Court of Appeal for Ontario

Citation: Roth v. Insalaco, 2014 ONCA 472

Date: 2014-06-17

Docket: C57005

Before: MacPherson, Cronk and Gillese JJ.A.

Between:

Judy Roth Plaintiff (Appellant)

and

Joe Insalaco also known as Joseph Insalaco, Giuseppe Insalaco, Gordon Paving (1989) Ltd. as 832780 Ontario Corporation and Gordon Paving (1999) Ltd. as 2101288 Ontario Corporation Defendants (Respondents)

Counsel:

Judy Roth, appearing in person Rebecca Huang, amicus curiae Joe Insalaco, appearing in person David Quayat, amicus curiae

Heard: June 13, 2014

On appeal from the judgment of Justice Edward M. Morgan of the Superior Court of Justice, dated April 19, 2013.

Endorsement

[1] The appellant Judy Roth appeals the judgment of Morgan J. of the Superior Court of Justice dated April 19, 2013, dismissing her action for non-compliance with the Limitations Act 2002, S.O. 2002, c. 24.

[2] The appeal was heard on April 4, 2014. Both parties were self-represented. During his oral submissions, the respondent made certain admissions concerning his dealings with the appellant in 2009 and 2010 that caused the court to appoint amicus for both parties. The appeal was adjourned to June 13, 2014.

[3] Both amicus filed brief and excellent facta in support of the positions of the parties. At the resumption of the hearing, the appellant did not attend for health reasons. However, amicus reported that the appellant adopted her submissions and was content that the appeal proceed on the basis of those submissions.

[4] The appellant’s position, as advanced by amicus, is that the respondent should be precluded from relying on the limitation period defence because the respondent had deliberately deceived the appellant or made misrepresentations to her after 2000, including in 2009 and 2010, for the purpose of inducing her to forebear from enforcing her rights through a legal proceeding, and then took advantage of the expiry of the limitation period to defeat the appellant’s otherwise valid claims. The appellant also invokes the doctrine of fraudulent concealment in support of her position.

[5] We are not persuaded by these submissions. The doctrine of fraudulent concealment was not pleaded before the trial judge and we are not persuaded that this is one of those rare cases where “all the facts necessary to address the point are before the court as fully as if the issue had been raised at trial”: see Kaiman v. Graham, 2009 ONCA 77, at para. 18. Moreover, we do not think that the record supports the appellant’s claim that she was deceived by a conscious plan on the part of the respondent to “let time run” so that the appellant’s claim could be defeated by the limitation period defence. Finally, any oral statements made by the respondent that might be construed as acknowledgments of the debt cannot revive the unpaid debts that form the basis of the action; such acknowledgments must be in writing: see Limitations Act, 2002, s. 13(10).

[6] The appeal is dismissed. No costs. We are grateful to both amicus for their valuable written and oral submissions.

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”

“E.E. Gillese J.A.”