INTRODUCTION

[1] The Plaintiff West York International Inc. ("West York") alleges it is owed the sum of $1,465,000 CDN in connection with consulting and management services provided to the Defendants Importanne Marketing Inc., Ciril Zovko and Importanne Investment D.O.O. (collectively the "Defendants").

[2] The Defendants deny the existence of any agreements to pay consulting and management services and state that any services provided by West York were paid in full approximately ten to fifteen years ago. The Defendants now move for summary judgment against West York on the grounds that there is no genuine issue requiring a trial pursuant to Rule 20.04 of the Rules of Civil Procedure. Further, the Defendants assert West York's action is statute barred pursuant to the Limitations Act, 2002, S.O. 2002, c.24, Sch. B.

OVERVIEW

The Parties

[3] The Plaintiff West York is a corporation incorporated pursuant to the laws of the Province of Ontario. West York carries on business in the construction industry providing, among other services, consulting and management services.

[4] The Principal and Director of West York is an individual named Adam Kunst ("Kunst").

[5] The Defendant Importanne Marketing Inc. ("Importanne Marketing") is a corporation incorporated pursuant to the laws of the Province of Ontario. The Principle of Importanne Marketing is the Defendant Ciril Zovko ("Zovko").

[6] The Defendant Importanne Investment D.O.O. ("Importanne Investment"), according to the Defendants, no longer exists. West York submits that at all material times Importanne Investment was a company incorporated under the laws of the state of Croatia having offices in the City of Zagreb.

The Projects

[7] Beginning in the early 1990's, Kunst and Zovko through their respective corporate entities were jointly involved in various construction projects in both Canada and Croatia.

[8] While the Defendants maintain that any relationship between the parties ended in or about 2003, West York states that the parties had a continuing relationship beyond 2003.

[9] It is the position of West York and Kunst that West York entered into an agreement with the Defendants whereby West York was to, and did perform consulting and management services for the Defendants on a number of projects including:

(a) the Christopher Court Project in Guelph, Ontario;

(b) the Oakville Project in Oakville, Ontario;

(d) the Importanne Galleria (the Ibler of TRG Project) in Zagreb, Croatia.

[10] West York further claims that the parties were members of a "Syndicate", which Kunst believes to be comprised of investors for the purpose of general real estate development. The Defendants deny that there was any such Syndicate and the issue of whether or not a "Syndicate" between the parties existed was previously adjudicated in depth by the Honourable Justice C. Campbell on July 10, 2002. Justice Campbell ultimately determined there was no contractual agreement between the parties (of which Kunst was specifically identified) in forming a "Syndicate" or otherwise. In 2004, leave to appeal the decision of Justice Campbell was denied.

[11] The Defendants submit that there is no genuine legal issue requiring a trial. No monies are owed to West York and the applicable limitation periods have long since expired. The Defendants seek an order dismissing West York's action.

[12] West York seeks an order dismissing the summary judgment motion brought by the Defendants and further seeks direction that outstanding issues between the parties be determined at a trial. West York submits that there is a genuine issue for trial and that it has demonstrated a viable claim for relief based on the actions, omissions and verbal assurances of the Defendants, in particular Zovko, with respect to verbal assurances requiring a determination at trial based on testimony and a judicial assessment of credibility of all participants to the projects in question.

THE ISSUE

[13] The primary issue on this Rule 20 summary judgment motion is whether there is a genuine issue requiring a trial.

POSITIONS OF THE PARTIES

Position of the Plaintiff West York

[14] West York submits that it entered into an agreement with the Defendants pursuant to which a Syndicate was formed to build a portfolio of construction projects to make profit for the participants in the Syndicate. Those projects were located in Ontario and Zagreb, Croatia.

[15] When projects of the Syndicate failed to realize a profit, or the full amounts owing to West York and Kunst for additional services provided to the Defendants, Kunst was consistently assured by Zovko that monies owing would be paid from profits to be realized on future projects and in particular, the Brijuni project.

[16] Monies owing to West York were acknowledged by Zovko both as the Director of the corporate Defendants and in his personal capacity, in an Agreement of Settlement executed by Kunst in his personal capacity, and on behalf of West York and Zovko in his personal capacity and on behalf of Importanne Investments, in 1995.

[17] West York further submits it was not until June of 2009 that it became clear to West York the Defendants were not going to pay the debt owed to West York, and an invoice was sent to the Defendants promptly at that time.

[18] As a result of a refusal or failure on the part of the Defendants to pay that invoice, West York commenced this action shortly thereafter.

[19] West York submits that on all the evidence before the Court, the issues in dispute between the parties require a trial for a fair and just resolution.

Position of the Defendants (Moving Party)

[20] The Defendants submit there are no genuine factual or legal issues which require a trial.

[21] The factual issues raised by West York are not credible and are disingenuous and a trial is not required to resolve these issues. The Defendants submit the allegations of monies owed do not stand up to scrutiny and West York has provided no evidence that raises genuine factual issues requiring a trial.

[22] While West York alleges monies are owed to it pursuant to contracts made with the Defendants and/or services provided, West York has not provided any evidence of the work performed, existence of contracts or any outstanding invoices.

