Court File and Parties
COURT FILE NO.: CV-12-468538 DATE: 2017-03-27 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
GREGORY P. KING Mr King, for himself Plaintiff
- and -
JOHN P. O’TOOLE and GOWLING LAFLEUR HENDERSON LLP Peter Wardle, for the Defendants Defendants
Decision
PART 1 - INTRODUCTION
(a) King owes a judgment debt of more than $2 million
1Gregory King is a lawyer. He practiced business law at Aylesworth Thompson LLP (“Aylesworth”), and subsequently at Gowling Lafleur Henderson LLP (“Gowling”).
2In the mid-1990’s, King acted in connection with a transaction involving an Italian company [Sincies Chiementin SpA (“Sincies”)], a Swiss company affiliated with Sincies [“HFM”], a Chinese-Canadian businessman [David Chan], and two Bahamian companies affiliated with Sincies and HFM [“Splendide” and “Splendide Nansha”]. The transaction was a new hotel to be built in Nansha, China. King received a 5% interest in the hotel and Aylesworth was to receive payment of fees for legal services in connection with the project.
3The transaction did not thrive. And neither did Sincies: it ended in bankruptcy proceedings in Italy.
4One Sincies asset was its US $600,000 deposit in the Nansha hotel project. Sincies’ trustee in bankruptcy learned that, apparently, this deposit had disappeared. The trustee inquired further, leading the trustee to make allegations against various persons connected to the venture, including King and Chan. These allegations were not resolved, and the trustee brought legal proceedings in Italy against King and Chan to try to recover the US $600,000 for Sincies’ creditors (the “Italian Proceedings”).
5King did not defend the Italian Proceedings. The case went ahead without King’s participation, and in 2001 the Italian court ruled against King for US $600,000. King did not pay the judgment, taking the position that the Italian court lacked jurisdiction over the claims against him.
6In 2007, Sincies’ trustee sued King in Ontario to enforce the Italian judgment. King defended and counterclaimed. The enforcement action was decided by Whalen J. after a four-day motion for summary judgment. Whalen J. found that the Italian court had acted with jurisdiction and that the Italian judgment ought to be enforced in Ontario. [2] King appealed. The Ontario Court of Appeal dismissed King’s appeal. [3] King sought leave to appeal to the Supreme Court of Canada, which was denied. [4]
7By the end of the Ontario Enforcement Proceedings, King owed Sincies’ trustee the principal amount of the Italian judgment (US $600,000), costs in Italy and in the Ontario proceedings, plus interest since 2001. The current amount outstanding on the judgment is apparently more than $2 million.
(b) The Current Proceedings
8The proceedings now before the court arise out of the events that led to the Ontario judgment against King. King’s claims against Giardina and others arise from the conduct of the Italian Proceedings. Giardina and Sasson are Italian lawyers and Chiomenti Studio Legale is their law firm (the “Italian Defendants”). King alleges that the Italian Defendants acted in conflict of interest when they acted against him and that they breached duties they owed to him both (i) in acting against him, and (ii) in the way they conducted the Italian litigation against him.
9King’s proceedings against Gowling and O’Toole concern the events between King and his own law firm at the time that Sincies’ claims were asserted against King. King claims indemnity from his former law firm and claims against O’Toole in negligence on the basis of advice King alleges to have received from O’Toole about the Italian Proceedings.
10King’s proceedings against Lang Michener concern the conduct of the Ontario Enforcement Proceedings. King was represented by Lang Michener in those proceedings. King claims that those proceedings were defended negligently. In addition, King claims that Lang Michener gave him negligent advice as a result of which King failed to commence timely proceedings against his own insurer, Lawyers’ Professional Indemnity Company (“LawPro”). King’s proceedings against Lang Michener are counterclaims in response to Lang Michener’s main claim against King for payment for their services defending the Ontario Enforcement Proceedings.
(c) The Current Motions
11The defendants in all three actions move for judgment dismissing King’s claims against them.
12The Italian Defendants argue that the courts of Ontario have no jurisdiction over King’s claims against them, and, in the alternative, that Ontario is not a convenient forum for these claims. [5] I decide this motion in separate reasons (2017 ONSC 1588).
13Gowling and O’Toole argue that King’s claims against them are barred by limitations periods. Gowling also argues that there is no basis for a King’s claim to indemnity for the Italian judgment: the events that gave rise to the Italian judgment all occurred while King was a member of Aylesworth, and not while King was a member of Gowling. [6] I decide this motion in these reasons.
