Court of Appeal for Ontario

Date: 2018-04-10 Docket: C64311

Judges: Pepall, Pardu and Miller JJ.A.

Between

Godstone Co-Ownership Inc. Plaintiff (Appellant)

and

Maple Ridge Real Estate Investments Corp., DUCA Financial Services Credit Union Ltd., Lydia Luckevich, RGL Property Services Inc., 1320950 Alberta Ltd., 1336364 Alberta Ltd., 1336365 Alberta Ltd., 1336366 Alberta Ltd., 1336367 Alberta Ltd., Peter Zhang, Cui Hua Sun, Francisco Cendana, Elizabeth Cendana, Dave Lall, Carmen Mangal, Joe Daniel, Jim Milne, Cheryl Forrin, Noel Morrison, Ricardo Archer, Hyacinth Hines, Wendy Wang, Jian Huang, Saundrea Coburn, Daniel Johnston, Marjorie Johnston, Marc Lean and Janet Louise Hilson

Defendants (Respondents)

Counsel

Joseph J. Neal, for the appellant

Catherine Francis, for the respondent DUCA Financial Services Credit Union Ltd.

Sean Dewart and Brett Hughes, for Martin Rumack

Heard and released orally: April 10, 2018

On appeal from: the order of Justice G.A. Hainey of the Superior Court of Justice, dated August 4, 2017, with reasons reported at 2017 ONSC 4694.

Reasons for Decision

[1] The appellant appeals from the August 4, 2017 order of Hainey J., in which he dismissed the appellant's motion for leave to amend the statement of claim issued in 2012 to add the lawyer, Martin Rumack, as a party defendant.

[2] The motion judge determined that the appellant's claim against Rumack could not possibly succeed because there was no evidentiary basis for the allegation that he acted for the appellant in the co-ownership transaction in 2007. In addition, the claim was statute-barred because the appellant discovered its potential claim against Rumack more than two years since the date the appellant moved to amend its claim to add Rumack, which was October 26, 2016.

[3] The record clearly establishes that each of Rumack, Marc Lean (who was the appellant's lawyer), and DUCA (for whom Rumack did act) deny that Rumack acted for the appellant. That said, for the purposes of this appeal, there is no need to address the appropriate scope of the evidentiary record on a r. 5.04 motion to add a party, as the appeal must fail on the basis that the claim against Rumack is statute-barred.

[4] The motion judge found that the appellant's claim was statute-barred because the appellant discovered its potential claim in 2007 when it allegedly retained Rumack or, alternatively, in June 2014 when it examined Lean and DUCA on their knowledge of Rumack's involvement.

[5] In our view, the motion judge was correct in this determination. The appellant was fixed with the knowledge of its lawyer Lean; the appellant's questions in cross-examinations in 2014 show knowledge of the claim by the appellant; and the appellant's representative, Ye Long, admitted that the appellant knew of Rumack's involvement in November 2013.

[6] The appeal is dismissed. The appellant is to pay Rumack $8,000 in costs and DUCA $5,000 in costs, both inclusive of disbursements and applicable tax.

"S.E. Pepall J.A."

"G. Pardu J.A."

"B.W. Miller J.A."