[23] However, the Defendants submit they have provided contracts, invoices paid pursuant to such contracts and evidence of proof of payments. The Defendants contend there is no basis for the allegations made by West York in its claim.

[24] Further, the Defendants rely upon the provisions of the Limitations Act, 2002 and the Limitations Act. Even if West York had a viable claim, which is denied by the Defendants, they assert that the applicable limitation periods have long since expired. The Defendants seek an order for summary judgment dismissing West York's claim.

ANALYSIS

The Law – Rule 20 and Full Appreciation Test

[25] Rule 20.04 states that summary judgment shall be granted if the court is satisfied that there is "no genuine issue requiring a trial" with respect to a claim or defence. In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and the judge may exercise any of the following powers for that purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

Weighing the evidence;
Evaluating the credibility of a deponent; and
Drawing any reasonable inference from the evidence.[^1]

[26] In Combined Air Mechanical Services Inc. v. Flesch,[^2] a five-member panel on the Ontario Court of Appeal developed the approach to be taken in interpreting the amended Rule 20. The Court of Appeal concluded there are three types of cases amenable to summary judgement:

(1) Where the parties agree that it is appropriate to determine an action by way of a motion for summary judgement (does not apply in the case at bar);

(2) Where the claims or defences are shown to be without merit; and

(3) Where the trial process is not required in the interest of justice.

[27] In the cases where summary judgment is sought under the third category of cases (where the trial process is not required in the interest of justice), the Court of Appeal developed the "full appreciation test":

In deciding if these powers should be used to weed out a claim as having no chance of success or be used to resolve all or part of an action, the motion judge must ask the following question: can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of trial?

We think this "full appreciation test" provides a useful benchmark for deciding whether or not a trial is required in the interest of justice. In cases that call for multiple findings of fact on the basis of conflicting evidence emanating from a number of witnesses and found in a voluminous record, a summary judgment motion cannot serve as an adequate substitute for the trial process. Generally speaking, in those cases, the motion judge simply cannot achieve the full appreciation of the evidence and issues that is required to make dispositive findings. Accordingly, the full appreciation test is not met and the "interest of justice" requires a trial.[^3]

[28] The Court of Appeal further stated in document-driven cases or where there are limited contentious factual issues or where the record can be supplemented to the requisite degree at the motion judge's discretion by hearing oral evidence on discrete issues, the full appreciation test may be met.[^4]

[29] In deciding whether to grant summary judgment, the motion judge must consider if this is a case where meeting the full appreciation test requires an opportunity to hear and observe witnesses, to have the evidence presented by way of a trial narrative, and to experience the fact-finding process first-hand. Unless a full appreciation of the evidence and issues is attainable on the motion record, the motion judge cannot be satisfied that the issues are appropriately resolved on a motion for summary judgment.[^5]

[30] The new Rule 20 does not change the evidentiary obligations on a summary judgment motion. Each side must put its "best foot forward" and the court is entitled to assume that the record contains all the evidence which the parties would present at trial.[^6]

[31] In response to evidence supporting a motion for summary judgment a responding party may not rest solely on the allegations or denial in the party's pleadings, but must set out, through admissible evidence, specific facts showing why there was a genuine issue regarding a trial.[^7]

[32] The evidentiary record before the Court on this Summary Judgment Motion is not voluminous and is easily appreciated. The entire Motion Record from both parties consists of the affidavit of Ciril Zovko, five exhibits, the affidavit of a law clerk from the law firm representing the Defendants with three exhibits, the affidavit of Adam Kunst with three exhibits. However, Exhibit A purporting to be a copy of West York's invoice for $250,000 is not included and neither is the exhibit stamp regarding that document sworn by West York's counsel. Mr. Zovko and Mr. Kunst were both cross-examined on their affidavits.

[33] This is exactly the type of case considered by the Court of Appeal in Combined Air where there are limited contentious factual issues and a Record that is not voluminous. I find that it is also a case where meeting the full appreciation test does not require an opportunity to hear and observe witnesses, to have the evidence presented by way of a trial narrative and to experience the fact finding process first hand. It is not a case where the full appreciation test is not met and the "interest of justice" requires a trial. There is no further or better evidence that can be provided at trial. The documents are few and the principals have been cross-examined at length. For the following reasons, I find that the full appreciation of the evidence and issues required to make dispositive findings can be achieved by way of summary judgment and do not accept that this full appreciation can only be achieved by bringing the full forensic machinery of a trial to bear on this case.

[34] In applying the full appreciation test, I have weighed the evidence, evaluated the credibility of the deponents and drew reasonable inferences from the evidence in accordance with Rule 20.04.

