SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 11-50335
DATE: 20120201
RE: Joyce Laidler, Plaintiff
AND:
Steve Laidler, Dwight Laidler, Roger Legate and Stephen Legate, Defendants
BEFORE: Hackland R.S.J.
COUNSEL:
Richard Shanbaum for the Plaintiff
Christopher A. Moore for the Defendants Steve Laidler and Dwight Laidler
HEARD: January 19, 2012 (Ottawa)
ENDORSEMENT
[ 1 ] The defendants, Steve Laidler and Dwight Laidler, seek leave to appeal from the interlocutory decision of Scott J. dated November 28, 2011 by which he dismissed their motion brought under Rule 21.01(3) of the Rules of Civil Procedure to have the action dismissed as being vexatious and an abuse of process.
[ 2 ] The principal issue was whether the plaintiff’s action was statute barred in that relief was claimed for the breach of an arrangement or agreement entered into and allegedly breached some 4 ½ years before the action was commenced, so as to fall well outside the 2 year limitation period provided for in the Limitations Act , S.O. 2002, c.24 .
[ 3 ] In the statement of claim (to which no statement of defence has yet been filed) the plaintiff alleges that she and her late husband provided a down payment to these defendants in the amount of $52,000 for the purchase of a condominium unit for the use of the plaintiff and her husband for the balance of their lives. In July 2004 the plaintiff and her husband moved into the condominium. He died in November 2004 and she continued to reside there until June 2006 when she vacated following a dispute over the rent. These defendants are two of the sons of the plaintiff’s late husband. The condominium was and remains registered in their names and they take the position that the $52,000 was an inter vivos gift from their father.
[ 4 ] The substantive issue therefore is whether the $52,000 payment was a gift to the defendants Steve Laidler and Dwight Laidler or was a payment in trust from the plaintiff and her late husband for the purpose of acquiring accommodation that the plaintiff and her late husband, or the survivor of them could occupy for the balance of their lives, as the plaintiff alleges.
[ 5 ] Significantly, when the dispute about the condominium arose, the plaintiff retained a lawyer who wrote a letter dated March 28, 2006 to counsel for these defendants fully outlining the plaintiff’s claims and proposing that the matter be resolved on the basis of a return of the down payment to the plaintiff. This was rejected the following day in reply correspondence from defendants’ counsel. These defendants fairly point out that based on any reasonable concept of discoverability the applicable 2 year limitation period for this dispute would begin to run at the point when this correspondence was exchanged. This action however was not commenced until January 7, 2011.
[ 6 ] The plaintiff makes the following claim in her statement of claim:
a) A declaration that the Defendants owe the Plaintiff support in order for her to maintain a proper and decent standard of living in the amount of $3,000.00 per month to be paid jointly and severally by the Defendants as a result of the contract (expressed and/or implied) among the parties herein,
d) In the alternative to the relief sought in paragraphs a), b) and c) above, a declaration that the Defendants have breached the expressed and/or implied agreement and obligation to support the Plaintiff on a continuing basis and that an Order be given for compensatory damages requiring the Defendants to pay to the Plaintiff the amount of $52,000.00 given to the Laidler defendants plus any and all gains received as a result of this payment.
[ 7 ] I note that there is no allegation that these defendants agreed to pay the plaintiff $3,000 a month: rather this is the claimed loss to the plaintiff from being deprived of the use of the condominium unit or the loss resulting from the refusal to re-pay the $52,000.
[ 8 ] The motion judge rejected the submission of these defendants that these claims were statute barred. He stated:
[18] The plaintiff submits that paragraph 1(a) of the relief sought in the Statement of Claim is a claim for ongoing or continuing financial obligation by the defendants to provide liveable accommodation for the plaintiff for the rest of her life in return for her advancing the $52,000 which facilitated the purchase of the condo by the Laidler sons.
[19] The plaintiff acknowledges that this specific head of relief is subject to a 2 year limitation period, however, as the contractual obligation is continuous and ongoing, the limitation period is refreshed every month.
[20] As it relates to the determination on this specific matter, there appears to be a genuine issue which should be left to the trial judge who is able to better access issues of credibility.
[ 9 ] I am respectfully of the view that there is good reason to doubt the correctness of this conclusion. The repayment of the $52,000 advance plus interest and the reasons in support of that claim were clearly articulated by the plaintiff’s lawyer in his March 28, 2006 correspondence. The claim for $3,000 per month is the plaintiff’s claim for the alleged loss resulting from the breach of the alleged agreement that occurred in 2006. As such it is likely to be viewed as statute barred. The alleged 2004 arrangement or agreement that is in dispute is in no way analogous to contracts for periodic payments such as contracts for disability insurance payments or installment payments pursuant to a loan agreement. Unlike the installment type of contract where there exists an on-going obligation, here the contract came to an end when these defendants allegedly breached it and the plaintiff moved out of the premises in June of 2006.
[ 10 ] The motion judge also stated that paragraph 1 (g) (sic–should be (d)) of the statement of claim could be viewed as “an equitable claim such as “constructive trust”, the basis for which could not have been founded without hearing all of the evidence”. While constructive trust might be a remedy appropriate to the plaintiff’s claim, it would need to be based on a cause of action arising out of the 2004 arrangement between the parties or the 2006 alleged breaches and as such would still be proscribed by the application of the 2 year limitation period.
[ 11 ] The plaintiff’s other claim against these defendants is for parental support pursuant to s. 32 of the Family Law Act which states:
- Every child who is not a minor has an obligation to provide support, in accordance with need, for his or her parent who has cared for or provided support for the child, to the extent that the child is capable of doing so. R.S.O. 1990, c. F.3, s. 32 .
[ 12 ] I agree with the position of these defendants that the plaintiff never cared for or supported them as children, even on the plaintiff’s own evidence. There has never been a settled intention on the plaintiff’s part to support these adult defendants (whom she never knew as children). Section 32 of the Act addresses mutual support obligations between parents and children based upon direct inter-dependency. These defendants were financially independent adults as of the date of the plaintiff’s marriage to their late father. Accordingly, I am of the opinion that there is good reason to doubt the correctness of the motion judge’s finding that there is “an opportunity at trial for the plaintiff to succeed on this relief”.
[ 13 ] The moving party also seeks leave to appeal the motion judge’s award of $6,120.00 costs (plus disbursements and HST) to the plaintiff. This award is a reasonably conventional sum for a motion of some complexity and I would not view this as an issue of sufficient importance to justify granting leave to appeal.
[ 14 ] Rule 62.02 (4)(b) of the Rules of Civil Procedure permit the court to grant leave to appeal from an interlocutory order of a motion judge where:
(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted. R.R.O. 1990, Reg. 194, r.62.02 (4) .
[ 15 ] I am respectfully of the opinion that there is good reason to doubt the correctness of the motion judge’s order with respect to the application of the limitation period to this action and in respect to the possibility of success of the plaintiff’s claim based on s. 32 of the Family Law Act . Both of these statutes are of jurisprudential importance and the motion judge’s ruling pertains to issues of potential significance. I therefore grant leave to appeal on both of these points.
[ 16 ] Costs of this motion for leave to appeal are reserved to the court hearing the appeal.
Mr. Justice Charles T. Hackland
Released: February 1, 2012
COURT FILE NO.: 11-50335
DATE: 20120201
BETWEEN: Joyce Laidler AND Steve Laidler, Dwight Laidler, Roger Legate and Stephen Legate ENDORSEMENT
HACKLAND R.S.J.
Released: February 1, 2012