Court of Appeal for Ontario

Date: 2017-05-04 Docket: C62299 Judges: Juriansz, Pepall and Miller JJ.A.

Between

Andria Da Graca Plaintiff (Appellant)

and

Richard Prouse Defendant (Respondent)

Counsel

Andria Da Graca, acting in person

David Silver, for the respondent

Heard

April 28, 2017

Appeal

On appeal from the order of Justice Meredith Donohue of the Superior Court of Justice, dated September 16, 2015.

Endorsement

[1] The respondent lawyer acted for the appellant in the purchase and mortgaging of real estate in 2011. The appellant later defaulted on the mortgages. She blamed the respondent for her losses and complained of his conduct in correspondence dated April 20, 2012. By May 4, 2012, she had been sued by both mortgagees. She defended neither claim.

[2] The appellant's Statement of Claim claiming damages from the respondent for breach of contract and breach of fiduciary duties was issued on September 3, 2014.

[3] The respondent moved for summary judgment. The motion judge dismissed the appellant's action. The motion judge concluded that the appellant knew of her claim and her damages by at least May 2012. As her claim was commenced more than two years later on September 3, 2014, her claim was out of time.

[4] The appellant appeals from that judgment. She submits that the motion judge erred in her analysis of the issue of discoverability and in concluding that there was no medical evidence of the appellant's incompetence during the relevant time period.

[5] We disagree. The findings of the motion judge and her conclusions were available to her on the record. This includes her finding that the appellant's claim was out of time and that there was no medical evidence of incompetence during the relevant time.

[6] Lastly, before us, the appellant raised numerous factual issues that were not raised in her Notice of Appeal and were therefore not the proper subject matter of her appeal. In any event, we see no palpable and overriding error.

[7] The appeal is dismissed. The appellant is to pay the respondent $3,500 in costs inclusive of disbursements and applicable tax.

R.G. Juriansz J.A.

S.E. Pepall J.A.

B.W. Miller J.A.