The Syndicate

[35] West York and Kunst allege that in January 1990 they entered into an agreement with the Defendants to form a Syndicate for the purposes of developing a portfolio of projects to be undertaken in Canada and Croatia commencing the Guelph and Oakville projects. The issue of whether or not a syndicate between these parties existed was previously adjudicated by Justice C. Campbell on July 10, 2002 in the case of Key Designs Ltd. v. Zovko. It is clear that Justice Campbell ultimately determined that there was no contractual agreement between the parties (of which Kunst is specifically identified) in forming a Syndicate or otherwise.[^8] Further, in 2004, leave to appeal the decision of Justice Campbell was denied.[^9]

[36] I find that the parties did not form an agreement to enter into a Syndicate for the purposes of developing a portfolio of projects to be undertaken in Canada and Croatia commencing with the Guelph and Oakville projects. There is no evidence of any such Syndicate being formed. There is no documentation or agreement tendered by West York on this summary judgment motion evidencing the formation of any such Syndicate for the purpose of developing a "portfolio" of projects either in Canada or Croatia. Certainly, there is no such evidence of any such Syndicate commencing with the Guelph and Oakville projects.

[37] Rather, I find the evidence supports that the parties were co-venturers in a number of individual projects which at all material times were joint projects.

THE JOINT PROJECTS

Christopher Court

[38] I find that Christopher Court was a low-income residential housing project in Guelph, Ontario developed jointly by Zovko and Kunst. The property on which the project was built was jointly owned by two corporations, respectively controlled by each of Zovko and Kunst.

[39] I further find that Christopher Court was developed and turned over to the City of Guelph in the early 1990's. The project was profitable for both parties with each receiving approximately $500,000 through their respective corporations. I find there was no agreement of any kind that West York or Kunst to be paid a consulting fee or management services for the Christopher Court project. Further, at no time did Kunst provide consulting services to the project. West York provided no evidence to support this assertion.

[40] In his affidavit, Kunst asserts that he did provide management services on the project but did not charge for them. This is denied by Zovko who deposes that at no time did Kunst provide consulting services to the Christopher Court project. By Kunst's own admission, he never charged for any management services for the reason that this is was the way that Zovko wanted it. This latter assertion lacks credibility. I find that there was no agreement of any kind that Kunst or West York would be paid a consulting fee for management services for the Christopher Court project. There is an absolute lack of evidence to support West York's position. Rather, Christopher Court was a profitable project for both Zovko and Kunst with each party receiving approximately $500,000 through respective corporations.

Oakville Joint Venture

[41] In the early 1990's Zovko, Kunst and an individual Barry Citron (collectively the "co-venturers"), and several other investors pursued the development of a property in Oakville, Ontario. West York maintains that Kunst on behalf of West York invested the sum of $600,000 given directly to Zovko, the alleged controlling mind of the Syndicate. It is further alleged that at all material times Zovko assured Kunst that the Syndicate would realize substantial profits.

[42] Having found that there was no such vehicle as the alleged Syndicate, I find that each co-venturer contributed $600,000 CDN, as a down-payment on the property and took equal responsibility for a vendor take-back mortgage in the amount of $3 – $4 million dollars. The co-venturers retained legal counsel to purchase the property. All parties provided their portion of the down-payment funds to legal counsel. I accept the evidence of Zovko that at no time did he directly or did the Defendants receive $600,000 CDN from Kunst, West York or from any other party. All funds in respect of the joint ventures were transferred through the appropriate legal counsel retained by the co-venturers in connection with the project. Further, in late 1993, the mortgagee retook possession of the property due to default on the mortgage payments. Each co-venturer was aware of the default in payment and that all the investments were lost and the land sold by way of foreclosure.

[43] There is no doubt that the Oakville project was a failed investment. It is the evidence of Kunst that he made two mortgage payments and refused to make a third after receiving a telephone call from Mr. Citron who withdrew from the venture because no-one was making mortgage payments. Zovko was also forced to withdraw from the venture and the mortgagee eventually retook possession of the property in late 1993.

[44] The evidence is clear. Kunst and West York were aware of the default in payment and that all the investments were lost and the land was sold by way of foreclosure.

[45] When the Oakville project failed to realize a profit, Kunst alleges that Zovko assured him that money would be made in Croatia on the projects to be undertaken there. To go one step further, Kunst relied on assurances from Zovko that he would get his money back. In paragraph 11 of West York's Statement of Claim, it is alleged that these assurances were made continuously by Zovko as recently as June of 2009.

[46] Zovko maintains that at no material time did he make any assurances to Kunst or West York regarding the liability of the joint venture. Further, at no time since the failure of the investment did he assure Kunst or West York that West York would recover its investment.

[47] What is clear from Mr. Kunst's own evidence on his cross-examination is that there was no guarantee in writing from Mr. Zovko or any of the Defendants to pay Kunst or West York any money from the Oakville failed investment.[^10] No guarantee was sought by Mr. Kunst, no guarantee was written or exists and on Kunst's own evidence, Zovko made no promises to him. Kunst alleged that Zovko said that the Oakville project would be profitable for everyone but when it failed, Kunst further alleged that Zovko said he would make good on the investments down the road regarding other projects in which the Syndicate was involved.

