Court of Appeal for Ontario

Date: 20240209 Docket: COA-23-CV-0601

Benotto, Roberts and Sossin JJ.A.

BETWEEN

Mei Sun Plaintiff (Appellant)

and

Wenming Cheng a.k.a. Rex Cheng, Haitao Wang a.k.a. James Wang, Peaceland Realty Group Inc. a.k.a. Royal LePage Peaceland Realty and Homelife Best Choice Realty Inc. Defendants (Respondents)

Counsel: Andrew Jia, for the appellant Scott Gfeller and Gavin Tighe, for the respondents Haitao Wang, a.k.a. James Wang, and Peaceland Realty Group Inc., a.k.a. Royal LePage Peaceland Realty Joseph Juda and Evan Farrugia, for the respondents Wenming Cheng, a.k.a. Rex Cheng, and Homelife Best Choice Realty Inc.

Heard: January 29, 2024

On appeal from the judgment of Justice Edward M. Morgan of the Superior Court of Justice, dated May 3, 2023, with reasons reported at 2023 ONSC 2708.

Reasons for Decision

[ 1 ] The appellant’s action was dismissed under r. 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, on the basis that it was started outside the two-year limitation period under the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.

[ 2 ] The appellant signed an agreement to buy a home from a developer, “Teefy.” The transaction was scheduled to close on October 10, 2018, but the appellant defaulted. Teefy brought an action against the appellant on November 16, 2018 for breach of the agreement (the “Teefy action”). She defended the action, in part on the basis that certain real estate agents pressured her into signing the agreement. On February 2, 2021, following a two-day trial, judgment was granted for Teefy against the appellant for nearly $200,000.

[ 3 ] On March 30, 2020, the appellant issued a statement of claim against respondents Rex Cheng and James Wang. Cheng and Wang are real estate agents, and the corporate respondents are their brokerage firms. The appellant alleged breaches of fiduciary duty and negligence.

[ 4 ] The respondents moved under r. 20 for an order dismissing the action because the appellant commenced the action outside the two-year limitation period under the Limitations Act, 2002. The appellant argued that she did not discover the relationship between herself and the respondents until approximately November 5, 2020, and was therefore not aware of the existence of a claim based on their breaches of duties owed to her until then.

[ 5 ] On the motion, both parties raised the Teefy action, in which Teefy sought damages from the appellant following her default. The appellant argued, among other things, that the respondents had testified under oath that they were not her agents, and the respondents argued that she had described them as her agents in her statement of defence to the Teefy action. In fact, in her statement of defence to the Teefy action she pleaded that Cheng was her agent. Her statement of claim in this action says that she contacted Wang “and asked [him] for assistance in representing her as a real estate agent.” She claimed that Wang introduced her to the Teefy development.

[ 6 ] On this basis, the motion judge found that the appellant was alive to the status of Cheng and Wang as her agents.

[ 7 ] The appellant raises several issues on appeal, all of which relate to her main submission that the motion judge erred in determining that she knew that Wang and Cheng were her agents at the time the purchase agreement was signed. She relies in part on the fact that she did not discover two documents that purport to include her signature – a mortgage approval and a referral agreement – until the Teefy action. Before the motion judge, she submitted that the documents were not signed by her and would have warned her of the fact that the agents were collaborating against her. On appeal, she alleges that the motion judge erred by treating the referral agreement as creating a cause of action and not a discovery event.

[ 8 ] We do not accept these submissions.

[ 9 ] The discoverability period begins when the plaintiff discovers or, through the exercise of reasonable diligence ought to have discovered, the underlying material facts of the claim. The appellant has specifically pleaded that Cheng and Wang were her agents in the previous action, and the motion judge accepted that fact.

[ 10 ] Her submission that she could not have known about her claim for breach of fiduciary duty until she saw the referral agreement does not alter the analysis. As the motion judge said, this “confuses knowledge of the material facts on which the claim is based with the knowledge of the legal conclusion to be drawn from those facts.” She pleaded in the Teefy action that the real estate agents pressured her. She knew that Wang and Cheng were her agents. She therefore knew the material facts underlying the claim.

[ 11 ] We are not persuaded that the motion judge erred, and, in any event, his decision is entitled to deference.

[ 12 ] The appeal is dismissed with costs in the agreed upon amount of $10,000 to the respondents Wang and Royal LePage Peaceland Realty, and $7,000 to the respondents Cheng and Homelife Best Choice Realty.

“M.L. Benotto J.A.”

“L.B. Roberts J.A.”

“L. Sossin J.A.”