ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-11-104211-00
DATE: 20130116
BETWEEN:
Solmaz Vazifehkhah Ghaffari
Plaintiff
– and –
Vahid Mehdizadeh Asiyaban, Elham Moaveni, also known as Ellie Moaveni and Alan J. Luftspring
Defendants
Bita Maftoun, for the Plaintiff
Christopher J. Thiesenhausen, for the Defendant, Vahid Asiyaban
Michael R. Kestenberg and David S. Lipkus, for the Defendants, Elham Moaveni and Alan Luftspring
HEARD: November 26, 2012
REASONS FOR DECISION
EDWARDS j.:
[1] The defendants Elham Moaveni (“Moaveni”) and Alan Luftspring (“Luftspring”) move for summary judgment pursuant to Rule 20 of the Rules of Civil Procedure (the “Rules”), dismissing the claim as against them as disclosing no genuine issue requiring a trial. These defendants argue that the action as against them is statute barred in accordance with the Limitations Act, 2002 S.O. 2002 Ch. 24.
The Facts
[2] Both Moaveni and Luftspring are barristers and solicitors. Luftspring, since his retainer with the plaintiff and co-defendant, Vahid Mehdizadeh Asiyaban (“Vahid”), has been disbarred for reasons unrelated to the transactions at issue in this lawsuit.
[3] Luftspring was retained by Solmaz Vazifehkhah Ghaffari (“Solmaz”) and Vahid in or about September 2005 with respect to a real estate transaction in which Solmaz and Vahid as joint tenants purchased a property, municipally known as 69 Highland Park Boulevard, Markham, Ontario (the “property”). The defendants assert that Solmaz had no financial equity or interest in the property and contributed no money to the property at any time. This assertion is disputed by Solmaz.
[4] Before closing, Luftspring met with Vahid and Solmaz and explained to her the consequences of going on title and the potential exposure to liability. Luftspring recommended that Solmaz obtain independent legal advice, which she refused to do.
[5] When Vahid wanted to refinance the property, prior to the maturity of the mortgage used to purchase the property, the involvement and signature of Solmaz was required because Solmaz had no financial interest in the property. Solmaz did not want to be involved in the process and did not want to be required to sign any applications for refinancing. As such, on or about February 2006, Vahid and Solmaz requested Luftspring to prepare documents including a trust agreement and power of attorney, which would enable Vahid to deal with the property without the involvement of Solmaz. Luftspring prepared these documents.
[6] The documents prepared by Luftspring referred to in paragraph [5] above were reviewed by Luftspring on February 21, 2006 with Solmaz, her brother, Vahid, and Vahid’s then girlfriend and now wife. The documents were explained to Solmaz and again a recommendation was made that she obtain independent legal advice which she refused to do. The documents were executed by Solmaz.
[7] On or about April 9, 2009, Luftspring received a letter from Gary Shapiro, who is a barrister and solicitor, and advised Luftspring that he had been retained to act on behalf of Solmaz and provided notice that she was revoking the power of attorney and disputing the validity of the trust agreement. Shapiro’s letter took the position that the trust agreement was not valid.
[8] As a result of the correspondence from Mr. Shapiro, Vahid then retained the defendant Moaveni to prepare an application record seeking a declaration of whether the trust agreement and power of attorney were valid.
[9] On or about November 5, 2009, Howden J. ordered that the trust agreement and power of attorney were valid.
[10] Prior to the hearing of this summary judgment motion, I dealt with a motion brought by Solmaz which sought to attack the validity of the order made by Howden J. It was suggested by Solmaz that she had never been served with the motion materials that were placed before Howden J. on November 5, 2009. Essentially, the attack made on Howden J.’s order was an attack based on fraud. I directed a trial of an issue with respect to whether or not the motion materials had in fact been served, as was represented to Howden J. at the hearing of the motion on November 5, 2009.
[11] After hearing evidence from Moaveni and the plaintiff and other witnesses, I gave brief oral reasons that denied the plaintiff’s motion and, as such, the order of Howden J. still stands.
[12] The present litigation was commenced by the plaintiff on May 16, 2011.
The Issue
[13] If this court determines that the limitation period commenced on April 9, 2009 when Mr. Shapiro, having been retained by the plaintiff, wrote to the defendants asserting his position with respect to the power of attorney and the validity of the trust agreement and the plaintiff’s overall position as a valid owner of the property, then the defendants assert that the limitation period had expired by the time the statement of claim was issued on May 16, 2011.