[48] Not only have I found that there was no guarantee or promise that Zovko would make good on the lost investment in the Oakville joint venture to Mr. Kunst or West York, I also find that there was no agreement in writing that Kunst or West York would see a return on lost investment out of other Syndicate projects. Quite to the contrary, I have found as Justice Campbell has found that there is no evidence of any Syndicate involving these parties and therefore no basis for the claims being advanced by West York for the payment of consulting and management services regarding the failed Oakville joint venture. West York has provided no documentation to support its claim that $600,000 CDN was paid directly to the Defendants or to support the existence of a Syndicate. There is no evidentiary support for either West York's demand for the return of its investment of $600,000 CDN or that it is owed consulting and management services provided to the Defendants regarding the failed Oakville joint venture.

[49] I accept the evidence of Mr. Zovko that at no material time were assurances made by the Defendants regarding the liability of a joint venture. Further, at no time since the failure of the investment did any of the Defendants assure either West York or Kunst that West York would recover its investment.

The Esplanade Project

[50] Contrary to the absence of documentary evidence regarding the Christopher Court and Oakville Joint Venture Projects, there does exist a contract evidencing the agreement between the parties for the Esplanade Project.

[51] On or about January 4, 1993, Importanne Marketing entered into a construction management contract with West York. The parties signed a standard form of construction management contract known as "CCA Document No. 5, 1988" (the "Esplanade Contract"). The Esplanade Contract states that West York will provide construction management services for a project known as "The Esplanade Shopping Centre and Parking Garage" in Zagreb, Croatia ("Esplanade Project").

[52] West York alleges that the Esplanade Project was another project of the Syndicate but also states that West York was paid for the Project in respect of the construction management contract.

[53] Work on the Esplanade Project was completed on or about April 1993. In accordance with the Esplanade contract, all construction management services were performed by West York and accordingly, West York was paid $500,000 CDN by Importanne in 1994. The Defendants state and I find that no outstanding amounts are owing in relation to the Esplanade Project or the Esplanade Contract. The Esplanade Contract can be found at Exhibit B attached to the Affidavit of Ciril Zovko sworn June 7, 2012. The Affidavit of Adrianna Tattoni, law clerk can be found in the supplementary motion record at Tab 3. Attached to her affidavit at Exhibit C can be found evidence of the payments to West York pursuant to the Esplanade Contract dated January 4, 1993 in the amount of $500,000 CDN. Production of these documents were in answer to an undertaking given by Mr. Zovko at his cross-examination on August 20, 2012. I accept this evidence as proof that West York was paid in full pursuant to the construction management contract between Importanne Marketing Inc. and West York Construction International. Said management contract did provide for the payment of $500,000 CDN by the owner Importanne Marketing Inc. to the construction manager West York Construction International for services provided.

[54] At paragraphs 10 and 11 of the Affidavit of Adam Kunst sworn August 7, 2012, he admits that West York was paid for the Project in respect of the construction management contract.

[55] I find that neither West York, nor any other corporation owned or operated by Kunst, was retained to provide "consulting services" for the Esplanade Project. At no material time were consulting services ever provided and no amount is owing to West York inasmuch as all amounts were paid pursuant to the Esplanade Contract.

Importanne Galleria

[56] Again, West York entered into an agreement with Importanne D.O.O. evidenced by contract relating to the development project known as "Importanne Galleria" located in Zagreb, Croatia. The contract is dated March 30, 2001, a copy of which can be found attached to the affidavit of Ciril Zovko sworn June 7, 2012 at Exhibit C. This copy is in Croatian. He certified translated copy into English can be found in the Supplementary Motion Record, Affidavit of Adrianna Tattoni sworn September 14, 2012 marked as Exhibit A. A copy of this Contract was produced in answer to the undertaking given by Zovko at his cross-examination on August 20, 2012. The parties agreed that West York as contractor would provide construction services regarding the heating and cooling system for the Importanne Galleria. Pursuant to the agreement, West York was to be paid $186,305 CDN for performing those services set out in the agreement. By invoice dated September 26, 2003 found in the Supplementary Motion Record at page 27, West York invoiced Importanne D.O.O. the sum of $186,305 CDN for those services set out in the contract between the parties dated March 30, 2001. I find that the invoice was paid in full as evidenced by payments made in 2003 and 2004 by Importanne Galleria to West York totalling the sum of $186,305 CDN. Evidence of those payments can be found at Exhibit B attached to the Affidavit of Adrianna Tattoni sworn September 14, 2012.

[57] While West York acknowledges receipt of the $186,305 CDN payment for work in connection with Importanne Galleria, Kunst claims the invoice provided in the Defendants' materials is false. He claims to have attached the "real" invoice for the amount of $250,000 to his Affidavit sworn August 7, 2012. At his cross-examination, the invoice was not legible. In answering undertakings given at his cross-examination on the Affidavit, Kunst could not produce a legible copy of this invoice and a copy has not been attached to the Affidavit of Adam Kunst sworn August 7, 2012 at Exhibit A. As no such document has been produced, it has not found its way into the evidentiary record before the Court. The absence of such evidence is critical to the claim of Kunst. In paragraphs 12 and 13 of his Affidavit, he deposes that Importanne Galleria Project was another of the Syndicate's projects from which a profit was, according to Zovko, to be realized for its members. West York did enter into a separate agreement with Importanne for the provision of construction services in respect of Importanne Galleria, but the fee for said services was not $186,305 CDN but rather $250,000 CDN. West York's invoice has not been produced in evidence.