[14] Lang Michener argues that: (a) there is no issue requiring a trial in respect to King’s counterclaims that the Ontario Enforcement Proceedings were conducted negligently by Lang Michener because: (i) the issues and arguments King alleges were not pursued by Lang Michener were, in fact, fully argued before and decided by Whalen J. in the Ontario Trial Decision, and (ii) these allegations are collateral attacks on the Ontario Trial and Appellate Decisions, predicated as they must be on an argument that those decisions were decided wrongly and, but for the alleged negligence of Lang Michener, would have been decided in King’s favour. Lang Michener argues that this kind of collateral attack is an abuse of process and cannot raise a triable issue; and (b) there is no issue requiring a trial in respect to King’s counterclaims that King was given negligent advice about the applicable limitation period for King to sue LawPro for refusing his claim to indemnity respecting the Italian judgment because: (i) Lang Michener was not retained by King to advise on and did not advise on his claims against LawPro; (ii) King had no valid claim against LawPro because: a. the limitation period for King’s claims against LawPro had already long expired; and b. King was not entitled to indemnity from LawPro for the Italian judgment in any event because that judgment did not arise from provision of legal services, but rather, it arose from fraud. [7] Thus, Lang Michener argues, it is clear that any claim King may have had against LawPro was doomed to fail by the time that Lang Michener was involved. Accordingly, Lang Michener argues, King has suffered no damages as a result of any advice Lang Michener may have given on this issue. I decide this motion in separate reasons (2017 ONSC 1917). As will be seen by anyone who reads all three sets of reasons, the first 14 paragraphs of all three sets of reasons are substantially identical. In my reasons in King v. Giardina, 2017 ONSC 1588, I set out detailed background facts for all three motions, at paragraphs 22-35, which I incorporate here by reference.
(d) Summary and Disposition
15I agree with Gowling that the claims for indemnification against it are “spurious”: the causes of action underlying the Italian judgment arose before King joined Gowling, while King was at Aylesworth: there is no triable issue that Gowling is liable to indemnify King for those claims. I find that the claims against O’Toole for allegedly negligent advice not to report the Italian claims to LawPro are brought after the expiry of the applicable limitation period. I conclude, however, that there is a triable issue as to whether the applicable limitations period precludes claims against O’Toole for the allegedly negligent advice not to attorn to the jurisdiction of the Italian courts.
PART II – LEGAL PRINCIPLES
(a) Law of Summary Judgment
16Summary judgment is appropriate where there is no genuine issue requiring a trial. [8] As stated by the Supreme Court of Canada in Hryniak v. Mauldin, [9]
[t]here will be no genuine issue requiring a trial when the written record (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts and (3) is a proportionate, more expeditious means to achieve a just result.
17On a motion for summary judgment, each side must put its best foot forward with respect to the existence or non-existence of material issues to be tried. A party is not entitled to sit back and rely on the possibility that more favourable facts may develop at trial. [10]
18The general approach prescribed in Hryniak is described in Sweda Farms Ltd. v. Egg Farmers of Ontario as follows:
As I read Hryniak, the court on a motion for summary judgment should undertake the following analysis:
- The court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial;
- On the basis of this record, the court decides whether it can make the necessary findings of fact, apply the law to the facts, and thereby achieve a fair and just adjudication of the case on the merits;
- If the court cannot grant summary judgment on the motion, the court should: a. Decide those issues that can be decided in accordance with the principles described in 2) above; b. Identify the additional steps that will be required to complete the record to enable the court to decide any remaining issues; c. In the absence of compelling reasons to the contrary, the court should seize itself of the further steps required to bring the matter to a conclusion. [11]
(b) Law of Limitations
19The applicable limitation period is two years. [12]
20When a defendant pleads the expiry of the limitations period, the plaintiff has the burden of proving that the cause of action arose within the statutory limitations period. [13] The cause of action arises when it is “discovered” within the meaning of the Limitations Act.
21Subsection 5(1) of the Limitations Act provides:
A claim is discovered on the earlier of, (a) The day on which the person with the claim first knew, (i) That the injury, loss or damage had occurred, (ii) That the injury, loss or damage was caused by or contributed to by an act or omission, (iii) That the act or omission was that of the person against whom the claim is made, and (iv) That, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek remedy; and (b) The day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).
22Subsection 5(2) of the Limitations Act contains a rebuttable presumption:
A person with a claim shall be presumed to have known of the matters referred to in clause 1(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.
