Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20200120 DOCKET: C67095

Judges: Strathy C.J.O., MacPherson and Jamal JJ.A.

BETWEEN:

Jean-Pierre N. Asfar and Equity Cheque Card Corporation Limited Plaintiffs (Appellants)

and

Sun Life Assurance Company of Canada, Sun Life Financial INC. and Sun Life Financial Canada Defendants (Respondents)

Counsel: M. Niki Kanavas, for the appellants Stephen H. Shantz and Aida Gregorian, for the respondents

Heard: January 17, 2020

On appeal from the judgment of Justice Shaun Nakatsuru of the Superior Court of Justice, dated May 23, 2019, with reasons reported at 2019 ONSC 3098.

Reasons for Decision

[1] Jean-Pierre Asfar is the principal of Equity Cheque Card Corporation Ltd. (“ECCC”). On April 26, 2018, Mr. Asfar and ECCC (collectively, “the appellants”) commenced an action against the respondents (“Sun Life”) on a number of grounds, including breach of contract, negligent or fraudulent misrepresentation, breach of trust, civil conspiracy and fraud. The action relates to five mortgages provided by Sun Life to the appellants.

[2] Sun Life brought a motion to have the action dismissed on the grounds that it was frivolous and vexatious. The motion judge dismissed this motion on the basis that, while the Statement of Claim was confusing, it was not frivolous or vexatious.

[3] Sun Life brought a motion for summary judgment on the basis that the appellants’ claim was barred by the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. The motion judge granted this motion. He held that Mr. Asfar became aware of his potential cause of action in May 2006. He commenced the action 12 years later, in April 2018. Thus, under both the general two-year limitation period or the ten-year limitation period for claims relating to real property, the appellants’ claims were statute-barred.

[4] The appellants appeal from the motion judge’s decision.

[5] The appellants’ principal argument is that the motion judge erred by concluding that Mr. Asfar discovered his potential claim against Sun Life in May 2006.

[6] We disagree. On this issue, the motion judge said:

From this record, I find it clear that Mr. Asfar knew by May 2006, that an action was the appropriate remedy for the losses and damages he believed that the Plaintiffs suffered at the hands of Sun Life. He took actions that individuals normally would in such a situation. He retained counsel. He sent numerous legal looking documents. He made demands. As well, these actions are consistent with his own affidavit.

I have assessed the substance of what Mr. Asfar was claiming in 2006 with the substance of his claims in his Statement of Claim. The rather rambling and incoherent nature of his allegations both in 2006 and in his Statement of Claim does not make it an easy task. However, I find that they are fundamentally the same. Mr. Asfar takes issue with the financial dealings that he and his company had with Sun Life back in the 1990s and early 2000s. This constitutes the backbone of his claims. They are fundamentally the same.

[7] There is no palpable and overriding error in this conclusion. Accordingly, the appeal is dismissed.

Conclusion

[8] Sun Life is entitled to its costs of the appeal fixed at $3,450, inclusive of disbursements and HST.

“G.R. Strathy C.J.O.”

“J.C. MacPherson J.A.”

“M. Jamal J.A.”