[58] Further, West York submits that in payment of the invoice, Mr. Zovko, on behalf of Importanne, promised to transfer to Kunst, on behalf of West York, an apartment in Croatia which had a stated value of $250,000 CDN. This transfer was to be made in payment for the invoice submitted in furtherance of the construction services provided by West York on the Project. Contrary to the agreement, Mr. Zovko decided to pay the West York invoice rather than transfer the apartment to West York and paid only the sum of $186,305 CDN.

[59] I find there is no evidence provided by West York to support any monies owing in connection with the Importanne Galleria Project. Quite to the contrary, all of the evidence supports the position of the Defendants that any monies due and owing under the Contract for Importanne Galleria has been paid in full. Further, there is no evidence in respect of the transfer of an apartment with no description other than the apartment was located somewhere in Croatia. Not only is there no evidence as to the location of the apartment, there is also no evidence as to how its value was determined at $250,000 CDN. There is no evidence of any agreement between Kunst and Zovko that the transfer of the apartment would satisfy the contract amount of $186,305 CDN. Although Kunst alleged that there was a "real" invoice in the amount of $205,000 CDN in his Affidavit, he could not produce a legible copy of this invoice on this motion.

[60] I find that there was no evidence provided by West York to support that any monies were owing in connection with this Project by Importanne D.O.O. to West York. In addition, I find that this was the last business transacted between West York and any of the Defendants.

[61] I accept the evidence of Zovko in respect of Importanne Galleria set out at paragraphs 23 – 25 of his Affidavit as well as the evidence of Adrianna Tattoni together with Exhibits A and B attached to her affidavit all of which are found in the Supplementary Motion Record.

[62] I do not accept as credible the version of events described by Mr. Kunst which is neither supported by any documentary evidence nor does it appear to be plausible in the face of the totality of the Defendants' evidence which is documented and supported by Kunst's own admission that $186,305 CDN had been paid by the Defendants and received by West York. There was no evidence to support that West York of Kunst is entitled to any further payment from the Defendants in respect of the Importanne Galleria project or from the transfer of an apartment identified no better than being located somewhere in Croatia.

PROMISES TO PAY

[63] Kunst deposes that Zovko made numerous promises to pay Kunst and West York for profits not realized on various projects of the Syndicate and for the shortfalls in payment to West York and Kunst for construction management services provided to the Defendants. While the alleged promises were made by Zovko on a continuing basis, Kunst asserts the existence of the debt itself was specifically acknowledged by Zovko in the Agreement of Settlement executed by Zovko on behalf of the corporate defendants and personally on or about June 9, 1995 in the amount of one million DEM (Deutschmarks).

[64] Furthermore, Kunst deposes that the "Brijuni Muzil Project" ("Brijuni Project") where Zovko asked and received the assistance of Kunst in securing the project with the Croatian government, was to fund repayment of the debts owed to Kunst and West York by the Defendants. He alleges the Brijuni Project appears to remain viable to this day and is currently in the approval stage.

[65] Further, Kunst deposes that there were continued assurances by Zovko over the years. However, when he and Kunst met at wedding in June of 2009, Zovko became evasive when discussing the debt, Kunst realized for the first time that he and West York were in danger of not being paid money that was owed to them by the Defendants with the result that Kunst promptly prepared and delivered an invoice to Zovko in the amount of $1,465,000 CDN representing the amount outstanding as between the parties as of June 2009. The invoice does not appear anywhere in West York's responding motion record.

[66] I accept the evidence of Zovko that the Defendants at no material time promised to pay West York, Kunst or any related parties for payment of monies, outside of the monies deposed to by Zovko in his Affidavit. No promises were made to West York, Kunst or any related parties in connection with the development of the Brijuni Project. There is no evidence of any Syndicate in which the defendants and West York are involved regarding this project. There is no evidence of any Syndicate involving the parties regarding this project. There is no evidence in respect of this project at all with the exception of a short article from the Business Journal released January 25, 2011 which discusses among other things the final competition for the selection of investors for the project. It does not say anything about the parties or any Syndicate in which they might be involved. I find the article in respect of the Brijuni Project to be no evidence at all in respect of any agreements between the parties or assurances by Zovko that West York would be paid from any profits arising from the Brijuni Project. There is simply no evidence to support the claims of Kunst in this regard.

[67] I accept the evidence of Zovko that occasionally between 2003 to June 2009, he socialized with Kunst. I accept his evidence that at no time during these approximately six years did Kunst indicate he or West York were entitled to additional money.

[68] I accept that in June 2009 Kunst and Zovko attended a wedding at which Kunst told Zovko that he needed money as "times were tough". Zovko indicated to Kunst that when faced with the need for money, Zovko would go to the bank to borrow. There were no further discussions regarding monies.

