COURT OF APPEAL FOR ONTARIO DATE: 20220414 DOCKET: C69399, C69400 & C69401

Trotter, Coroza and Favreau JJ.A.

DOCKET: C69399 BETWEEN Theofanis Ntakos Plaintiff (Appellant)

and

Konstantinos Ntakos a.k.a. Gus Ntakos, Rubinovich Newton LLP, Fogler Rubinoff LLP and Paul Rooney Defendants (Respondents)

DOCKET: C69400 AND BETWEEN The Estate of Anna Ntakos, deceased, by Peter Ntakos, Tammy Boulias and Olga Fousteris, the representatives of the Estate and Dupont Construction Supplies Ltd. Plaintiffs (Appellants)

and

Konstantinos Ntakos a.k.a. Gus Ntakos, Rubinovich Newton LLP, Fogler Rubinoff LLP and Paul Rooney Defendants (Respondents)

DOCKET: C69401 AND BETWEEN Dupont Construction Supplies Ltd., The Estate of Anna Ntakos Represented by Peter Ntakos, Olga Fousteris, and Tammy Boulias, in their personal capacities and as executors, and Ntakos Holdings Ltd. Applicants (Appellants)

and

Shimmerman Penn LLP, Doug Hartkorn, Brauti Thorning LLP, Konstantinos Ntakos a.k.a. Gus Ntakos, Kreitmaer Inc., Leaside Concrete, Masonry and Landscaping Supplies Ltd., Paul Rooney and 2324973 Ontario Ltd. Respondents (Respondents)

Counsel: Nicholas C. Tibollo, for the appellants David Steinberg, for the respondent Konstantinos Ntakos Michael Kestenberg, for the respondent Fogler Rubinoff LLP William Pepall and Rebecca Shoom, for the respondent Paul Rooney

Heard: February 15, 2022 by video conference

On appeal from the judgments of Justice Paul B. Schabas of the Superior Court of Justice, dated May 20, 2021, with reasons reported at 2021 ONSC 2492.

Favreau J.A.:

[1] The appellants appeal the motion judge’s dismissal of two actions and an application pursuant to a motion for summary judgment. The motion judge found that the proceedings were an abuse of process because they raised issues that had been dealt with in prior proceedings. The motion judge also found that the appellants had previously released their claims against the respondents, and that the claims were barred by statutory limitation periods.

[2] The appellants argue that the motion judge should have dismissed the motions for summary judgment and allowed the proceedings to go to trial. They argue that the motion judge erred by failing to consider recently discovered evidence of fraud, and that a full trial is required to decide the issues between the parties.

[3] In my view, the motion judge made no errors. He carefully reviewed the history of the proceedings between the parties and found that there was no evidence that prior settlements or releases were obtained by fraud. On this basis, he found that no trial was required, and that summary judgment was appropriate.

[4] Accordingly, I would dismiss the appeals.

BACKGROUND

Parties and prior litigation

[5] The litigation stems from disputes between two brothers and the three adult children of a third brother.

[6] John, Konstantinos (“Gus”), and Theofanis (“Ted”) Ntakos owned and ran a construction supply business, Dupont Construction Supplies Ltd. (“Dupont”). Dupont was a wholly owned subsidiary of Ntakos Holdings Ltd. (“Holdings”), of which the three brothers were equal shareholders.

[7] John died in 1995, and his shares in Holdings were transferred to his wife, Anna Ntakos.

[8] After John died, there were disagreements between Gus and Ted over various financial issues related to Dupont and Holdings. In 2003, Dupont and Holdings retained a lawyer, Paul Rooney, to advise them on these issues. Mr. Rooney worked with the companies’ accountants, initially Rubinovich Newton LLP and later Shimmerman Penn LLP, to address the issues. In July 2004, pursuant to Mr. Rooney’s advice, the parties reached an agreement that involved Ted, Gus and Anna signing acknowledgments of the amounts they each received from and owed to Dupont and Holdings.

[9] Anna died in October 2004, after which her shares in Holdings were transferred to John and Anna’s children, Peter Ntakos, Olga Fousteris and Tammy Boulias. All three worked at Dupont.

[10] In 2005, Gus, Peter, Olga, and Tammy bought Ted out of the two companies. The agreement between the parties included forgiveness of the debts owed by Ted to the two companies and a payment to him of $500,000. The parties also signed releases. As described by the motion judge, the release Ted signed was “broad in scope” and included an irrevocable and unconditional release of all current and future claims. At the time, the parties were all represented by counsel. In particular, Gus was represented by Fogler Rubinoff LLP.

