Court File and Parties
COURT FILE NO.: 63/06
DATE: 2006-10-17
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: Swarn Kaur v. Muneshwar Deopaul
BEFORE: Justice Cameron
COUNSEL: Patrick Di Monte, for the Plaintiff/Appellant Vincent Stabile, for the Defendant/Respondent
HEARD: October 3, 2006
ENDORSEMENT
CAMERON J.
[1] The Plaintiff commenced an action against the Defendant, a barrister and solicitor, for negligence in the sum of $100,000 plus interest and costs. The Defendant was the solicitor for the Plaintiff until May 5, 1998.
[2] On that date the solicitor applied for and was removed from the record by Mr. Justice MacKenzie. The Plaintiff was not allowed to object.
[3] Mr. Justice MacKenzie then proceeded on May 5, 1998 to hear a motion by Manulife Insurance Company for judgment based on an oral agreement between its solicitor and the solicitor for the Plaintiff. He found there was an agreement and granted judgment for the insurance company enforcing the settlement of a payment of $5,000 to the Plaintiff. The Court of Appeal upheld the judgment on September 13, 1999, relying on Sherer v. Paletta (1966), 1966 286 (ON CA), 57 D.L.R. (2d) 532 (Ont. C.A.).
[4] Notwithstanding 3 letters to the Defendant in 2004, there was no indication from the Defendant that he was denying the claim on a substantive basis or pursuant to the Limitations Act.
[5] On July 20, 2004 the Defendant acknowledged a letter of July 16, 2004 indicating the matter had been reported to LPIC.
[6] On July 21, 2004 LawPro denied liability.
[7] On September 12, 2005, the Plaintiff commenced an action in the Small Claims Court for $100,000 plus interest and costs but waived the claim in excess of $10,000.
[8] On January 16, 2006 the Claim was amended to include a claim for her new solicitor’s fees in the Court of Appeal and legal fees to Manulife and others, what she called “repair costs”. She also added an allegation that at no stage of the many steps taken by the Plaintiff did the Defendant object since it was in his interest for the Plaintiff to attempt to mitigate her damages.
[9] The Defendant moved, before pleading, by Notice of Motion January 4, 2006, in the Small Claims Court for an order determining the applicability of a limitation period and thereby determining that the Plaintiff’s claim was statute barred and for summary judgment dismissing the action.
[10] On January 23, 2006, Deputy Judge Paul M. Iacono, Q.C. gave judgment dismissing the Plaintiff’s action as statute barred.
[11] The Plaintiff appeals to the Divisional Court for an order that the judgment be set aside and the matter set down for trial.
[12] There are 3 issues in this appeal:
- Is a motion for summary judgment permissible in the Small Claims Court?
- When did the limitation period start to run, May 5, 1998 or September 13, 1999?
- Did the Defendant waive the limitation period?
1. Jurisdiction of Small Claims Court to hear a motion for summary judgment to determine a point of law or a point of mixed fact and law.
[13] There is no rule in the Small Claims Court Rules that allows a motion for summary judgment.
[14] Rule 1.03 provides:
1.03 (1) General Principle – These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every proceeding on its merits in accordance with section 25 of the Courts of Justice Act.
(2) Matters Not Covered in Rules – If these rules do not cover a matter adequately, the court may give directions and make any order that is just, and the practice shall be decided by analogy to these rules, by reference to the Courts of Justice Act and the Act governing the action and, if the court considers it appropriate, by reference to the Rules of Civil Procedure.
[15] The Courts of Justice Act provides in s. 25:
- Summary hearings – The Small Claims Court shall hear and determine in a summary way all questions of law and fact and may make such order as is considered just and agreeable to good conscience.
[16] In Clayton v. Zorn, Claim No. T96340/04, a medical malpractice action, the plaintiff did not commence an action until 20 months after expiry of the limitation period. The plaintiff would not lead any expert evidence at trial to prove a standard of care and causation. The defendant had introduced evidence to rebut them. The court said:
There is no provision in the Rules of the Small Claims Court to bring a motion for summary judgment. In Wolf v. Siedenberg, [2003] O.J. No. 3067, Maefs, Deputy Judge set out the interrelationship between Rules 1.03(2) and 12.02(2) of the Rules of the Small Claims Court and Rule 21.01(1) dismissing an action on a point of law.
