1702108 Ontario Inc. o/a Al Pinto Sales & Services Ltd. v. 3283313 Canada Inc. o/a Federal Auction Service Inc. et al.

[Indexed as: 1702108 Ontario Inc. v. 3283313 Canada Inc.]

Ontario Reports

Court of Appeal for Ontario,

Juriansz, D.M. Brown and L.B. Roberts JJ.A.

May 31, 2016

132 O.R. (3d) 237 | 2016 ONCA 420

Case Summary

Limitations — Acknowledgement of liability — E-mail from defendant stating that he could not make any payments until another dispute was settled not constituting acknowledgement of liability for purposes of [page238] s. 13(1) of Limitations Act, 2002 — Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, s. 13(1).

The plaintiff appealed from an order granting the defendant's' summary judgment and dismissing the action on the ground that the claim was statute-barred. The plaintiff argued that the motion judge erred in failing to find that an e-mail sent by one of the defendants in March 2013, in which he stated that he could not make any payments until he had settled a dispute with his ex-partner, when read in the context of payments made by the defendants following the plaintiff's 2009 demand letter, was an acknowledgement of liability within the meaning of s. 13(1) of the Limitations Act, 2002.

Held, the appeal should be dismissed.

Section 13(1) requires a clear and unequivocal acknowledgement of the debt claimed. The defendant's e-mail did not acknowledge that any amount remained owing, and when pressed for an acknowledgement of liability for the liquidated sum demanded by the plaintiff, he refused to give one.

Cases referred to

Middleton v. Aboutown Enterprises Inc., [2009] O.J. No. 2415, 2009 ONCA 466, 178 A.C.W.S. (3d) 94

Statutes referred to

Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, s. 13, (1)

APPEAL from the order of D.L. Edwards J. of the Superior Court of Justice dated November 9, 2015 granting summary judgment dismissing an action.

Avy Ben-zvi, for appellant.

Rajneesh K. Sharda, for respondent Salim Khan.

Jean-Claude Killey, for respondents Amir Durrani and 3283313 Canada Inc. o/a Federal Auction Service Inc.

[1] Endorsement BY THE COURT: -- On December 4, 2013, the appellant commenced an action seeking the sum of $500,000 for jewelry it had consigned to the respondent 3283313 Canada Inc. ("Federal Auction"), but which had been stolen in 2008. The motion judge granted summary judgment dismissing the appellant's action against the respondents, Federal Auction and its principal, Amir Durrani, on the ground that the claim was statute-barred. The appellant appeals. It submits the motion judge committed two errors in reaching that conclusion.

[2] First, the appellant contends the motion judge erred in failing to find that a March 14, 2013 e-mail sent by Mr. Durrani, when read in the context of payments made by the respondent following the appellant's 2009 demand letter, was an acknowledgement of liability within the meaning of s. 13(1) of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B (the "Act"). That [page239] subsection provides, in part: "If a person acknowledges liability in respect of a claim for payment of a liquidated sum . . . the act . . . on which the claim is based shall be deemed to have taken place on the day on which the acknowledgment was made."

[3] The motion judge held that Mr. Durrani's e-mail of March 14, 2013 did not constitute an acknowledgement of liability for the purposes of s. 13 of the Act. The motion judge held that although the e-mail acknowledged an outstanding amount, it did not contain an acknowledgment or concession of the amount owing and, therefore, was not an acknowledgment of the debt.

[4] The appellant submits the motion judge applied the wrong legal test for identifying an acknowledgment in reaching that conclusion. It contends the respondent's statement in the e-mail that he could not make any payments until he had settled the dispute with his ex-partner amounted to an acknowledgment for the purposes of s. 13(1) of the Act.

[5] The language of the statute sets out the applicable test: s. 13(1) is engaged when a person acknowledges liability in respect of a claim for payment of a liquidated amount. In Middleton v. Aboutown Enterprises Inc., [2009] O.J. No. 2415, 2009 ONCA 466, this court held, at para. 1, that s. 13(1) requires a "clear and unequivocal acknowledgement of the debt claimed". In that case, the court upheld the motion judge's finding that a mere offer to settle a claim, without acknowledging that any amount remained owing, did not amount to an acknowledgment of liability for the purposes of s. 13(1).

[6] In the present case, Mr. Durrani's March 14 e-mail did not acknowledge liability for the liquidated sum of $296,700 demanded by the appellant in its March 14 correspondence. At most, the respondent's March 14 e-mail proposed negotiating a settlement plan, without acknowledging that any amount remained owing. When the appellant subsequently pressed for an acknowledgment of liability for the liquidated sum, the respondent refused to give one. Accordingly, we see no basis to interfere with the motion judge's conclusion that the March 14, 2013 e-mail was not an acknowledgment. We would not give effect to this ground of appeal.

[7] In its factum, the appellant advances a second ground of appeal. It submits the motion judge erred in failing to find the doctrine of promissory estoppel prevented the respondents from relying on the limitation period. The motion judge noted that the appellant first raised the issue of promissory estoppel during oral argument on the summary judgment motions, and had not raised it in any documents. The motion judge concluded that "there is nothing in the words or conduct of the defendants that [page240] there was a promise to not rely upon the limitation period". The record supports the motion judge's conclusion. We see no basis upon which to interfere.

[8] Accordingly, we dismiss the appeal. The appellant shall pay the respondents their costs of the appeal fixed in the following amounts: $7,000 payable to Federal Auction and Mr. Durrani, and $1,000 payable to Mr. Khan.

Appeal dismissed.

End of Document