[69] I accept Zovko's evidence that less than a week after the wedding, he received an invoice in the amount of 1.2 million dollars CDN from West York for payment of services allegedly provided to various companies some 15 years prior. Zovko immediately instructed his legal counsel to respond to Kunst in writing and deny the existence of debts and any obligation to any amount.

[70] As for the Agreement of Settlement dated June 9, 1995 between West York and Kunst personally and Importanne Investment D.O.O. and Zovko personally, this Agreement can be found at Exhibit B attached to the Affidavit of Kunst in the Responding Motion Record. I note the Agreement of Settlement was first disclosed and relied upon during the course of this motion for summary judgment. It is not pleaded anywhere in West York's Statement of Claim which I find quite curious as this document is relied upon by West York as evidence that Importanne Investments D.O.O. and Zovko jointly agreed to pay West York and Kunst one million Deutschmarks by bank drafts or certified cheques. Not only is the Agreement of Settlement not pleaded but there are no pleadings that speak to any conduct on the part of West York or Kunst to pursue payment or make demand for payment on two other investors should Importanne Investment D.O.O. and/or Zovko fail to make any payments for any reason. The evidence is that neither West York or Kunst made any demand as set out in the Agreement of Settlement when no Deutschmarks were received from Importanne Investment D.O.O. or Zovko pursuant to this Agreement.

[71] Kunst submits that notwithstanding receiving payments for the Esplanade and Importanne Galleria projects, the parties felt that they still had a score to settle and the Agreement of Settlement itself raises a genuine issue requiring trial. West York and Kunst question why such an Agreement was necessary if all amounts were paid in full. Why would there be an Agreement to pay more money if no other monies were owed? West York and Kunst submit that there were other monies owed to repay Kunst for the losses he had incurred over the years through Zovko's association in the Syndicate in Oakville and everywhere else. His evidence in respect of the Agreement of Settlement can be found in the transcript of his cross-examination from pages 72 – 82. Kunst asserts the Agreement was drafted by Zovko so that he could use it in his costs calculations for the project. While on its face, the Agreement of Settlement speaks to final settlement for the construction management service provided by West York and Kunst to Importanne Investments D.O.O. and Zovko on the Esplanade project, according to Kunst the Agreement was entered into long after the project was completed and was repayment for losses he or West York had sustained in the Syndicate on other projects including Oakville and everywhere else.

[72] Kunst and West York did not receive their one million Deutschmarks. Neither did they pursue the other investors set out in the Agreement. Rather, some 14 or 15 years later, the one million Deutschmark figure of June 1995 is converted to $1,465,000 CDN which is the amount claimed by West York.

[73] The Defendants submit that the document does evidence a final settlement regarding the Esplanade Project. The Agreement is not pleaded in the Statement of Claim neither are there any pleadings that speak to what happened regarding this Agreement. There is no factual foundation pleaded in the Statement of Claim as the Agreement materializes on this summary judgment motion. The Agreement speaks to events which occurred some 17 years ago and there is no evidence by West York apart from this document evidencing payment to be made in order to make whole and repay investment losses by Kunst and West York by Zovko for losses incurred on various Syndicate projects undertaken over the years.

[74] I have found as Justice Campbell had found that there was no Syndicate involving these parties and there was no portfolio of projects involving the parties to be developed through such a Syndicate. There is no evidentiary foundation for the payment of other monies to either repay West York and Kunst for any claim for consultation or management services or repayment of any money by Zovko to West York and Kunst to satisfy West York and/or Kunst for any investment losses. There are no guarantees or promises in writing to this effect.

[75] When Zovko was cross-examined regarding the repayment schedule contained within the Agreement of Settlement, he could not recall whether repayments were made.

[76] In his cross-examination, it was Zovko's evidence that the Agreement of Settlement replaced the Construction Agreement for $500,000 CDN on the Esplanade Project. The half million dollars CDN was converted to a payment schedule for one million Deutschmarks and that the amounts were paid in full. By way of undertaking Zovko produced documentation evidencing the payment of $500,000 CDN. His evidence was that every Agreement signed by any of the Defendants was paid in full. However, he had no recollection whether monies were paid on the repayment dates set out on the Agreement of Settlement after the Esplanade Project was finished. Regardless of the repayment schedule, Zovko maintained that West York was paid in full. Whether West York was paid on the exact dates listed, his answer was that he did not know. Documentation was produced proving the payment of the $500,000 CDN.

[77] On this motion, we have the competing versions of evidence as to what the Agreement of Settlement means. The evidence comes from the best parties to give that evidence, namely, Kunst and Zovko. On the evidentiary record before this court, no better evidence can be adduced regarding this Agreement or of any of the other dealings between the parties at trial than on this motion for summary judgment.

[78] We have the evidence of Zovko that West York has been paid in full which I accept. We have the evidence of Kunst that while West York has received payment of certain monies, further monies are owed for consulting and management services which West York provided to the Defendants. Those further monies amount to $1,450,000 CDN as claimed. The "further monies" claimed by West York are vague, unparticularized and not supported by the evidence. No forensic investigation at trial will reveal any more than what Kunst disclosed on his cross-examination regarding West York's claim together with particulars and supporting documentation.

