Court of Appeal for Ontario

Date: 2017-06-01 Docket: C63277

Judges: Hourigan, Benotto and Roberts JJ.A.

Between

Alexey Kondratiev and Smart Games Canada, Inc. Plaintiffs (Appellants)

and

Oleg Boyko Defendant (Respondent)

Counsel

For the appellants: Michael D. Wright and Geneviève Cantin

For the respondent: Orestes Pasparakis and Andrea Campbell

Heard: May 23, 2017

On appeal from: The order of Justice E. Stewart of the Superior Court of Justice, dated December 21, 2016, with reasons reported at 2016 ONSC 6822.

Reasons for Decision

[1] The appellants appeal the order of the motion judge striking their statement of claim without leave to amend, pursuant to r. 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The statement of claim was struck on the grounds that it is time-barred and an abuse of process.

[2] With the exception of para. 39 of the statement of claim, we see no basis to interfere with the motion judge's order.

[3] The other factual allegations made against the respondent with respect to events arising before 2013 are identical to the allegations made against him in a proceeding against related parties in 2009, in which he was not named as a party. It is clear on the face of the pleadings, therefore, that, as the motion judge determined, those pre-2013 claims against the respondent were discovered more than two years before the commencement of this action. We see no error in the motion judge's rejection of the appellants' evidence, as not credible, that the 2013 claims were not discovered until 2015. This determination was open to her on the record. Accordingly, those claims are time-barred by virtue of s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.

[4] We agree with the appellants' submission that the motion judge did not consider whether the new claim against the respondent, arising out of the dissolution of one of the corporate defendants in 2013, as set out in para. 39 of the statement of claim, was also statute-barred or an abuse of process. We note that in his notice of motion, the respondent only sought to strike paras. 26 to 38 of the statement of claim as statute-barred and similarly focussed his abuse of process grounds on the argument that the claims were out of time.

[5] On the face of the pleading of para. 39, which, for the purpose of a motion under r. 21, the motion judge had to take as true, this claim would not be statute-barred because it was not discovered by the appellants until October 2013. As a result, on its face, it would not be "doomed to fail", as the motion judge found was the case with respect to the other pleaded causes of action, nor in those circumstances would it constitute an abuse of process.

[6] Given her other conclusions, the motion judge did not address the respondent's submissions that para. 39 is unintelligible and fails to identify the necessary material facts to support a claim against the respondent, nor the appellants' motion that the 2015 action be consolidated with the other related proceedings. In consequence, those issues remain to be determined.

Disposition

[7] Accordingly, we allow the appeal to the extent that we set aside the motion judge's order with respect to para. 39 of the statement of claim. If pursued, the parties' respective motions in relation to para. 39 of the statement of claim and consolidation are remitted for hearing, as the civil team leader of the Superior Court of Justice may direct.

[8] In light of the appellants' modest success on appeal, we do not disturb the costs award of the motion judge nor do we make any award of costs on appeal.

"C.W. Hourigan J.A."

"M.L. Benotto J.A."

"L.B. Roberts J.A."