COURT OF APPEAL FOR ONTARIO
CITATION: Caruso v. Bortolon, 2021 ONCA 842
DATE: 20211123
DOCKET: C68970
Gillese, Trotter and Nordheimer JJ.A.
BETWEEN
Gaspare Caruso
Plaintiff (Appellant)
and
Robert Bortolon, Dean Bortolon, John Hanna Nissan and Martin Citron
Defendants (Respondents)
Matthew Kersten, for the appellant
Adam Jarvis, for the respondents
Heard: November 18, 2021 by video conference
On appeal from the order of Justice Gordon D. Lemon of the Superior Court of Justice, dated December 17, 2020, with reasons reported at 2020 ONSC 7933.
REASONS FOR DECISION
Introduction
[1] The appellant commenced an action against the defendants alleging that they defrauded him out of shares he claimed to own in 1947755 Ontario Limited (‘the company”). He pleaded that Robert Bortolon fraudulently executed documents that stripped him of his shares on January 25, 2017. He commenced his action more than two years later, on April 23, 2020.
[2] The respondents defended the claim by asserting that the appellant was never a shareholder in the company; instead, he was a temporary director and was properly removed from that position on January 27, 2017. They further pleaded that the action is statute barred: Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.
[3] The respondents successfully moved for summary judgment on the basis that there was no genuine issue for trial on the limitations issue. The appellant now challenges the fairness of the proceedings, the correctness of the decision to dismiss his action, and applies to adduce fresh evidence.
[4] We refuse to admit the fresh evidence and we dismiss the appeal.
The Refusal to Grant an Adjournment
[5] The appellant submits that the motion judge erred in not granting him an adjournment to file further documentation to demonstrate fraudulent activity on the part of the respondents in January of 2017.
[6] In refusing the adjournment request, the motion judge carefully examined the lengthy history of the proceedings leading up to the hearing date on November 30, 2020. The motion had already been adjourned a number of times. The case was ready to be argued on August 24, 2020 but was adjourned due to a conflict of interest on the part of the appellant’s previous counsel, an issue raised by the presiding judge (not the motion judge). At that time, the presiding judge ordered that the parties were not permitted to file further materials on the motion.
[7] The case was spoken to again on September 25, 2020 and on October 19, 2020. On the latter occasion, new counsel for the appellant brought a motion to permit examinations for discovery to take place prior to the hearing of the motion. The request was denied. On November 16 and 26, 2020, appellant’s counsel confirmed that he was prepared to proceed with the motion on November 30, 2020.
[8] In light of this history, the motion judge refused the adjournment request. He concluded that it was necessary for the motion to proceed before him that day. Moreover, as the motion judge observed in his written reasons: “The issue for the motion is not whether Mr. Caruso was deprived of his shares in September of 2017. The issue is whether he should have brought the action before it was commenced in April of 2020.” The materials that the appellant sought to file on the day of the motion had no bearing on this issue.
[9] We see no error in the motion judge’s decision to refuse an adjournment. The motion judge considered the adjournment request against the backdrop of the multiple proceedings between the parties and the previous delays. This was a discretionary decision that is entitled to substantial deference on appeal: Laski v. BMO Nesbitt Burns Inc., 2020 ONCA 300, at para. 13.
[10] This ground of appeal is dismissed.
The Action is Time-Barred
[11] On the limitations issue, the motion judge reviewed the documents tendered by the parties and concluded that the appellant’s alleged injury, loss, or damage was discoverable by February of 2017. Although the appellant swore in an affidavit that he only discovered his claim in 2019, the motion judge found that this evidence was undermined by the appellant’s affidavit and cross-examination in a related proceeding that demonstrated his awareness of his claim in February of 2017. This was supported by evidence of the appellant’s former counsel that he was retained by the appellant as early as February 2017.
[12] The motion judge also considered the appellant’s failure to reply to a Request to Admit certain facts that related to the limitations issue. The deemed admissions arising from this failure supported the conclusion that the appellant was aware of his alleged injury, loss, or damage by February or March of 2017.
[13] The appellant submits that the motion judge erred in relying on the appellant’s deemed admissions because he was self-represented when he was served with the Request to Admit. However, the appellant subsequently retained counsel and was represented at the hearing of the summary judgment motion. Counsel did not seek to withdraw the appellant’s deemed admissions, neither on consent, nor with leave of the court: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 51.05.
[14] The totality of the evidence supported the motion judge’s conclusion that the action was time-barred. As of February 2017, the appellant was possessed of information that amounted to more than mere suspicion of a potential claim. Indeed, in a letter sent on his behalf on February 15, 2017, referring to Dean Bortolon holding himself out as the sole shareholder of the company, his lawyer asserted: “we believe this is a total fraud.” That the appellant may have subsequently gathered more evidence in support of his claim did not detract from the motion judge’s conclusion that the claim itself was discoverable in February 2017, and that it was time-barred. In the circumstances, there was no genuine issue for trial.
The Fresh Evidence Application
[15] The appellant applies to adduce fresh evidence on appeal. In our view, this is nothing more than an attempt to circumvent the motion judge’s refusal to grant an adjournment, which we find to have been justified. Through proper diligence, this material could have been tendered on the summary judgment motion in accordance with the schedules set by other judges leading up to the hearing date. Moreover, this material does not bear on the correctness of the motion judge’s analysis of the limitations issue.
[16] The application to adduce fresh evidence is dismissed.
Conclusion
[17] The appeal is dismissed.
[18] Given the inappropriate allegations of misconduct made against respondents’ counsel, both in the appellant’s affidavit and in his Factum, we award costs to the respondents on a substantial indemnity basis in the amount sought by the respondent, namely $9,000, inclusive.
“E.E. Gillese J.A.”
“Gary Trotter J.A.”
“I.V.B. Nordheimer J.A.”