DATE: 20010316

DOCKET: C33305

COURT OF APPEAL FOR ONTARIO

RE: ANGELA M. COSTIGAN, Estate Trustee under the Last Will and Testament of Joseph Menezes (Plaintiff/Respondent)

v. J. DAVID SLOAN (Defendant/Appellant)

BEFORE: FINLAYSON, MacPHERSON and SIMMONS JJ.A.

COUNSEL: Harvin Pitch, for the appellant

Timothy Costigan and Natalia Angelini, for the respondent

HEARD: March 13, 2001

On appeal from the judgment of Justice Ian V. B. Nordheimer dated November 19, 1999.

O R A L E N D O R S E M E N T

[1] The appellant, J. David Sloan, appeals from the judgment of Nordheimer J. dated November 19, 1999 ordering him to pay $90,000 plus interest and costs to the respondent.

[2] The debt between the appellant and Joseph Menezes arose in 1990. Mr. Menezes loaned the appellant $90,000 to enable the appellant to invest in a mine in Nevada. The appellant testified that he intended to repay the loan when the mine went into production. The appellant prepared and signed a promissory note which indicated a repayment date of November 30, 1990. The mine was not producing and the appellant did not repay the loan by that date. However, he acknowledged the loan as a continuing obligation on many occasions over the next few years.

[3] Mr. Menezes died in January 1997. His estate made several demands for repayment of the loan and, when these were unsuccessful, commenced an action to recover the loan. The trial judge decided the action in favour of the estate.

[4] The principal ground of appeal is that the loan arises from the promissory note which had a fixed repayment date of November 30, 1990, which the appellant now submits takes the respondent’s action outside the six-year limitation period prescribed in the Limitations Act.

[5] The trial judge carefully reviewed the relevant evidence and concluded that the promissory note was not the debt. Rather, the debt was the loan made in the spring of 1990. This debt, concluded the trial judge, was a continuing one, even after the due date on the promissory note had passed.

[6] In our view, this conclusion is unassailable. In his own evidence on discovery, the appellant did not claim that the respondent’s action was one grounded on the promissory note. Moreover, on many occasions the appellant acknowledged, to Mr. Menezes and to others, that he continued to owe $90,000 to Mr. Menezes. He did so in a document which he prepared for Mr. Menezes’ signature in 1995 and in two financial statements sworn by him in 1996 and 1998 which are filed in the Superior Court in matrimonial proceedings between him and his then wife. Moreover, in a conversation shortly before Mr. Menezes’ death, the appellant agreed to pay the debt as instructed by Mr. Menezes in the event of Mr. Menezes’ death. Accordingly, there was abundant evidence to support the trial judge’s conclusion that the debt was a continuing one and was, therefore, outside the six-year limitation period.

[7] The appeal is dismissed with costs fixed by agreement at $6,500.

(signed) “G. D. Finlayson J.A.”

(signed) “J. C. MacPherson J.A.”

(signed) “J. Simmons J.A.”