Similarly a Defendant should be able to bring a motion for summary judgment similar to that provided for in Rule 20.01(3) of the Rules of Civil Procedure to bring a motion for summary judgment, strike out the claim and dismiss the action.
The move to dismiss the action prior to trial should not be exercised lightly and should be granted only where there is no genuine issue for trial.
There is no need to assess credibility in this action, it was commenced outside the applicable limitation period and the Plaintiffs have no objective evidence of negligence-malpractice on the part of the treating physician.
The result of any trial is a forgone conclusion and the action is therefore dismissed.
[17] I am satisfied that there is jurisdiction in the Small Claims Court to dismiss the action, notwithstanding the absence of a specific provision, if the limitation period has clearly expired and there is no question about it.
2. When does the limitation period start?
[18] The Defendant ceased to act for the Plaintiff on May 5, 1998. A claim in negligence must have both liability and some damages before the claim can start to run. The damage suffered was the loss of the balance of her claim in excess of the $5,000 she received. There was no need to go to the Court of Appeal to find a forum.
[19] In Kenderry-Esprit (Receiver of) v. Burgess, MacDonald, Martin and Younger, 2001 28042 (ON SC), [2001] O.J. No. 776, Molloy J. stated at para. 17:
The discoverability rule is a rule of general application to prevent a limitation period from beginning to run before a plaintiff can reasonably be aware of the existence of a cause of action: Peixeiro v. Haberman, 1997 325 (SCC), [1997] 3 S.C.R. 549, 151 D.L.R. (4th) 429. The discoverability rule clearly extends in negligence actions to awareness of damage: Kamloops (City) v. Nielsen, 1984 21 (SCC), [1984] 2 S.C.R. 2, 10 D.L.R. (4th) 641 at p. 38 S.C.R., pp. 683-84 D.L.R. However, as was pointed out by Major J. in Peixeiro (at para. 18), the exact extent of the loss of the plaintiff need not be known for the cause of action to accrue. The question to be considered is “when the material facts on which [the cause of action] is based have been discovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence”: Central Trust Co. v. Rafuse, 1986 29 (SCC), [1986] 2 S.C.R. 147, 31 D.L.R. (4th) 481 at p. 224 S.C.R., p. 535 D.L.R.
Again at para. 19:
…that the possibility of solicitor’s negligence having been raised in the first action, the limitation period for a negligence action against those solicitors may well start to run before there is a conclusive finding by the court in that action as to the interpretation of the document in question. Once the issue of invalidity is raised, the plaintiff is on notice that there may be a problem and must exercise reasonable diligence to determine whether there are facts giving rise to a cause of action. The date upon which the plaintiff can be said to be in receipt of sufficient information to cause the limitation period to commence will depend on the circumstances of each particular case.
[20] I find the limitation period expired, at the latest, on May 5, 2004. The Small Claims Court action was out of time.
3. Did the Defendant do anything to waive or extend the limitation period?
[21] After May 5, 1998 the Plaintiff could point to nothing said or done by the Defendant which could constitute a promise or assurance which was intended to affect their legal relationship and which was to be acted on. Further, the representee must establish then, in reliance on the representation, he acted on it or in some way changed his position. There is no duty on an insurer to advise an insured of a limitation period. Ongoing negotiations do not constitute a waiver of a limitation period where they are “no more than normal dealings between parties attempting to resolve an insurance claim”. See E. Loukidelis J. in CAA Insurance Company (Ontario) v. Botsis, 2006 28552 (ON S.C. D.C.).
[22] There is no evidence from Ms. Kaur; only from a clerk in her lawyer’s office.
[23] There was no waiver or estoppel in this case.
4. Standard of Review
[24] Where the issue is one of pure law the standard is correctness. Where the issue is one of fact the standard is “no palpable or overriding error”. Where the issue is one of mixed fact and law the standard is somewhere between the two: Housen v. Nikolaisen, [2002] 2 S.C.R.
[25] Here Iacono, Deputy Judge, considered all the right issues and gave weight to all the evidence, on which there is no dispute.
CONCLUSION
[26] The claim is dismissed.
COSTS
[27] The Defendant shall file his claim for costs within 15 days after release of this order. The Plaintiff may reply within 10 days thereafter.
CAMERON J.
DATE: October 17, 2006