[11] As a result of this agreement, Gus held 50 percent of the shares in Holdings while Peter, Olga, and Tammy jointly held the other 50 percent.

[12] Despite this resolution, in February 2006, Peter, Olga and Tammy, on their own behalf and on behalf of Anna’s Estate, started an action against a number of parties, including Gus, Mr. Rooney and Shimmerman Penn LLP (the “2006 Action”). In the 2006 Action, the plaintiffs alleged that Gus misappropriated money from Dupont and that, as described by the motion judge, “he had orchestrated an improper accounting of shareholder distributions and benefits”. Fogler Rubinoff LLP defended Gus in the 2006 Action.

[13] In March 2012, the plaintiffs to the 2006 Action settled with Gus. As part of the settlement, Gus surrendered his shares in Holdings to Peter, Olga and Tammy, and Holdings transferred two properties to Gus. The plaintiffs to the 2006 Action signed a broad release that released Gus and his agents, employees, representatives and solicitors from all current and future claims relating in any manner whatsoever to the 2006 Action.

[14] In 2015, the plaintiffs to the 2006 Action reached a settlement with Mr. Rooney. Again, they signed a broad release, with terms that largely reflected the language in the agreement releasing Gus.

[15] Besides the 2006 Action, Anna’s Estate has been involved in ongoing tax litigation. In 2007, Peter, Olga and Tammy, as Trustees of Anna’s Estate, brought an appeal to the Tax Court of Canada. The appeal dealt with a tax assessment regarding 2004 management fees that the Estate claimed Anna did not receive but for which she signed an acknowledgment prepared by Mr. Rooney. In 2012, the Estate was successful on the tax appeal on the basis of a finding that Anna had not received the management fees: Ntakos Estate v. The Queen, 2012 TCC 409.

[16] In further court proceedings in the Tax Court, Anna’s Estate challenged tax issues dating back from 1998 to 2003. In 2018, the Tax Court released a decision finding that Anna lacked the mental capacity to make certain filings in 2003, relating to income adjustments for 1999, 2001, and 2002: Ntakos Estate v. The Queen, 2018 TCC 224.

2019 proceedings and motions for summary judgment

[17] In early May 2019, Gus and his numbered company, 2324973 Ontario Ltd., brought an application against Holdings and Peter to enforce an arbitration agreement related to a mortgage held by the numbered company.

[18] Two weeks later, Anna’s Estate (through Peter, Tammy and Olga, as representatives of the Estate) and Dupont commenced an action against Gus, Mr. Rooney, Fogler Rubinoff LLP and Rubinovich Newton LLP (the “Estate Action”). The Estate Action relates to events that took place between 1995 and 2005. The plaintiffs allege that Gus misappropriated funds from Dupont in that time period, and that he induced Anna to sign documents acknowledging that she received management fees that she never received. The plaintiffs further allege that the other defendants conspired with Gus and assisted him with these activities.

[19] In November 2019, Dupont, Holdings, and Peter, Olga and Tammy, in their personal capacities and as representatives of Anna’s Estate, brought an application against Gus, 2324973 Ontario Ltd., Mr. Rooney, Shimmerman Penn LLP and others, seeking a declaration that the 2012 settlement with Gus and the 2015 settlement with Mr. Rooney were void ab initio because they were induced by fraud (the “Estate Application”).

[20] In December 2019, Ted brought an action against Gus, Rubinovich Newton LLP, Fogler Rubinoff LLP and Mr. Rooney, alleging wrongdoing by the defendants between 1997 and 2004 (“Ted’s Action”).

[21] Gus, Mr. Rooney and Fogler Rubinoff LLP brought motions for summary judgment in all three proceedings. [1] The motions were based on arguments that the proceedings were an abuse of process because they dealt with matters resolved in the 2006 Action, that the appellants had released the claims through the various releases they signed, and that the proceedings were barred by limitation periods under the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, and the Trustee Act, R.S.O. 1990, c. T.23. With respect to Ted’s Action, the respondents on the appeal also argued that Ted was an undischarged bankrupt and therefore did not have standing to bring the action. Finally, Fogler Rubinoff LLP argued that it did not owe a duty of care to the appellants because the firm only acted for Gus, and not for anyone else.

