CITATION: Mladenov Group Enterprises Inc. v. Beak International Incorporated, 2009 ONCA 314
DATE: 20090416
DOCKET: M37286 (C48631)
COURT OF APPEAL FOR ONTARIO
Laskin J.A. (in chambers)
BETWEEN
Mladenov Group Enterprises Inc.
Plaintiff (Appellant/Moving Party)
and
Beak International Incorporated and Beak Consultants Limited
Defendants (Respondents/Responding Parties)
Glenroy K. Bastien, for the moving party
Sarit E. Batner, for the responding parties
Heard: April 3, 2009
On appeal from the judgment of Justice A. Sosna of the Superior Court of Justice dated March 14, 2008 and on a motion to set aside the order of the Registrar dismissing the appeal for delay dated June 12, 2008.
Laskin J.A. (in chambers)
[1] The moving party, Mladenov Group Enterprises Inc., seeks to set aside the order of the Registrar dismissing its appeal for delay and to extend the time for perfecting its appeal.
Background
[2] The events that give rise to this litigation go back 20 years. In 1988, Mladenov retained the responding parties (Beak) as environmental consultants on property that it owned. In 2000, Mladenov sued Beak. It claimed that Beak overstated the amount of PCB contamination on the property, thus preventing Mladenov from selling it.
[3] Beak moved for summary judgment to dismiss the action on the ground that it had not been started within the applicable limitation period of six years. On March 14, 2008 Sosna J. granted summary judgment. He held that by 1992 at the latest Mladenov had all the facts needed to sue Beak. Yet it waited eight years to do so. Sosna J. therefore held that Mladenov’s action was statute-barred.
[4] Mladenov filed a notice of appeal on time but took no steps to perfect it. The record shows a disagreement over whether Mladenov’s previous lawyer was retained to perfect the appeal or only to file a notice of appeal. On June 12, 2008 the Registrar of this court dismissed the appeal for delay. In late 2008, Mladenov’s current lawyer was retained to bring this motion.
Analysis
[5] The overriding question on the motion is whether the justice of the case calls for setting aside the Registrar’s order and permitting Mladenov to pursue its appeal.
[6] Mladenov has not satisfactorily explained its delay of eight months in moving the set aside the Registrar’s order; and its inaction after filing its notice of appeal raises doubt whether it maintained a serious ongoing intention to appeal. These failings by themselves may not preclude the relief Mladenov seeks. I agree with Ms. Batner, counsel for Beak, however, that the decisive consideration on this motion is the lack of merit in the appeal.
[7] The summary judgment dismissing the action did not depend on resolving questions of credibility. Nor was it based on disputed facts. It was based on the December 2007 discovery evidence of Peter Mladenov, the principal of the moving party.
[8] Mr. Mladenov testified that as early as 1989 he believed that Beak had overstated the amount of PCB contamination on his company’s property. In February 1992, Mr. Mladenov retained Bruce Brown, an expert on PCB contamination. Mr. Brown confirmed Mr. Mladenov’s belief. Mr. Mladenov therefore acknowledged that by March 1992, he knew everything he needed to know to sue Beak.
Q. So by the time you went to the meeting with Bruce Brown in March 1992, to use your words, you already knew there was something very, very wrong with the Beak report?
A. That is right…
Q. So an expert on PCBs, somebody you sought out for an opinion, told you that Beak’s report was wrong and exaggerated?
A. Right.
Q. And you knew at that Beak’s report was a problem for you in terms of cleaning up the property?
A. I knew that before, way before.
Q. So you knew since 1989?
A. But I had somebody now to confirm it.
Q. So Bruce Brown confirmed your belief held as early as 1989, that Beak’s report was wrong and exaggerate the PCB problem?
A. Exactly.
Q. And he was the big expert in the field?
A. Yes.
Q. So that gave you a lot of comfort in knowing you were right and Beak was wrong about the PCB circumstances?
A. Right.
Q. Just to return, then, to the issue of Bruce Brown, it is fair to say, I take it, that what you are now saying in this action is exactly what Bruce Brown told you and what you knew before and he confirmed; is that fair?
A. Yes.
[9] When asked why he did not sue Beak earlier, Mr. Mladenov replied that he was busy and distracted by other matters.
[10] On this motion, Mr. Mladenov attempts to avoid the effect of his acknowledgement on discovery by pointing out that Mr. Brown’s report to him was not in writing. He contends that another consultant’s 1994 report was the first written report supporting his claim against Beak. But the application of the discoverability rules do not depend on whether the information needed to start a claim is in writing. Here, by 1992, on his own evidence, Mr. Mladenov knew all the material facts on which his claim was based. I therefore see no merit in Mr. Mladenov’s appeal.
[11] I add that the 1994 consultant’s report, which Mladenov relies on, did not suggest that Beak had been negligent. And even on this motion, Mladenov has not filed an expert report that questions whether Beak met the standard of care required of it.
[12] The facts giving rise to Mladenov’s lawsuit occurred many years ago. I see no arguable ground of appeal from the motion judge’s finding that the lawsuit was started after the limitation period had expired. The justice of the case entitles Beak to finality.
[13] The motion to set aside the Registrar’s order is dismissed, with costs fixed at $4,000, inclusive of disbursements and GST.
“John Laskin J.A.”