PART II – ANALYSIS OF THE ISSUES ON THIS MOTION
[23] King’s claims against Gowling and O’Toole are as follows: (a) In December 1998 and January 1999, O’Toole negligently advised King that he need not report the claim to LawPro until Sincies’ trustee moved to enforce an Italian judgment in Ontario; (b) In December 1998 and January 1999, O’Toole gave King negligent advice not to attorn to the jurisdiction of the courts of Italy; and (c) Gowling is obliged to indemnify King as a former partner of that firm.
(a) Additional Background Facts
24King was a partner at Aylesworth throughout the time of the joint venture activities. Sincies paid the deposit of US $600,000 in 1993. In March 1994, King fell out with Sincies because of disputes around the deposit and unpaid accounts from Aylesworth for King’s legal services. Sincies went bankrupt in 1995. No events took place giving rise to Sincies’ claims against King after the bankruptcy: events after the bankruptcy all concerned the trustee’s investigations and the legal proceedings brought against King.
25King joined Gowling in January 1996.
26Reasonable persons could disagree on precisely when Sincies’ trustee first alleged legal responsibility by King. Some of the early correspondence might well have been sufficient to constitute notice of a potential claim. If not, Giardina’s letter of April 11, 1997, clearly threatens litigation against King:
… we invite your firm to contact us within 20 days in order to reach a settlement of the matter. Please be informed that if no satisfactory reply will be timely received, we will be forced to start a legal proceedings in order to enforce the right of bankruptcy of Sincies Chiementin and to present the entire file to the competent authorities.
I find that King had notice of a potential claim against him by Sincies’ trustee by April 11, 1997.
27King did not report the matter to LawPro following the letter of April 11, 1997. He explains that he did not do so at this time because he understood that it was not necessary to report “nuisance claims”. [14]
28The trustee’s action was commenced in January 1998 and was served on King in February and April 1998. King did not report the claim to LawPro when he was served with the Italian court papers.
29King spoke with O’Toole in late 1998 about the Italian Proceedings. King and O’Toole have different versions of what took place during those conversations. I proceed on the basis that King’s version of the facts theoretically could be proved at trial. King’s evidence is that O’Toole told him that the Italian court did not have jurisdiction and that he should not attorn to the courts of Italy. King’s evidence is that O’Toole told him that he could report the claim to LawPro either then (ie in late 1998) or whenever a proceeding was brought in Ontario to enforce an Italian judgment. [15]
30King sent Giardina a letter setting out his position on January 8, 1999. This letter was read by O’Toole and included a statement that King had received legal advice not to attorn to the courts of Italy. As described in my summary of background facts in the Giardina decision, Giardina was clear that he would proceed with the claim against King and would not put King’s letter or position before the Italian court. [16]
[31] King spoke with Scott Jolliffe, Gowling Managing Partner after receiving Giardina’s letter dated January 18, 1999. According to King’s evidence, Joliffe: (i) told King not to “leave the claim uncovered”; and (ii) advised that King should seek an Italian lawyer, and provided King with a contact in Italy. King reached out to that contact, who provided King with the name of an Italian lawyer. King wrote to the Italian lawyer, received no response and did not follow up further.
32Jolliffe’s evidence confirms that he told King that he should do something about the Italian claim and that he provided a name to help King locate Italian counsel. Jolliffe also testified that during these discussions, he told King that the claim was King’s problem because it arose from matters that predated King becoming a partner at Gowling, and that King agreed that this was the case. [17]
33King made no inquiries about the status of the Italian Proceedings after January 1998 until the Italian trustee took steps to enforce the judgment in Ontario. In May 2006, the trustee served the Italian judgment on King in Ontario.
34King spoke to Jolliffe after receiving the judgment, and asked him if a Gowling litigation lawyer would respond on his behalf. Jolliffe advised that the Italian judgment was King’s problem, not Gowling’s problem, on the same basis as had been discussed back in 1999: the Italian judgment arose out of events that predated King joining Gowling.
35Shortly after this conversation between King and Jolliffe, King retained John Kelly of Goodman and Carr LLP (and subsequently of Lang Michener LLP) to act for him. The retainer was by King personally and not by Gowling. King personally was responsible for paying Lang Michener’s fees, not Gowling.
