Court of Appeal for Ontario

Date: 2018-04-23 Docket: C63982

Judges: Hourigan, Huscroft and Nordheimer JJ.A.

Between

Gordon Gravelle o/a CodePro Manufacturing Plaintiff (Appellant)

and

Denis Grigoras Law Office and Denis Grigoras, an individual Defendants (Respondents)

Counsel

Gordon Gravelle, acting in person

Brendan Hardick, for the respondents

Heard: April 20, 2017

On appeal from: the judgment of Justice Bonnie R. Warkentin of the Superior Court of Justice, dated May 24, 2017.

Reasons for Decision

[1] The appellant appeals from an order of summary judgment dismissing his action against the respondents on the basis that it is statute barred pursuant to the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B., s. 4.

[2] The appellant commenced his action on October 4, 2013, alleging that the respondents provided erroneous advice in respect of an agreement of purchase and sale he entered. Specifically, the appellant alleged that the respondents incorrectly advised him as to the enforceability of a binding arbitration agreement he had with the purchaser under North Carolina law.

[3] We are satisfied that the motion judge made no error in concluding that the appellant discovered his claim by November 23, 2009. On this date, the appellant wrote the respondents under the subject line: "Notice of Pending Legal Malpractice Action". The appellant did not commence his claim until over four years later. We note that in this letter the appellant stated in part:

…a statement of claim is currently being drafted against yourself, and your firm, for its issuance next week, such as to avoid the expiration of applicable statute of limitation periods.

[4] The appellant argues that it was appropriate for him to delay bringing his action against the respondents until the arbitration proceedings involving the purchaser were completed, as it would have avoided unnecessary litigation if he had been successful in those proceedings.

[5] We disagree.

[6] This is not a case in which the appellant was pursuing alternative means of resolving his negligence allegations against his former solicitors, the respondents. The appellant decided for tactical reasons not to bring his action against the respondents until the arbitration proceedings were completed. He was entitled to make this choice, but he must live with the consequences of it. The motion judge made no error in concluding that the appellant discovered his claim by November 23, 2009. The fact that a notice of possible claim has been delivered "may be considered by a court in determining when the limitation period in respect of the person's claim began to run": Limitations Act, 2002, s. 14(3).

[7] The appeal is dismissed. The respondents are entitled to costs fixed in the amount of $7,500, inclusive of taxes and disbursements.

"C.W. Hourigan J.A."

"Grant Huscroft J.A."

"I.V.B. Nordheimer J.A."