Court of Appeal for Ontario

Citation: Nicholas v. McCarthy Tetrault, 2009 ONCA 692

Date: 20090930

Docket: C49677

Before: Moldaver, Feldman and Cronk JJ.A.

Between:

Susan Nicholas

Plaintiff/Appellant

and

McCarthy Tetrault and Kirby Chown

Defendants/Respondents

Counsel:

G. Peter Abrahams, for the appellant

Richard W. Greene and Michael Zalev, for the respondents

Heard: September 25, 2009

On appeal from the judgment of Justice P. M. Perell, of the Superior Court of Justice dated October 27, 2008.

APPEAL BOOK ENDORSEMENT

[1] For the reasons of Perell J., with which we are in substantial agreement, the appeal must be dismissed. We would only add that at the very least, when the appellant signed the Settlement Agreement with her husband on January 22, 1997, with the benefit of legal advice from her new counsel, she knew or ought to have known of all the material facts giving rise to the impugned claim against the respondents.

[2] Nonetheless, she failed to commence any action against them for more than six years. Her claim is therefore clearly statute barred and the motion judge was correct in holding that there was no genuine issue for trial regarding discoverability.

[3] The appeal is therefore dismissed. Costs to the respondents fixed at $7,500.00 inclusive of GST and disbursements.