Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20230601 DOCKET: C70569

Pepall, van Rensburg and Harvison Young JJ.A.

BETWEEN

Oslyn Lewis Plaintiff (Appellant)

and

Lifetime Developments, Centre Court Developments and Temperance Residences Inc. Defendants (Respondents)

Oslyn Lewis, acting in person Matthew Lerner and Sean Blakeley, for the respondents

Heard: March 18, 2023

On appeal from the judgment of Justice Susan Vella of the Superior Court of Justice, dated June 21, 2022.

Reasons for Decision

[1] The appellant commenced an action in May 2021 suing for a real estate commission alleged to have been owed to him and in respect of which he first made a demand in early 2012. After delivering a statement of defence denying that a commission was owed, and asserting that the action was barred by the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, the respondents brought a summary judgment motion. The motion judge dismissed the action after concluding that the action was out of time and there was no genuine issue requiring a trial. She made it clear that she was not determining the substantive merits of the action. The appellant appeals the dismissal of his action. He has also brought a motion to adduce fresh evidence. He asks for an order from this court remitting the summary judgment motion to the Superior Court for a rehearing.

[2] For the reasons that follow, we dismiss the appeal. We see no error in the motion judge’s decision to dismiss the action due to the expiry of a limitation period.

[3] The appellant’s action is for a commission on the respondents’ purchase on December 22, 2011 of a property on Temperance Street in Toronto (the “Property”). He claims that, as a business broker, in October 2011 he had entered into an agreement with Mel Pearl, a real estate developer and the principal of the respondent Lifetime Developments, to receive a commission on any real estate opportunity he introduced to Lifetime. The parties signed a written agreement on October 6, 2011 that confirmed Lifetime’s agreement to compensate the appellant based on successfully completed transactions.

[4] Shortly after entering into the agreement, the appellant notified Mr. Pearl that the Property was for sale. A few months later, Mr. Pearl, for Lifetime and its joint venture partners, negotiated with the vendor to acquire the Property. The deal closed on December 22, 2011, with title to the Property taken in the name of the respondent Temperance Residences Inc. – a joint venture between Lifetime, the respondent CentreCourt Developments, and others.

[5] Shortly after the purchase of the Property, the appellant approached Mr. Pearl and demanded that Lifetime pay him a commission. Mr. Pearl refused. The appellant has produced an invoice to Lifetime dated January 23, 2012 for $632,800. On February 3, 2012, the appellant sent Mr. Pearl an email, again demanding payment of the commission, and he suggested that they settle the matter amicably. Mr. Pearl did not respond to this email. On February 23, 2012, counsel for the appellant wrote to Mr. Pearl and Andrew Hoffman, CEO of CentreCourt, demanding payment and expressing his hope that it “not become necessary for the matter to become adversarial”.

[6] These facts are largely uncontested. What is disputed is the appellant’s assertion that Mr. Pearl used a racial slur when refusing to pay the commission. Mr. Pearl’s evidence is that this allegation was a fabrication. There is also evidence from the appellant that he sent annual invoices to the respondents. The respondents claim not to have received any invoices from the appellant.

[7] The action was commenced on May 3, 2021. After delivering a statement of defence, the respondents brought a motion for summary judgment, seeking dismissal of the action as time-barred by the two-year limitation period under s. 4 of the Limitations Act, 2002.

[8] In response to the motion for summary judgment, in addition to providing an affidavit confirming essentially the chronology set out above, the appellant delivered a supplementary affidavit. The affidavit stated that the appellant had been subject to “psychological conditions resulting from the respondents’ actions”, and alleged promises and representations made to him by Mr. Pearl’s business partner, Sam Herzog, in which Mr. Herzog promised to look into the issue and asked the appellant not to commence a legal claim without first calling him.

[9] The appellant’s position at the motion was that he did not discover his claim until 2019 when he learned that Mr. Herzog had died in 2017. Alternatively, he asserted he was incapable of commencing his action within the two-year limitation period due to his psychological condition, pursuant to s. 7 of the Limitations Act. In the further alternative, he claimed that there was a tolling agreement that, according to s. 22 of the Limitations Act, suspended the operation of the limitation period.

[10] The motion judge concluded that the respondents had established that the appellant knew of his claim by no later than February 23, 2012, when he retained a lawyer to demand payment of the commission. By that date, the appellant had already made two demands of Mr. Pearl for payment, which were refused, and he subsequently sent an email and annual invoices demanding payment plus interest. The motion judge also observed that the appellant had adduced no evidence to support his claim that he was incapable of commencing a proceeding because of his psychological condition or that there was a tolling agreement. At best the evidence suggested there may have been a forbearance agreement with Mr. Herzog, which was insufficient to constitute a tolling agreement within the meaning of the Limitations Act.

[11] Accordingly, there was no genuine issue requiring a trial. The motion judge granted summary judgment for the respondents.

[12] The appellant asserts that the motion judge erred in concluding that the limitation period in respect of his claim had expired and in dismissing his action, and he seeks to admit fresh evidence in support of the appeal. The appellant raises three arguments.