[22] The motion judge accepted these arguments, granted the motions for summary judgment, and dismissed the actions and application against Gus, Mr. Rooney and Fogler Rubinoff LLP.

[23] In his decision, the motion judge first considered whether summary judgment was appropriate in the circumstances of this case. He reviewed the test for granting summary judgment and concluded that “[t]he issues raised by the moving parties are discrete and, if successful, will avoid a review of the underlying claims which would indeed require lengthy discovery and a trial”.

[24] The motion judge then looked at the three proceedings separately and considered the respondents’ arguments in relation to each proceeding.

[25] He found that the Estate Action was an abuse of process because the claim raised issues that were raised or could have been raised in the 2006 Action. The motion judge rejected the appellants’ arguments that the doctrine of abuse of process should not apply because of the allegations of fraud:

There is no evidence that the 2006 Action and its resolution were tainted by fraud. Indeed, the plaintiffs do not allege any wrongdoing associated with the settlement but state that the only reason they settled with Gus was because they could not afford to continue to litigate against him and decided to prioritize the tax case.

[26] The motion judge also found that the appellants had released the respondents from all three proceedings. He found that the release Ted signed when his shares were bought out prevented him from pursuing his claim. He also found that the releases signed by Peter, Olga and Tammy, on their own behalf and on behalf of Anna’s Estate in 2012 and 2015, precluded them from pursuing the Estate Action. In doing so, the motion judge noted that the releases were very broad and included future claims. He again rejected any arguments that the settlements were tainted by fraud on the basis that there was no evidence of fraud.

[27] The motion judge also found that all three proceedings were statute barred by limitation periods. Specifically, he concluded that the Limitations Act, 2002 had the effect of barring all the claims. With respect to the Estate Action and the Estate Application, he found that Peter, Olga and Tammy were aware of all necessary facts to bring their proceedings at the time of the 2006 Action, and these proceedings were therefore barred by the two-year limitation period: Limitations Act, 2002, s. 4. With respect to Ted’s Action, the motion judge found that Ted’s claim against Mr. Rooney was barred by the ultimate 15-year limitation period in ss. 15(1) and 15(2) of the Limitations Act, 2002, as a result of the transitional provisions in ss. 24(5) and 24(6) which start the limitation period on January 1, 2004: York Condominium Corporation No. 382 v. Jay-M Holdings Limited, 2007 ONCA 49, 84 O.R. (3d) 414, at para. 2, leave to appeal to S.C.C. refused, 31950 (September 6, 2007). With respect to the other claims in Ted’s Action, the motion judge found that Ted was aware of the necessary facts to bring his action by the late 1990s and early 2000s, and thus these claims were barred by s. 4 of the Limitations Act, 2002.

[28] The motion judge found that the Estate Action was additionally barred by the limitation period in s. 38(3) of the Trustee Act, which runs for “two years from the death of the deceased”, which was two years after the date of Anna’s death on October 5, 2004. He acknowledged that fraudulent concealment could toll the limitation period, but noted that the Estate had not pleaded or put forward any evidence of fraudulent concealment: see Zeppa v. Woodbridge Heating & Air-Conditioning Ltd., 2019 ONCA 47, 144 O.R. (3d) 385, at paras. 61-64, leave to appeal refused, [2019] S.C.C.A. No. 91.

[29] In addition, the motion judge found that Ted did not have the capacity to bring his action because he was an undischarged bankrupt. In reaching this conclusion, the motion judge relied on a paragraph in Ted’s statement of claim pleading that he had declared bankruptcy in November 2007, a bankruptcy search conducted by Mr. Rooney demonstrating that Ted’s discharge status as of May 2020 was listed as “suspended”, and Ted’s failure to put forward any admissible evidence demonstrating that he had been discharged from bankruptcy.

[30] The motion judge further found that the appellants had no cause of action against Fogler Rubinoff LLP. He found that the law firm did not owe the plaintiffs a duty of care because it acted for Gus, and did not act for either Dupont or Holdings.

[31] Finally, the motion judge found that the Estate Application should also be dismissed as it faced the same impediments as the Estate Action. To the extent that it raised issues regarding the validity of the arbitration agreement arising from the mortgage held by 2324973 Ontario Ltd., those issues could be addressed in Gus’s outstanding application to enforce the agreement.

