COURT OF APPEAL FOR ONTARIO

CITATION: Haunert-Faga v. Caprara, 2016 ONCA 266

DATE: 20160411

DOCKET: C61352

Sharpe, Juriansz and Roberts JJ.A.

BETWEEN

Christine Marie Haunert-Faga

Plaintiff (Respondent)

and

Giuliana Caprara in her personal capacity and in the capacity of Estate Trustee without a Will of the Estate of Bruno Caprara, deceased, Stephen Leonardo Glen Faga, Marco Caprara, Christian Caprara, Faga Group Limited, Faga Group Construction Limited, Domenico Faga, Rhodena Macdonald and Presta Caparrotta LLP

Defendants (Appellant)

Counsel:

Maurice J. Neirinck, for the defendant, Giuliana Caprara, and for the appellant, Faga Group Construction Limited

Sean Lawler, for the appellant, Presta Caparrotta LLP

Robert Rueter and Sara J. Erskine, for the respondent, Christine Marie Haunert-Faga

Heard and released orally: April 7, 2016

On appeal from the judgment of Justice Michael A. Penny of the Superior Court of Justice, dated October 23, 2015.

ENDORSEMENT

[1] The appellants moved for summary judgment to dismiss the claims on the grounds that they were barred by the applicable statutory limitation period. The parties agreed that all of the evidence necessary for resolution of the limitations issue was before the court and that the trial judge would be in no better position to decide it. The appellants now appeal from the motion judge’s dismissal of their motion.

[2] The issue before the motion judge was whether the respondent had commenced her claim within two years of the time she knew or ought to have known, through the exercise of reasonable diligence, the facts necessary to support her claims.

[3] The motion judge found that the respondent lacked standing to bring the fraudulent conveyance claim prior to the appointment of the receiver, given the elaborate corporate structure used by her former husband and his family. The motion judge also found that prior to the respondent’s unsuccessful attempt to execute her divorce judgment and prior to the receiver’s investigation, she did not have the required information relating to fraudulent intent in relation to the challenged transfer. The motion judge further found that the appellants had concealed facts necessary to support the respondent’s claims and that the respondent only acquired knowledge of those concealed facts following the receiver’s investigation. At para. 55, the motion judge added that prior to the receiver’s investigation, Presta Corporation and Giuliana Caprara denied any fraudulent intent.

[4] The motion judge gave careful reasons explaining the basis for these challenged findings. They are supported by the evidence and entitled to deference on appeal. He identified the correct legal test to determine the issue of discoverability. His application of the facts he found to that test was a finding of mixed fact and law that also attracts deference on appeal. We cannot agree that there is any basis to interfere with his determination that the appellants failed to establish a limitation defence.

[5] Costs to the respondent fixed in the amount of $20,000, inclusive of disbursements and applicable taxes, payable in equal amounts by the appellants.

“Robert J. Sharpe J.A.”

“R.G. Juriansz J.A.”

“L.B. Roberts J.A.”