[13] First, the appellant submits that the motion judge erred in concluding that there was no tolling agreement that would suspend the running of the limitation period. He relies on his evidence that, after he made demands for payment, Mr. Herzog had given him assurances such that he thought he would be paid, and it would not be necessary to commence legal action.

[14] The motion judge accurately stated that “in order to establish a tolling agreement under s. 22 of the Limitations Act was in place, the agreement requires an express and bilateral agreement between the parties that contains a clear and unambiguous request by one party to toll a limitation period and an equally clear and unambiguous affirmative response by the other”.

[15] The appellant has not demonstrated an error in the motion judge’s conclusion that there was no tolling agreement. The motion judge correctly stated and then applied the legal test for a tolling agreement under s. 22 of the Limitations Act, as per this court’s decision in Hamilton (City) v. Metcalfe & Mansfield Capital Corp., 2012 ONCA 156, 347 D.L.R. (4th) 657, at para. 80. The evidence of the appellant’s discussions with Mr. Herzog, referred to in his supplementary affidavit, do not meet the requirements for a tolling agreement. Nor has the appellant put forward any fresh evidence that would have changed the determination of this issue or the outcome of the motion. Mr. Herzog passed away in 2017. No different result ensues from the appellant’s recent unsuccessful efforts to obtain information from Mr. Herzog’s estate. There is no error in the motion judge’s rejection of the appellant’s assertion that the limitation period was tolled.

[16] For his second ground of appeal the appellant argues that the motion judge erred in not affording him the opportunity to provide, at a later date, evidence to support his claim under s. 7 of the Limitations Act. In accordance with s. 7(1), the two-year limitation period does not run during any time in which the person with the claim: (a) is incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition; and (b) is not represented by a limitation guardian in relation to the claim. Section 7(2) provides for a presumption of capacity unless the contrary is proved.

[17] An overarching submission made by the appellant is that, for various reasons, including that he is Black and the respondents are White and the recipients of preferential treatment, he was not treated fairly at the hearing when he was not afforded the opportunity to obtain further evidence about his psychological incapacity. He asserts that fresh evidence, in the form of a psychodiagnostic assessment report dated April 27, 2023, supports his claim, and should be considered by this court. Also included in the fresh evidence is a transcript of the hearing in the court below.

[18] With respect to s. 7, the motion judge noted that the appellant had not adduced evidence in the record that he was incapable of commencing a proceeding in respect of his claim because of his psychological condition. The appellant does not challenge the assessment that his evidence at first instance was insufficient. Rather he contends that the fairness of the hearing demanded that he should have been permitted an adjournment so that he could obtain the psychodiagnostic report that he now asks this court to accept as fresh evidence.

[19] Having carefully reviewed the transcript, we see no indication that the appellant was treated unfairly by the motion judge. In fact, although the appellant had filed his supplementary affidavit late, and had delivered a reply factum, the motion judge explained to him that she would consider both, as there was no objection by the respondents. And there is nothing to indicate that the appellant requested the opportunity to obtain more evidence, nor did he ask for an adjournment of the summary judgment motion hearing.

[20] We have also reviewed the psychodiagnostic report filed with this court as proposed fresh evidence. While the report, which is based on the appellant’s self-report, speaks to his emotional reaction to the events that are the subject matter of the action and his ongoing distress, it does not speak to his mental health at the relevant time, that is, when the cause of action arose. Even if this report had been before the motion judge, it would not have affected the outcome of the motion. Furthermore, we agree with the respondents that the fact that the appellant made demands for payment of the commission and instructed and retained counsel to do so on his behalf is inconsistent with his assertion that he lacked the psychological capacity to make a claim.

[21] Finally, the appellant relies on this court’s decision in Thermal Exchange Services Inc. v. Metropolitan Toronto Condominium Corporation No. 1289, 2022 ONCA 186, 467 D.L.R. (4th) 698, to assert that his good faith negotiations with Mr. Herzog suspended the operation of the limitation period. In Thermal Exchange this court upheld a motion judge’s finding that a claim for the payment of invoices in the context of a running account had not been discovered within the meaning of s. 5(1)(a)(iv) of the Limitations Act while the plaintiff was led to believe that the defendant would take care of the payment. However, there are important differences between that case and the appellant’s case.

[22] Here the appellant’s claim crystallized on a precise date, and there was no acknowledgment of the debt. In fact, the letter from the appellant’s counsel makes it clear that legal proceedings were contemplated. The determination of whether an action is time-barred is a fact-specific exercise: 407 ETR Concession Company Limited v. Day, 2016 ONCA 709, 133 O.R. (3d) 762, at para. 34, leave to appeal refused, [2016] S.C.C.A. No. 509; Nasr Hospitality Services Inc. v. Intact Insurance, 2018 ONCA 725, 142 O.R. (3d) 561. There was no error in the motion judge’s assessment of the facts in this case or in her conclusion that the operation of the limitation period was not suspended.

[23] Accordingly, we dismiss the fresh evidence motion and the appeal, and award costs in favour of the respondents in the agreed and inclusive sum of $5,000.

“S.E. Pepall J.A.”

“K. van Rensburg J.A.”

“A. Harvison Young J.A.”