[32] The motion judge concluded as follows:

At the end of the day, the actions commenced by plaintiffs simply cannot overcome the passage of time, previous litigation and broadly worded releases. The wrongs complained of, if they occurred, happened too long ago and too many other steps have been taken, including earlier settlements, which put an end to these disputes and prevents them from being relitigated.

ISSUES AND DISCUSSION

[33] The appellants raise several grounds of appeal, which can be summarized as follows:

a. The motion judge erred in finding that this was an appropriate case for summary judgment; b. The motion judge erred in finding that the proceedings were an abuse of process; c. The motion judge erred in finding that the releases signed by the appellants were a bar to the 2019 proceedings; d. The motion judge erred in finding that the 2019 proceedings were statute barred; e. The motion judge erred in finding that Ted was an undischarged bankrupt; and f. The motion judge erred in finding that Fogler Rubinoff LLP did not owe the appellants a duty of care.

[34] Before addressing these issues individually, I observe that the appellants’ arguments are essentially an attempt to re-argue the motions for summary judgment. However, it is not the role of this court on appeal to decide the motions afresh. This court owes deference to the motion judge’s findings of fact and findings of mixed fact and law. The court will only allow the appeal if the motion judge made an error of law, or if he made a palpable and overriding error of fact or mixed fact and law: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8, 10, and 36. I see no such errors in this case.

Issue 1: Appropriate case for summary judgment

[35] The appellants argue that the motion judge erred in finding that this was an appropriate case for summary judgment. Specifically, the appellants take issue with the motion judge’s statement that the issues of abuse of process, limitation periods, and the effect of the releases were “threshold” issues that did “not require a dive into the merits of the allegations of fraud, conspiracy and misappropriation”. The appellants’ position is that the motion judge should not have decided these “threshold” issues without reviewing the appellants’ evidence of fraud, and without giving them a chance to cross-examine Gus. They argue that the respondents’ alleged fraudulent conduct would defeat any arguments that the claims were barred by the doctrine of abuse of process, by limitation periods or by the releases signed by the appellants.

[36] However, this argument fails to acknowledge that the motion judge did consider the allegations of fraud, and he concluded that they did not impede his ability to decide the motions for summary judgment. With respect to the Estate Action, he found that the allegations of fraud were the same allegations that had been made in the prior proceedings. He also found that there was no evidence that the respondents had obtained the settlements or releases by fraud. With respect to Ted’s Action, he also found that there was no evidence that the settlement had been obtained by fraud.

[37] On appeal, the appellants were not able to identify any evidence that defeats these findings made by the motion judge. The appellants purport to rely on an affidavit sworn by Peter in which he makes general comments about only discovering the “extent” of the fraud, as well as Fogler Rubinoff LLP’s alleged involvement in the fraud, after receiving the 2018 Tax Court decision. However, the motion judge reviewed and considered this evidence and found that it did not support a finding that the settlements were obtained fraudulently, nor that the appellants were only able to discover the fraud after the 2018 Tax Court decision.

[38] As properly held by the motion judge, on the motion for summary judgment, the appellants had an obligation to put their best foot forward. The motion judge considered the appellants’ evidence and found that it did not support their position that the Estate Action, the Estate Application, and Ted’s Action should not be dismissed on the basis of the “threshold” issues advanced by the respondents. His findings of fact are entitled to deference, and I see no errors in his assessment of the appellants’ evidence.

[39] In addition, I see no merit to the appellants’ argument that the motion judge should have allowed them to conduct a viva voce cross-examination of Gus. On a motion for summary judgment, r. 20.04(2.2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, gives a motion judge the power to order oral evidence. However, this is an exercise of discretion: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 68. In this case, it was open to the motion judge to decide that oral evidence was not required for him to determine that the appellants failed to put forward evidence that the settlements were obtained fraudulently or that they were unaware of the fraudulent conduct alleged in the 2019 proceedings until the release of the 2018 Tax Court decision.

[40] Accordingly, I see no error in the motion judge’s finding that this was an appropriate case for summary judgment. To the contrary, as found by the motion judge, summary judgment was a perfect tool for addressing the threshold issues raised by the respondents in defence of the 2019 proceedings.

Issue 2: Abuse of process

[41] The motion judge found that the Estate Action was an abuse of process because of the 2006 Action. (Given that Ted was not involved in prior litigation with the appellants, Ted’s Action was not subject to the doctrine of abuse of process.)

[42] The appellants argue that the motion judge should not have found that the Estate Action was an abuse of process because of the allegations of fraud against the respondents and because the claim includes allegations against Fogler Rubinoff LLP, which was not a party to the prior litigation.