36King received a memorandum from Kelly dated June 14, 2006 related to enforcement of foreign judgments in Canada. The memorandum referred to the “real and substantial test” developed by the Supreme Court of Canada in Morguard v. De Savoye [18] and Beals v. Saldhana. [19] On a fair reading of the memorandum, it put King on notice that there was a material chance that (i) the Italian court would be found to have had jurisdiction; (ii) the Italian judgment would be enforced against King; and (iii) King’s defences to enforcement could be very limited. King acknowledges that he had previously read the Supreme Court of Canada’s decision in Beals v. Saldhana and was aware of the principles set out in that decision. While conflicts of laws is not King’s specialized area of practice, he was a senior corporate lawyer, able to read and understand Beals v. Saldhana and to recognize the potential impact of that case on his ability to defend an enforcement action in Ontario on the Italian judgment.
37In late June 2006, Kelly advised King to obtain advice from Italian counsel on options to challenge the Italian decision in Italy. King did not to follow this advice.
38Sincies’ trustee commenced the Ontario Enforcement Proceedings and served them on King in August 2007.
39Whalen J. released his judgment in the Ontario Enforcement Proceedings on November 30, 2010.
40King’s claims against O’Toole were commenced in November 2012.
(a) The Alleged Advice Not to Report the Claim to LawPro
41King reported his claim to LawPro in August 2007. Counsel for LawPro asked King to respond to a list of questions relating to the claim, to which King responded in a memorandum dated September 4, 2007. In this memorandum, King told LawPro that he had not reported the claim prior to 1999 because he had thought it a “nuisance claim”. He advised that he had not reported the claim in 1999 because he had believed that the trustee had abandoned the claim when he heard nothing further about it. He advised LawPro that he had not reported the claim in 2006 (when he had been served with the Italian Judgment) because he believed that the trustee knew that the claim was false and he could not believe that any further steps were being taken on the judgment.
42On November 23, 2007, LawPro denied coverage of King’s claim. King knew at that time that one basis for this refusal was his failure to report the claim earlier. And thus he knew that the purported advice of O’Toole on this issue was wrong, at least in LawPro’s view, of November 23, 2007.
43Also by November 23, 2007, King knew that he would suffer loss as a result of O’Toole’s purported advice. Gowling had refused to indemnify him and had refused to report the claim to Gowling’s excess insurer. King had not reported the claim to Aylesworth’s excess insurer. King was already personally incurring defence costs in the Ontario Enforcement Proceedings. The “injury, loss or damage” was the loss of coverage and legal costs that King had already begun to incur.
44By November 23, 2007, King knew he was suffering loss as a result of LawPro’s denial of coverage. He knew all of the facts on which he alleges that O’Toole is liable for these losses. The precise magnitude of King’s loss was not clear as of this time, but that is not the test for commencement of a limitations period:
Once the plaintiff knows that some damage has occurred and has identified the tortfeasor… the cause of action has accrued. Neither the extent of the damage nor the type of damage need be known. [20]
45The totality of circumstances must be assessed when deciding whether a plaintiff can await the result of predicate litigation before suing a lawyer whose advice grounded the claims in that predicate litigation. [21] In respect to the advice not to report the claim to LawPro, the denial of coverage, and the need to fund litigation that could otherwise have been insured, is an immediate loss: there is no need to await the outcome of the predicate litigation:
… if a solicitor’s negligence claim is raised in a prior action, the limitation period against those solicitors begins to run in the usual way – i.e. when the plaintiff becomes aware of the facts giving rise to the claim – and is not held in abeyance pending a finding in the previous action. [22]
46King argues that his potential claims against Gowling were all put in abeyance as a result of discussions between him and Gowling personnel. He argues that he was in an impossible position as a partner in Gowling: if he sued his own firm or one of his partners he would likely have been ejected from the firm, with no reasonable prospect of obtaining an alternate position because of the litigation hanging over his head.
47I agree that King was in a very difficult position by this point. He had a large judgment against him. His insurer had denied coverage. His own firm had denied liability to indemnify him and had refused to fund his defence to the enforcement proceedings. He felt that he could not leave Gowling and continue his practice at another firm with the Italian Judgment and Ontario Enforcement Proceedings hanging over his head. King argues that, in all these circumstances, “a proceeding” against O’Toole would not have been “an appropriate means to seek a remedy.” [23]
48I do not accept this argument: it imports a subjective tactical analysis into limitations law. It may be that King concluded that his overall best interests lay in staying at Gowling and trying to negotiate some relief from Gowling at the end of the Ontario Enforcement Proceedings, but he cannot, thereby, extend the applicable limitations periods.