[14] In response, the plaintiff argues that the limitation period has not begun to run as she did not have the mental capacity to appreciate that she had a potential claim as against the defendants.
[15] In support of the argument based on lack of mental capacity, Ms. Maftoun, who is a paralegal assisting the plaintiff, pointed to the affidavit filed in opposition to the defendants’ motion, sworn by Roland Paskar. Mr. Paskar is a friend of the plaintiff and asserts, based on information and belief, that the plaintiff is “extremely fragile mentally and emotionally” and as such Mr. Paskar ordered the psychiatric records from the plaintiff’s treating psychiatrist, Dr. Abbas Azadian.
[16] Mr. Paskar has reviewed these records and asserts the following in his affidavit:
It is clear that Solmaz suffered from a mental illness of a persistent and continuing nature through 2008/2009 and any determination as to whether she is “reasonably ought to have known” she allegedly had a cause of action should take into account her mental state at that time.
[17] The clinical notes and records of Dr. Azadian were filed as an exhibit to the affidavit of Mr. Paskar. These records cover a time period commencing December 12, 2008 through June 6, 2012. Contained within the hand-written clinical notes and records is a typed-written psychiatric evaluation, which appears to have been prepared by Dr. Azadian in connection with a dog bite injury and the emotional affect of the dog bite injury, which occurred on May 13, 2008. The diagnosis of Dr. Azadian was “specific phobia (dog phobia)/post-traumatic stress disorder”. The report goes on to conclude that the plaintiff has developed physical and emotional problems and that she would:
…suffer from a substantial inability to carry on her normal life. She is anxious and worried about getting into other traumatic incidents and she is afraid of going out alone. She feels that she is dependent on others for many of her activities. Given her physical problems and in particular her emotional and memory problem, she will not be able to return to her previous work and will not be able to work.
[18] The clinical notes and records and the consultation note of Dr. Azadian in no way comply with the requirement on a summary judgment motion to place before the court expert evidence in a form that conforms with the Rules and the Evidence Act. At the very least, these records should have been put into an affidavit from the psychiatrist that could then have been cross-examined upon. Taken at its very highest however, these clinical notes and records, as well as the consultation note, do not in any way address whether or not the plaintiff was mentally incapacitated in such a manner as to allow this court to conclude that the limitation period had not begun to run as of the time when the plaintiff met with Mr. Shapiro and Mr. Shapiro wrote his letter of April 9, 2009.
[19] The only affidavit evidence that was placed before this court on behalf of the plaintiff was the affidavit of Mr. Paskar, who was noted to be a friend of the plaintiff. The plaintiff herself, for reasons best known to her, and perhaps Ms. Maftoun, chose not to file an affidavit of herself that could have addressed the issues raised on this motion. The plaintiff has not put her best foot forward in putting evidence before this court that would satisfy this court that she did not have the appropriate mental capacity as of April 2009 to appreciate that she had a potential claim as against the defendants.
The Law
[20] The test for summary judgment has recently been pronounced upon by the Court of Appeal in the well-known case of Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764. Judges now in a motion for summary judgment are to ask themselves the question as to whether the full appreciation of the evidence and issues that is required to make dispositive findings can be achieved by way of summary judgment, or whether this full appreciation can only be achieved by way of a trial.
[21] The plaintiff has failed to put any evidence in which this court could have confidence that she lacked mental capacity as of April 2009 to appreciate the potential for a claim as against the defendants. The limitation period began to run when the plaintiff knew, or ought to have known, of a potential claim. There can be no doubt that when the plaintiff met with Mr. Shapiro in April 2009, she would have had an appreciation of the potential for a claim against the defendants. The limitation period absent a lack of mental capacity on the part of the plaintiff began to run when she met with a solicitor on or about April 9, 2009. The statement of claim, not having been issued until May 16, 2011, the limitation period as against these defendants has expired and the plaintiff’s claim expired with it. The defendants’ motion is granted. The claims as against Luftspring and Moaveni are dismissed with costs. If the parties cannot agree upon costs, written submissions limited to three pages in length shall be submitted to the trial co-ordinator by February 15th. If written submissions are not received by February 15th, this court will assume that the parties have agreed on costs and no further involvement of this court is required.
Justice M.L. Edwards
Released: January 16, 2013