[43] I see no error in the motion judge’s analysis.

[44] The motion judge properly considered the relevant legal principles for deciding whether the claims were an abuse of process. Having regard to case law from this court and the Supreme Court of Canada, the motion judge stated that “[t]he law is clear that it is an abuse of process to relitigate a determination by a court in the hope of a different outcome”: see The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354, 145 O.R. (3d) 759, leave to appeal refused, [2019] S.C.C.A. No. 284; Behn v. Moulton Contracting Ltd., 2013 SCC 26, [2013] 2 S.C.R. 227. The motion judge explained that this principle applies to matters that “could have been determined” in prior proceedings: Catalyst, at para. 67, citing Winter v. Sherman Estate, 2018 ONCA 703, 42 E.T.R. (4th) 181, at para. 7, leave to appeal to S.C.C. refused, 38899 (March 19, 2020); Behn, at para. 40. He further explained that this principle applies to proceedings decided on consent: D’Addario v. EnGlobe Corp., 2012 ONSC 1918, 1 B.L.R. (5th) 23, at paras. 268-69, aff’d 2014 ONCA 376, 28 B.L.R. (5th) 191. In addition, the motion judge correctly acknowledged that there are limited circumstances where a party may be entitled to relitigate an issue, such as “when the first proceeding is tainted by fraud or dishonesty”: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 52.

[45] Based on these principles, the motion judge compared the 2006 Action to the 2019 Estate Action and found that all the wrongful acts pleaded in 2019 were already pleaded in 2006. The motion judge described the similarities between the claims as follows:

The Estate Action effectively resurrects the claims made in the 2006 Action and recycles the same allegations concerning the same underlying issues and events that occurred between 1995, when John died, and 2005. A comparison of the two pleadings shows that both actions allege that, following John’s death, Gus and Ted misappropriated funds from Dupont, treating mortgage payments by Dupont on Anna’s home as income, inducing Anna to sign documents acknowledging receipt of funds as “management fees” that were never paid, and that as a result she incurred tax liabilities that were improper. As to Rooney, the allegations against him are virtually identical in both actions, which claim that Rooney assisted Gus in his misappropriations.

[46] With respect to the issue of fraud, as mentioned above, the motion judge found that the appellants had not provided any evidence that the settlement of the 2006 Action was obtained by fraud and that there was no “new evidence which impeaches the original result”. Rather, he noted that the appellants’ own materials stated that they settled the 2006 Action because they could not afford to continue the litigation.

[47] Finally, the motion judge acknowledged that Fogler Rubinoff LLP was not a party to the 2006 Action, but did not find that this affected his conclusion that the Estate Action was an abuse of process. Rather, the motion judge explained that the doctrine of abuse of process is flexible and is meant to prevent the litigation of claims that have already been determined: C.U.P.E., at para. 37, citing Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481 (C.A.), at paras. 55-56, per Goudge J.A. (dissenting), rev’d for the reasons of Goudge J.A., 2002 SCC 63, [2002] 3 S.C.R. 307. In this case, the allegation against Fogler Rubinoff LLP is that it participated in a conspiracy with the other respondents to perpetrate a fraud on the appellants. But the alleged fraud is the same as that which was alleged in the 2006 Action. The motion judge did not err in finding that the doctrine of abuse of process applies to these circumstances. Adding Fogler Rubinoff LLP to the claim does not change the nature of the claim.

[48] In any event, the motion judge also made a finding that there was insufficient evidence to support the claim against Fogler Rubinoff LLP. The appellants’ claim against this party was premised in part on an allegation that it had a conflict of interest because it acted for Gus and for Dupont. In making this allegation, the appellants relied on one invoice from Rubinovich Newton LLP that referred to Fogler Rubinoff LLP as Dupont’s lawyer. The motion judge held that this invoice should have been known to the appellants in the context of litigating the 2006 Action. More importantly, he found that this invoice was inconsistent with all the other evidence which clearly showed that Fogler Rubinoff LLP only ever acted for Gus. Ultimately, he described the invoice as “too thin a reed on which to base a claim”.

[49] The motion judge applied the correct legal principles in finding that the Estate Action was an abuse of process. His findings that there was no evidence that the 2006 settlement was tainted by fraud and that there was no air of reality to the claim against Fogler Rubinoff LLP are entitled to deference. These findings are well supported by the record, and I see no palpable and overriding error.