49I find that King’s cause of action for O’Toole’s alleged advice not to report the claim to LawPro arose when LawPro denied King’s claim, in November 2007. The limitations period expired two years later in November 2009. The claim against O’Toole was not brought until 2012 and is out of time. That claim is dismissed.
(b) Alleged Negligent Advice Not To Attorn to Italy.
50King alleges that O’Toole advised him not to attorn to the jurisdiction of the courts of Italy. I proceed on the assumption (a) there is a triable issue that this advice was given; and (b) there is a triable issue that this advice was negligent at the time that it was given; (c) there is a triable issue that this advice was relied upon by King; (d) there is a triable issue that King’s reliance on this advice allegedly caused damage to King. Nothing in these reasons should be construed as reaching a conclusion on the merits of any of these triable issues: they are no more than factual assumptions for the purposes of this motion.
51O’Toole’s alleged advice was provided in December 1998 and January 1999. I fix the last date of advice as January 8, 1999, the date of King’s letter to Giardina which states that King had received legal advice not to attorn to Italy.
52Section 5(2) of the Limitations Act provides that the cause of action accrues on “the day the act or omission on which the claim is based took place, unless the contrary is proved.” This date was on or before January 8, 1999. However, “the contrary is proved”: King had suffered no “loss, injury or damage” as of that time. [24]
53When did the “injury, loss or damage” occur as a result of this advice? [25] And, “having regard to the nature of the injury, loss or damage” when was it that King “first ought to have known” that “a proceeding would be an appropriate means to seek a remedy”? [26]
[54] The key dates relevant to this question are as follows: (i) January 8, 1999: King allegedly receives the impugned legal advice from O’Toole. (ii) January 18, 1999: Giardina advises King that Giardina will not place King’s letter before the Italian court, that he will proceed with the claim of Sincies’ trustee against King in Italy, and that King should seek Italian counsel. (iii) May 2006: King served with the Italian judgment. (iv) May 2006: Gowling refuses to represent or indemnify King respecting the Italian judgment. (v) May/June 2006: King retains/consults Lang Michener. (vi) June 14, 2006: King receives memorandum of law from Lang Michener advising that the impugned advice allegedly received from O’Toole was not correct and that there was a substantial risk that the courts of Ontario would enforce the Italian judgment. (vii) August 8, 2007: the Sincies trustee commences its claim against King in the Ontario Enforcement Proceedings. (viii) August 2007: Gowling again tells King that it will not defend or indemnify him in respect to the Ontario Enforcement Proceedings. (ix) August 2007: King reports the claim to LawPro. Gowling advises King that Gowling’s excess insurer will not cover the claim against King and recommends that King put Aylesworth’s excess insurers on notice. King does not put Aylesworth’s excess insurer on notice. (x) November 23, 2007: LawPro denies coverage. (xi) May 31 – June 3, 2010: motion for summary judgment in the Ontario Enforcement Proceedings heard by Whalen J. (xii) November 30, 2010: decision of Whalen J. granting judgment to Sincies’ trustee in the Ontario Enforcement Proceedings.
55Gowling argues that King was on notice of his claim against O’Toole respecting the advice not to attorn when he received Lang Michener’s memo in June 2006. At that point, Gowling argues, King knew or ought to have known that the impugned advice was wrong, and also at that point King suffered loss in the form of legal fees he had to pay to Lang Michener.
56King argues that he did not suffer loss caused by the advice not to attorn until he received Whalen J.’s decision on November 30, 2010.
57I focus on the issue of causation in analyzing these positions. For King to have had a claim, he must have suffered “injury, loss or damage” that “was caused by or contributed to by an act or omission” being O’Toole’s alleged advice not to attorn to the courts of Italy. Prior to the judgment of Whalen J., what were King’s losses?
58The obvious head of loss was legal fees King had to pay to Lang Michener to defend the Ontario Enforcement Proceedings. But were these fees a loss “caused by or contributed to” by the impugned advice not to attorn to the courts of Italy?
59If the impugned advice had been correct, it was still foreseeable that Sincies’ trustee would proceed in Italy and then try to enforce an Italian judgment in Ontario. King would then be put to the expense and trouble of defending enforcement proceedings in Ontario. This scenario was not merely foreseeable; it was foreseen and was part of King’s tactical approach to the case: he would not defend in Italy, but would defend against enforcement in Ontario if that proved necessary.