[79] Ultimately, I do not accept the evidence of Kunst regarding promises to pay. I do not accept that there were any promises by Zovko.

[80] It is obvious from the record that Kunst and Zovko are sophisticated businessmen. It is not credible for Kunst to simply rely on alleged assurances by Zovko over so many years for such a large amount of money without any evidence to support West York's claim that at some point in time there would be a day of reckoning when Zovko would repay either West York or Kunst for investment losses sustained over the years on the various projects in which they were engaged. Rather, on all the evidence before this court, the more credible explanation in respect of the events over at least 15 years prior was the evidence of Zovko regarding the Christopher Court, Oakville Joint Venture, Esplanade and Importanne Galleria projects. I conclude that West York has been paid for the services that it rendered. The alleged promises to pay West York, Kunst or any related parties is not evidenced anywhere and is without foundation.

[81] While the Defendants have put their "best foot forward", I find that West York has not. West York has not set out, through admissible and credible evidence, the specific facts showing why there is a genuine issue regarding a trial in this case. Rather, there are bald allegations in respect of further business dealings unsupported by any plausible evidence. Further, there is a failure on the part of West York to adduce any convincing evidence of the alleged oral assertions on the part of Zovko to make good on any losses of investment suffered by West York on the various projects described in these Reasons. In weighing the evidence and the credibility of the parties, I prefer the evidence of Zovko which is cogent, plausible and supported by documentation. I do not accept the evidence of Kunst which is implausible and not supported by documentation regarding so many elements of West York's claim as discussed throughout these Reasons. There is no evidence to support that Kunst was going to be paid for his investment in the Syndicate or his goodwill as he testified on his cross-examination.

[82] I return to Rule 20.04 and ask this question: Can the full appreciation of the evidence and issues required to make dispositive findings be achieved by way of summary judgment motion in this case? The answer to that question is yes. I find that there are no genuine issues requiring a trial. I am not satisfied that the full appreciation test can only be achieved by way of a trial. On this motion record, dispositive findings are attainable. There are no genuine factual issues requiring a trial as West York is unable and/or has not produced any evidence to support its claim for monies owing as a result of alleged management services provided to the Defendants. West York has led no evidence to support its claim for punitive damages nor to support its claim of fraud. Rather, the Defendants have provided contracts, proof of invoicing and proof of payments for amounts owing to West York as a result of work performed in connection with their real estate projects. This Court concludes on the evidentiary record before it that the Defendants' motion for summary judgment is hereby granted and West York's action is dismissed.

EXPIRATION OF THE LIMITATION PERIOD

[83] The Defendants submit that West York's claim ought to be dismissed in any event as it is clearly statute barred. The determination of the appropriate limitation period does not present a genuine legal issue requiring trial.

[84] Section 4 of the Limitations Act, 2002 creates a basic limitation period of two years following the discovery of a claim. It reads as follows:

Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.[^11]

[85] As noted above, any and all contractual relationships between the parties ended after September 26, 2003, with the satisfaction of the plaintiff's final invoice. This invoice was paid in full and in accordance with the applicable agreement, payment of which the plaintiff acknowledges. The plaintiff has provided no evidence of any business ventures, agreements or contractual relationship between the parties since 2003. Thus, the court must assume the relationship between the parties ceased in 2003.

[86] I have found that any and all contractual relationships between the parties ended with the payments after the September 26, 2003 invoice which were concluded in 2004. This invoice was paid in full and in accordance with the applicable agreement acknowledged by West York. West York has not provided any evidence of business ventures, agreements or contractual relationships with the parties since 2003 or 2004. This Court concludes that business relationship between these parties ceased in 2003 upon final invoice or at the latest 2004 when West York was paid in full for the Importanne Galleria project.

[87] In order to determine if the claim is statute barred, it must be considered when the Plaintiff "discovered" the claim. Pursuant to section 5(2) of the Limitations Act:

5(1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew, (i) that the injury, loss or damage had occurred,

(2) A person with a claim shall be presumed to have known of the matters referred to in clause 1(a) on the day the act or omission on which the claim is based took place, unless the contrary is proven.[^12]

[88] Given that any contractual relationship between the parties ended in 2003, any monies West York felt were owing would be presumed to be owing to West York in or about 2003. West York has led no persuasive evidence to rebut this presumption. The parties most recent business dealings were complete in 2003 almost ten years ago. Further, the other projects for which West York claims to be owed monies were completed in the 1990's.