Issue 3: Releases

[50] The motion judge found that the releases signed by the parties had the effect of releasing the respondents from the 2019 proceedings.

[51] The appellants argue that the motion judge erred because the settlements did not contemplate the claims advanced in 2019, and because the settlements were tainted by fraud. The motion judge addressed these issues, and I see no errors in his findings.

[52] With respect to the 2006 Action, the motion judge noted that the release signed in 2012 in Gus’s favour expressly released him from “unknown claims arising in the future with respect to all matters raised or which could have been raised in the [2006 Action]”. The motion judge also noted that the release signed in 2015 in Mr. Rooney’s favour released him from “not only all known injuries, losses and damages, but also injuries, losses and damages not now known or anticipated but which may later develop or be discovered, including all the effects and consequences thereof”. He further noted that the 2012 release released Gus’s solicitors, which were known to be Fogler Rubinoff LLP at the time. Based on these broad releases, I see no error in the motion judge’s finding that the Estate Action is barred by the releases signed by the appellants. Given the motion judge’s well-supported finding that the settlement of the 2006 Action was not tainted by fraud, there is no basis for disregarding or setting aside the releases.

[53] With respect to Ted’s Action, the motion judge again noted that the release Ted signed in 2005 was very broad. Specifically, he released Gus, among others, from “any and all Claims … which the Releasor has now, or may have in the future … relating to or arising out of any cause, matter or thing whatsoever existing up to and including the date hereof”. The release also released agents and representatives of both Holdings and Dupont, which had the effect of releasing Mr. Rooney. The motion judge found that there was no evidence that the release was obtained by fraud. Again, I find no error in the motion judge’s conclusion that Ted’s Action is covered by the release he signed in 2005. This conclusion is consistent with the wording of the release and the record before the motion judge.

Issue 4: Limitation periods

[54] As reviewed above, the motion judge found that all the claims were statute barred: for the claim against Mr. Rooney in Ted’s Action, by the 15-year ultimate limitation period in the Limitations Act, 2002, ss. 15(1), 15(2); for the other claims in Ted’s Action, as well as the claims in the Estate Action and the Estate Application, by the two-year limitation period in the Limitations Act, 2002, s. 4; and for the Estate Action, additionally, by the two-year limitation period in s. 38(3) the Trustee Act.

[55] The appellants argue that the motion judge erred in making these findings because he did not consider that the respondents fraudulently concealed the misconduct giving rise to these claims.

[56] As already described, the motion judge considered the appellants’ evidence and concluded that there was no evidence that the settlements were obtained by fraud. Under the circumstances, there was no basis for him to find that fraudulent concealment was a triable issue. Therefore, I see no error in the motion judge’s finding that all the claims were statute barred.

Issue 5: Ted’s bankruptcy

[57] Ted argues that the motion judge erred in finding that he is an undischarged bankrupt and therefore did not have the capacity to bring his action. As part of this argument, he brings a motion for fresh evidence for the purpose of showing that he has been discharged from bankruptcy.

[58] There is no need to address this issue given my conclusion that the motion judge made no error in finding that the 2005 release and limitation periods each present a bar to Ted’s Action.

Issue 6: Claims against Fogler Rubinoff LLP

[59] The appellants argue that the motion judge erred in finding that Fogler Rubinoff LLP did not owe them a duty of care.

[60] As described above, the motion judge made a finding of fact that Fogler Rubinoff LLP only acted as Gus’s counsel and never acted for Dupont or Holdings. This finding of fact is supported by the record and is entitled to deference.

[61] Based on this finding, I see no error in the motion judge’s conclusion that the appellants do not have a cause of action against Fogler Rubinoff LLP. The law firm represented Gus, and no one else, and therefore did not owe a duty of care to any individual other than Gus: 790668 Ontario Inc. v. D'Andrea Management Inc., 2015 ONCA 557, 336 O.A.C. 383, at para. 14.

DISPOSITION

[62] For these reasons, I would dismiss the appeals.

[63] As agreed between the parties, the appellants are to pay each respondent costs in the amount of $15,000.00 all inclusive, for a total of $45,000.00.

Released: April 14, 2022 “G.T.T.” “L. Favreau J.A.” “I agree. Gary Trotter J.A.” “I agree. Coroza J.A.”

[1] Rubinovich Newton LLP did not bring motions for summary judgment below and takes no position on this appeal.