Court of Appeal for Ontario

Date: 2017-06-27 Docket: C63138 Judges: LaForme, Hourigan and Paciocco JJ.A.

Between

Ippokratis Velgakis Plaintiff (Respondent)

and

Gus Servinis, Rose T. Filipchuck and Laura Iliagviev (also known as Leora Ilia also known as Leora Laichter) carrying on business (variously) as Papefinch Dental, Pape Finch Dental and Pape Finch Dentistry Defendants (Appellants)

and

Diana Lam Third Party

Counsel

Michelle Gibbs, for the appellants Bruce Day, for the respondent

Heard: June 26, 2017

On appeal from: the order of Justice Mario D. Faieta of the Superior Court of Justice, dated November 25, 2016.

Reasons for Decision

[1] The respondent felt his lower denture work was improperly done and needed to be fixed. He commenced an action in Small Claims Court for $25,000. The appellants filed a defence and issued a third party claim.

[2] The respondent then commenced this action for $100,000 of general damages and $50,000 of special damages in the Superior Court against the same parties, with the addition of one defendant. He moved to transfer the action from the Small Claims Court and/or consolidate the actions in the Superior Court.

[3] The appellants' motion for summary judgment on the basis the action was time-barred was dismissed. They appeal that decision and essentially complain that the motion judge misinterpreted and misapplied the law relating to discoverability. We disagree.

[4] The sole issue before the motion judge was whether the respondent's action was statute-barred because the two-year limitation period established by s. 4 of the Limitations Act, S.O. c. 24, Sched. B (the Act), had expired.

[5] Under s. 5(1)(a) of the Act, a claim is discovered on the date the claimant knew, or ought to have known, the material facts giving rise to the claim, and that a proceeding would be an "appropriate" means to seek to remedy the claim. When an action is "appropriate" depends on the specific factual setting of each individual case: 407 ETR Concession Company Limited v. Day, 2016 ONCA 458, 403 D.L.R. (4th) 485, at paras. 33-34. Finally, when s. 5(1)(b) of the Act is applied, deciding whether legal action would be "appropriate" takes into account what a reasonable person with the abilities and in the circumstances of the plaintiff ought to have known — a modified objective test: Presidential MSH Corporation v. Marr Foster & Co. LLP, 2017 ONCA 325, at para. 18.

[6] In Presidential MSH, at paras. 17-20, this court clarified certain principles governing cases such as the one before us on the issue of discoverability:

1. A legal proceeding against an expert professional may not be appropriate if the claim arose out of the professional's alleged wrongdoing but may be resolved by the professional himself or herself without recourse to the courts, rendering the proceeding unnecessary.

2. The defendant's ameliorative efforts and the plaintiff's reasonable reliance on such efforts to remedy its loss are what may render the proceeding premature. The plaintiff and defendant must have engaged in good faith efforts to right the wrong it caused.

[7] For our purposes, the motion judge correctly applied the modified objective test and made three critical findings:

(i) It was appropriate for the respondent to make reasonable efforts to have his complaints regarding his dentures resolved on a consensual basis without quickly resorting to potential litigation.

(ii) It was appropriate for the respondent to rely on the appellants' agreement — indicating that repairs may be made at no additional fee — and pursue a consensual resolution of his complaints.

(iii) The first day on which a reasonable person in the respondent's circumstances ought to have known that a proceeding would be an appropriate means to seek to remedy this claim was the date the respondent's request to have his dentures repaired at no cost to him had been refused by all the appellants.

[8] The motion judge ultimately concluded the date of refusal by the appellants meant that the limitation period did not begin to run until then. The findings of the motion judge were amply supported by the evidence and were entirely reasonable. We see no error in the decision.

[9] The appeal is dismissed. The respondent is awarded costs of the appeal in the amount of $10,000 inclusive of disbursements and HST.

"H.S. LaForme J.A." "C.W. Hourigan J.A." "David M. Paciocco J.A."