CITATION: Persaud v. Dass, 2018 ONSC 6540

NEWMARKET COURT FILE NO.: DC-17-129441-00

DATE: 20181031

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

ROBIN PERSAUD

Appellant (Plaintiff)

– and –

ANJANEE DASS and BANYAN ASSET MANAGEMENT INC.

Respondents (Defendants)

Amaranth V. Misir, for the Appellant (Plaintiff)

Lawrence A. Wolfman, for the Respondents (Defendants)

HEARD: August 15, 2018

REASONS FOR DECISION

DiTOMASO J.

The Appeal

[1] The Appellant, Robin Persaud (Mr. Persaud), appeals from the Judgment of Deputy Judge A. Davis, dated December 6, 2016. The trial judge dismissed Mr. Persaud’s action by reason of the operation of the Limitations Act[^1].

OVERVIEW

[2] Mr. Persaud claimed the return of $25,000 from the Respondents, Anjanee Dass and Banyan Asset Management Inc. (Dass and Banyan), which he transferred to Ms. Dass’ bank account on November 18, 2008, as alleged investment monies solicited by Ms. Dass in October, 2008. Ms. Dass is the sole Officer and Director of Banyan.

[3] Mr. Persaud and Ms. Dass were acquainted with one another in both a social and business context to the extent that Ms. Dass was familiar with Mr. Persaud and his family. She had provided Mr. Persaud and his family with suggestions regarding possible investments.

[4] Mr. Persaud issued a claim in Small Claims Court on April 11, 2014, claiming damages for fraud by misappropriation of his funds by the Respondents. In his amended claim, at paragraph 9, Mr. Persaud pleaded that though he “inquired a few times, the Defendants never provided documentary proof of his investment.”

[5] The Respondents delivered a defence denying Mr. Persaud’s monies were investment funds. Rather, the Respondents pleaded that Mr. Persaud’s payment was a contribution to the cost of maintaining a second residence at the Dass family home.

[6] The court heard evidence on February 5, 2015, July 2, 2015, October 20, 2015 and May 19, 2016. Lengthy written submissions were delivered to the trial judge, after which Reasons for Judgment were delivered on December 6, 2016.

[7] The trial judge dismissed Mr. Persaud’s claim on the basis that the action was statute barred by reason of the Limitations Act. Further, the trial judge held that there was no evidence of fraud to support the extension of the limitation period to permit Mr. Persaud to bring his claim.

[8] The trial judge determined that the discoverability rule required Mr. Persaud to act with greater diligence in managing his affairs and he did not do so.

ISSUES

[9] In his Notice of Appeal, Mr. Persaud raises 15 grounds of appeal citing errors in law by the trial judge and failure by the trial judge in his consideration of the limitation period and fraud issues. These multiple allegations are broad ranging and include:

(a) Error in dismissing the claim as statute barred;

(b) Failure to consider the evidence in order to make reasonable findings of fact;

(c) Failure to consider the evidence to determine the presence of fraud;

(d) Misstating the evidence with respect to when Mr. Persaud became aware of material facts;

(e) Failure to analyze the evidence and make appropriate credibility findings; and,

(f) Misapplying the law related to discoverability.

[10] The key issue in this case as stated by Mr. Persaud in his Factum at paragraph 40 is as follows:

40. The issue before this court is whether the learned deputy Judge erred in law when he made a determination that the Limitation Act did apply in the situation and that the 2 year limitation period operated to bar consideration of the Plaintiff’s claim on the merits.

[11] In their Factum, at paragraph 7, the Respondents state the issue as follows:

7. Did the Plaintiff by admissible evidence rebut the presumption that his cause of action arose when the funds were advanced on November 18, 2008, by establishing that the material facts were not within his knowledge and could not have been discovered by the exercise of reasonable diligence?

[12] The trial judge, at page 14 of his Reasons, stated that,

The issue here is whether the two-year limitation period had run before the action was commenced against the Defendants. The specific issue was the discoverability of the fact that the Funds had not been placed in any investment vehicle and the services performed by the Defendants, or either of them, were deficient and negligent and a breach of the contract between the parties for the investing of the Plaintiff’s monies.

ANALYSIS

Standard of Review

[13] The standard of review for decisions in Small Claims Court is determined by the principles outlined by the Supreme Court of Canada in Housen v. Nikolaisen[^2]. On a pure question of law, the basic rule with respect to the review of a trial judge’s findings is that an appellate court is free to replace the opinion of the trial judge with its own. Thus, the standard of review on a question of law is that of correctness.

[14] The standard of review for findings of fact is that such findings are not to be reversed unless it can be established that the trial judge made a “palpable and overriding error.” However, where the trial judge’s findings are not supported by the evidence, the required standard is correctness and deference is not appropriate.

