COURT OF APPEAL FOR ONTARIO

CITATION: Ainsley v. Fitzpatrick, 2014 ONCA 93

DATE: 20140203

DOCKET: C57343

Laskin, van Rensburg and Hourigan JJ.A.

BETWEEN

Richard Ainsley

Plaintiff (Appellant)

and

Donna Fitzpatrick

Defendant (Respondent)

Mark E. Alter, for the appellant

Ian Latimer, for the respondent

Heard: January 28, 2014

On appeal from the judgment of Justice Thomas A. Bielby of the Superior Court of Justice, dated June 30, 2013.

ENDORSEMENT

[1] Mr. Ainsley narrowed the focus of his oral argument on appeal. He puts in issue only the $50,000 loan, and makes three submissions why the limitation period for demanding repayment of that loan had not expired by April 2011, when he began this action.

[2] First, Mr. Ainsley submits that the loan was not a demand loan but was a loan for a specific purpose – to enable Ms. Fitzpatrick to pursue estate litigation against her father’s estate. Second, he submits that the limitation period was tolled because of Ms. Fitzpatrick’s wilful concealment or misrepresentation about why she needed the money. Third, he submits that the limitation period was tolled because of his incapacity.

[3] The evidence in support of all three submissions is thin, at best. Even if we were to give credence to this evidence, however, Mr. Ainsley’s own evidence on cross-examination shows that he knew that he had a cause of action by June 2005. And his first of four demand letters was dated in May 2006. The limitation period would therefore begin to run at least from the date of his first demand. By then the new Limitations Act, 2002, applied and therefore the limitation period was two years. Accordingly, the motion judge was correct in stating in para. 48 of his reasons:

If the latter two loans were not demand loans and it was determined the Limitations Act, 2002, applied, the first written demand was made on May 1, 2006. At the latest, the limitation period expired two years later, years before the commencement of the action.

[4] This appeal is dismissed with costs of $2,500, inclusive of disbursements and applicable taxes.

[5] The title of proceedings may be amended to show the plaintiff as “Richard Ainsley also known as Rick Ainsley”.

“John Laskin J.A.”

“K. van Rensburg J.A.”

“C.W. Hourigan J.A.”