[89] Even if this Court were to accept the assertion of West York that monies were owed as a result of the Importanne Galleria project and applied the former limitation period of six years, West York must have commenced its proceeding within six years being September 28, 2009. However, West York's claim was not commenced until September 28, 2010.[^13]

Acknowledgement of Liquidated Debt

[90] West York claims that the alleged debt(s) owed by the Defendants are not statute barred as a result of the Defendants' promises to pay and the Defendants' acknowledgment of debt. Even if the Defendants made verbal reference to any alleged debt, which was specifically denied, any such reference was not an acknowledgment of a debt, was not in writing and was not signed by the Defendants as necessitated by the Limitations Act, 2002, S.O. 2002, c.24, Sch. B, and or its predecessor statue, the Limitations Act, R.S.O. 1990, c. L 15.[^14]

[91] Section 13 of the Limitations Act, 2002 confirms that acknowledgment of liability may trigger the beginning of a new limitation period:

13(1) If a person acknowledges liability in respect of a claim for payment of a liquidated sum, the recover of personal property, the enforcement of a charge on personal property or relief from enforcement of a charge on personal property, the act or omission on which the claim is based shall be deemed to have taken place on the day on which the acknowledgement was made.[^15]

[92] It is well established law that in considering whether an acknowledgment satisfies the requirements made under s.13 of the Limitations Act, the acknowledgement must, at a minimum, confirm and concede the amount that remains owing. Further, the acknowledgment must be in writing and signed by the person making it, or the person's agent.[^16]

[93] West York claims that Zovko acknowledged his debt in executing the Agreement of Settlement dated June 9, 1995 in favour of West York. Pursuant to the Agreement of Settlement the Defendants agreed to pay West York a million Deutschmarks which is approximately $500,000 CDN.

[94] If this Court accepts that the Agreement of Settlement satisfies the acknowledgement requirements of s.13 of the Limitations Act, the limitation period would restart from June 9, 1995.[^17]

[95] Under the new Limitations Act, 2002, the former limitation of six years was repealed, subject to transitional provisions. Even if this Court determines the Agreement of Settlement to be a valid acknowledgement of a debt, the limitation period would have expired in 2001. The transitional provisions of the Limitations Act, 2002, do not apply as these provisions only apply if the former limitation did not expire before the effective date of January 1, 2004.[^18]

[96] West York claims the Defendants made verbal promises to pay from 2003 to 2009 at various points in time. I have found that there were no such verbal promises to pay. However, these verbal assurances, even if assumed to be true, do not satisfy the requirements of a valid acknowledgment. An acknowledgment must be clear in order to raise the implication of a promise to pay. West York has provided no other documentary evidence to support its claim of promises to pay.[^19]

[97] This Court finds that even if West York had a viable claim, which is not so found, the applicable limitation periods have long since expired.

[98] There is no genuine legal issue requiring a trial. The applicable limitation periods have long since expired. On this evidentiary record, I find West York's action is statute barred.

CONCLUSION

[99] For these reasons, I find that there is no genuine issue requiring a trial. The Defendants' motion for summary judgment is hereby granted and West York's action is dismissed. The parties agree that the issue of costs shall be determined by way of written submissions. Within 14 days of these Reasons, counsel are to serve and file with the Trial Co-ordinator at Barrie a concise statement as to costs no longer than two pages, Costs Outline, Bill of Costs and copy of any supporting authorities.

DiTOMASO J.

Released: November 15, 2012

[^1]: Rule 20.04(2) and (2.1), Rules of Civil Procedure, R.R.O. 1990, Reg. 194

[^2]: Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 at paras. 40-44

[^3]: Combined Air Mechanical Services Inc. v. Flesch, supra at paras. 50-51

[^4]: Combined Air Mechanical Services Inc., supra at para. 52

[^5]: Combined Air Mechanical Services Inc., supra at para. 55

[^6]: Combined Air Mechanical Services Inc., supra at para. 56

[^7]: Rules of Civil Procedure, R.R.O. 1990, reg. 194, Rule 20.02(2)

[^8]: Key Designs Ltd. v. Zovko, 2002 CarswellOnt 2384 at paras. 32, 38 and 78.

[^9]: Key Designs Ltd. v. Zovko, 2004 CarswellOnt 520.

[^10]: Transcript of cross-examination of Adam Kunst page 54 – 60.

[^11]: Limitations Act, 2002, S.O. 2002, c.24, Sch. B, s.4.

[^12]: Limitations Act, 2002, S.O. 2002, c.24, Sch. B, s.5.

[^13]: Limitations Act, 2002, S.O. 2002, c.24, Sch. B.; Limitations Act, R.S.O. 1990, c. L 15; Moving Parties’ Supplementary Motion Record, Tab 1.

[^14]: Limitations Act, 2002, S.O. 2002, c.24, Sch. B.; Limitations Act, R.S.O. 1990, c. L 15.

[^15]: Limitations Act, 2002, S.O.. 2002, c.24, Sch. B

[^16]: Middleton v. Aboutown Enterprises Inc., [2008] O.J. No. 3608, para. 11; Montcap Financial Corp. v. Schyven, 2011 CarswellOnt 5617 at paras 18 and 27.

[^17]: Montcap Financial Corp. v. Schyven 2011CarswellOnt 5617 at para. 17.

[^18]: Limitations Act, 2002, S.O. 2002, c.24, Sch. B, s. 24(2).

[^19]: Middleton v. Aboutown Enterprises Inc.,[2008] O.J. No. 3608, para. 11; Clyde v. Clyde, 1645 CarswellOnt 240, at para. 14.

West York International Inc. v. Importanne Marketing Inc., 2012 ONSC 6476

Case Summary