60King suffered loss in having to pay for his legal defence costs himself, rather than being represented by or at the expense of Gowling or by LawPro. But those consequences did not flow from King’s failure to attorn to the courts of Italy. They flowed from his failure to report the claim to LawPro in time and Gowling’s position that it had no obligation to indemnify King in respect to the claim.
61King’s second head of loss is King’s liability to Sincies’ trustee. That loss did not arise before the judgment of Whalen J. [27] on November 30, 2010. Up to this time, King had suffered no damages as a result of the alleged advice not to attorn, and thus he had no claim on which to sue.
62I conclude that King has an arguable case that he did not suffer loss caused by the impugned advice not to attorn to the courts of Italy until the judgment of Whalen J. King’s claim against O’Toole in respect to this alleged advice was brought within two years of the judgment of Whalen J., and thus it is arguable that this claim is not brought too late.
63To be clear, I do not dismiss O’Toole’s limitations defence of this claim and instead leave the issue for trial. That is because, for the purposes of this motion, I have assumed that King could theoretically prove his version of events. If, for example, hypothetically, any advice on attornment was premised on a report being made to LawPro and LawPro agreeing with the tactical decision not to attorn to the courts of Italy, the chain of causation between the advice not to attorn and King’s eventual losses could be broken. My conclusion is no more than a finding that it is not “plain and obvious” that the limitations defence raises no triable issue and thus summary judgment should not be granted dismissing this aspect of King’s claim.
(c) The Claim to Indemnity from Gowling
64Gowling argues that King’s claim to indemnity is barred by the Limitations Act and is, in any event, spurious. I prefer to dispose of this issue on the second ground advanced by Gowling.
(i) Claim to Indemnity is “Spurious”
65The Gowling Partnership Agreement provides that each partner is liable for the liabilities of the partnership in proportion to his or her partnership interest.
66There are common law rights of indemnity among partners for partnership activities. These rights would not extend to liability for obligations of a partner incurred before he became a member of the partnership.
67King apparently accepts these propositions. His argument is that the events giving rise to his liability under the Italian judgment “straddle” his time at Aylesworth and his time at Gowling.
68There is no merit to this argument.
69The Italian judgment finds King liable in fraud and deceit in connection with the Nansha hotel venture, and in particular, for inducing Sincies to pay US $600,000. These events took place in 1993 and 1994. On his own evidence, King ceased doing work for Sincies in 1994. Sincies went bankrupt in 1995 and thereafter Sincies’ affairs were conducted by the Sincies trustee.
70King joined Gowling on January 1, 1996.
71King argues that the Italian court relied upon King’s conduct after January 1, 1996 in reaching its decision. This argument is correct: the Italian court relied upon King’s letter in April 1997, the general tenor of King’s response to the trustee’s counsel’s inquiries, and King’s so-called “disappearance”. None of these events grounded King’s liability. All were matters of after-the-fact conduct. This after-the-fact conduct, while it may have been evidence relied upon by the court in Italy, was not an act or omission grounding King’s liability to Sincies’ trustee.
72I find that there is no triable issue in respect to King’s claim to indemnity as a partner of Gowling. That claim is dismissed.
(ii) The Limitations Issue Respecting the Indemnity Claim
73I need not decide the limitations issue respecting the indemnity claim given my conclusion that it is substantively without merit. The facts related to the limitations point are sufficiently bound up with the limitations issue to be tried respecting the surviving claim against O’Toole that it is preferable that I refrain from reviewing the issue here.
PART III – ORDER AND COSTS
74King’s claims to indemnity from Gowling are dismissed on the basis that they do not present serious issues to be tried. King’s claims arising out of the alleged advice from O’Toole not to report the Sincies claim in Italy to King’s insurer are dismissed because they have been brought outside the applicable limitations period. The motion to dismiss King’s claims arising out of the alleged advice from O’Toole not to attorn to the jurisdiction of the courts of Italy is dismissed on the basis that the limitations defence to these claims presents triable issues to be decided by the trial judge.
75I remain seized of the case management of this action. I shall provide directions for any future steps required to bring this case to a conclusion, in accordance with paragraph 33(3)(b) and (c) of Sweda Farms, [28] during the course of that ongoing case management.
76If the parties cannot agree on costs then the moving parties shall provide me with written costs submissions by April 21, 2017 and King shall provide his responding written costs submissions by May 12, 2017.
D.L. Corbett J.
Released: March 27, 2017