[15] On questions of mixed fact and law, such that where the trier of fact has considered all the evidence that that law requires him or her to consider and still comes to the wrong conclusion, this is subject to a more stringent standard of review than for findings of fact[^3].

THE TRIAL JUDGE’S FINDINGS

[16] The trial judge at page 17 of his Reasons found as a fact that, at some time before his demand letter to Ms. Dass on December 23, 2013, Mr. Persaud certainly knew sufficient material facts with respect to his loss and damages, the acts involved and who was responsible, necessary for his claim[^4].

[17] The trial judge found at page 18 of his Reasons that Mr. Persaud had not rebutted the presumption in s. 5(2) of the Limitations Act that his claim was discovered on the date it arose[^5].

[18] The trial judge found at page 22 of his Reasons, that he could not find on the evidence that there had been active fraudulent concealment by the Respondents or either of them, and that Mr. Persaud’s allegations of fraud, dishonesty and deception were unfounded and unsupported by the evidence[^6].

[19] As for the alleged issues raised by Mr. Persaud, the Respondents submit that these are not errors of law, but that Mr. Persaud’s real complaint is that the trial judge appeared, for the most part, to prefer the evidence of the Respondents, based in large part, on the absence of those documents that one would have expected to see if Mr. Persaud’s version of the facts was true.

[20] The trial judge found as a fact at page 5 of his Reasons, that there was no evidence that the funds were intended to be a demand obligation[^7].

[21] The trial judge is not required to refer to all of the evidence in his Reasons. It is sufficient if a reading of the Reasons as a whole leaves no doubt as to why the trial judge came to his decision. The Respondents submit, and I agree, that the Reasons as a whole leave no doubt as to why the trial judge decided as he did, dismissing Mr. Persaud’s claim.

The Limitations Act Issue

[22] When a limitation period begins to run is a question of fact. The application of the discoverability rule to the facts of a particular case necessarily requires a finding of fact about when the plaintiff discovered the facts in respect of the remedy sought, or, through reasonable diligence, ought to have discovered the facts[^8].

[23] A judge’s findings of fact are entitled to deference on appeal. An appellant court should not interfere with the judge’s finding of fact unless the judge has made a “palpable and overriding error” or a “manifest error” or a “clear error”[^9]. In this case, the trial judge, at pages 6 to 14 of his Reasons, set out the applicable law with respect to limitation periods, including discoverability and fraudulent concealment. I find that the trial judge made no error in his legal analysis or his application of the law to the facts as he was entitled to find them[^10].

[24] Further, I accept the Respondents’ submissions that given the trial judge’s finding of fact that Mr. Persaud’s allegations of fraud, dishonesty and deception were unfounded and not supported by the evidence, even if the limitation defence had not succeeded at trial, the trial judge’s determination that Mr. Persaud’s claim for fraud by misappropriation would, in any event, have been dismissed on the merits.

CONCLUSION

[25] For these reasons, this court finds that the trial judge did not error in fact or in law. He did not commit any palpable and overriding errors. He was entitled to make the findings that he made on the evidence that he heard. His reasons as a whole leave no doubt as to why he came to the decision that he did. For these reasons, this appeal is dismissed with costs.

[26] Submissions were heard with respect to costs.

[27] If the Respondents were successful, it was submitted that the appropriate award of costs would be $5,000 all inclusive. On behalf of Mr. Persaud, it was submitted that a more reasonable figure would be the sum of $3,500 all inclusive. I find that the Respondents were entirely successful on this appeal. The Respondents are entitled to costs fixed in the amount of $5,000 all inclusive, payable to them by Mr. Persaud.

Mr. Justice G.P. DiTomaso

Released: October 31, 2018

[^1]: 2002, S.O. 2002, c. 24, Sched. B. [^2]: [2002] 2 SCR 235, 2002 SCC 33. [^3]: Housen v. Nikolaisen, supra, at paras. 8 and 36. [^4]: Respondents’ Compendium, Tab 1, page 17. [^5]: Respondents’ Compendium, Tab 1, page 18. [^6]: Respondents’ Compendium, Tab 1, page 22. [^7]: Respondents’ Compendium, Tab 1, pages 2 and 5. [^8]: Aguonie v. Galion Solid Waste Material Inc., 1998 954 (ONCA), 33 O.R. (3d) 614. [^9]: Equity Waste Management of Canada Corp. v. Halton Hills (Town) (1997), 1997 2742, 35 O.R. (3d) 321 (C.A.) at page 333 (paras. f - h). [^10]: Holley v. The Northern Trust Company, Canada, 2014 ONSC 889 at page 20.