Court File and Parties

Court of Appeal for Ontario Date: 20240531 Docket: COA-23-CV-0531

Huscroft, Trotter and Coroza JJ.A.

Between:

Catherine Acs, in her capacity as Trustee of the Hunt Family Growth Equity Trust, Stuart Hunt, in his capacity as Trustee of the Hunt Family Growth Equity Trust, Pamela Sarracini, in her capacity as Trustee of the Hunt Family Growth Equity Trust and David Hunt, by his Litigation Guardians Catherine Acs and Stuart Hunt Plaintiffs (Respondents)

And:

James B. Love*, Love & Whalen*, Legacy Private Trust* and BDO Canada LLP Defendants (Appellants*)

Counsel: Cynthia L. Spry, Brendan Monahan and Aaron Gold, for the appellants Megan Shortreed, Michael Fenrick and Emma Wall, for the respondents

Heard: May 27, 2024

On appeal from the judgment of Justice Cory A. Gilmore of the Superior Court of Justice, dated April 19, 2023.

Reasons for Decision

[1] This is an appeal from the order of the motion judge dismissing the appellants’ motion for summary judgment and declaring that the respondents’ action was commenced within the limitation period.

[2] The appellants argue that the respondent’s lawyer, Mr. Bronstein, was informed of Ms. McMullen’s view of the tax consequences surrounding the creation of the trust in a 2015 telephone conversation, and that the claim was discovered on January 4, 2016 at the latest. That is the day Mr. Bronstein received a copy of a 2005 memorandum to file written by Ms. McMullen, in which she raised the concern about tax consequences.

[3] We do not agree.

[4] Whether a limitation period has expired is a question of mixed fact and law that is subject to review for palpable and overriding error. It is plain from a reading of the decision that the motion judge applied the relevant statutory provisions and the caselaw, in particular the decision of the Supreme Court in Grant Thornton LLP v. New Brunswick, 2021 SCC 31, [2021] 2 SCR 704. She did not misapprehend or misapply the evidence or otherwise err.

[5] The appellant makes arguments on appeal that were considered and rejected by the motion judge. The motion judge found that the information known to Mr. Bronstein as of January 4, 2016 was insufficient to ground a plausible inference of liability. At most, as a result of the 2005 memo and 2015 telephone call Mr. Bronstein knew of a possible disagreement between Ms. McMullen and Mr. Love on a tax issue that was not part of his mandate. It was open to the motion judge to conclude that this was a case in which expert advice was required for the respondents to discover their claim given the complexity of the tax issue. It follows, as the motion judge concluded, that the limitation period began to run either on February 22, 2016, when a due diligence obligation was triggered, or February 24, 2017, when the expert report was received. In either event, the action was not time barred.

[6] The motion judge did not err in determining the limitations question in the absence of a cross-motion from the respondents. The parties agreed that the issue was appropriate for summary judgment. The parties were required to put their best foot forward and the motion judge made the findings necessary to dispose of the matter. There was no genuine issue remaining that required a trial. No question of unfairness arises.

[7] The appeal is dismissed. The respondent is entitled to costs in the agreed amount of $50,000, all inclusive.

“Grant Huscroft J.A.”

“Gary Trotter J.A.”

“S. Coroza J.A.”