motions judge referred, Maurice v. Alles was considered by the Ontario Court of Appeal earlier this year and after the motions judge rendered his decision. In that case, the Court allowed the appeal from a decision dismissing a claim for an oppression remedy because of a missed limitation period. The Court noted that there was a fresh and discrete act of oppression within the two year limitation period. That is not this case. There is no fresh and discrete act of oppression here. The fact that the form and result of the transaction were not as contemplated in 2011 does not translate into a discrete act of oppression. It is important to bear in mind the Court’s admonition at para. 49 of its decision: “Courts must be careful not to convert singular oppressive acts into ongoing oppression claims in an effort to extend limitation periods. To do so, would create a special rule for oppression remedy claims.”
[12] In an oppression claim, one need not wait until the transaction is concluded before acting.
[13] For these reasons, the appeal is dismissed.
COSTS – dambrot j.
[14] I have endorsed the Appeal Book and Compendium as follows: “This Appeal is dismissed. Costs to the Respondents fixed at $10,000 all inclusive payable forthwith.”
___________________________ RADY J.
I agree
DAMBROT J.
I agree
THORBURN J.
Date of Reasons for Judgment: November 10, 2016
Date of Release: November 24, 2016
CITATION: Monaghan v. Kent, 2016 ONSC 7290
DIVISIONAL COURT FILE NO.: 510/16 DATE: 20161110
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
DAMBROT, RADY and THORBURN JJ.
BETWEEN:
CLIFFORD TODD MONAGHAN
Plaintiff/Appellant
– and –
MARK STEPHEN KENT and ADAM MITCHELL ROSE
Defendants/Respondents
ORAL REASONS FOR JUDGMENT
RADY J.
Date of Reasons for Judgment: November 10, 2016
Date of Release: : November 24, 2016