COURT FILE AND PARTIES
COURT FILE NO.: 11-51390
DATE: 2013-11-13
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Ugarrit Inc. and Gamal Jebahi, Plaintiffs
- and –
Prakash Pooran, MBA, LL.B., Defendant
BEFORE: Hackland R.S.J.
ARGUED: In Ottawa on October 24, 2013
COUNSEL:
Miriam Vale Peters and Kathryn Bortolussi, for the plaintiffs
Allison Klymyshyn for the defendant
Ashlee Barber for the non-party Jeffrey Barnabe
Ashley Deathe for the non-party Michel Sicotte
ENDORSEMENT
[1] The plaintiff Gamal Jebahi (Mr. Jebahi) brings this motion to amend his statement of claim (i.e. his fresh as amended statement of claim), to add two of his former solicitors as party defendants in this professional negligence action. The action is currently based on the alleged negligence of the defendant, Prakash Pooran, another of the plaintiff’s former solicitors, for his failure to commence an action against the plaintiff’s former solicitor, Mr. Sicotte, for negligently allowing the two year limitation period to expire on a commercial fire loss claim arising from a fire which occurred on December 31, 2004.
[2] The plaintiff also seeks to add solicitor Jeffrey Barnabe as a party defendant on the basis that he failed to commence an action for the commercial fire loss, thus allowing the limitation period to expire during his retainer. The claim sought to be added against Mr. Sicotte is also that he failed to commence a commercial fire loss claim within the limitation period. Mr. Sicotte did commence the fire loss claim on June 21, 2007, claiming $150,000 in damages, but for the purposes of this motion, it is accepted that the limitation period had expired by that point. The reason for the uncertainty as to when the two year limitation period expired on the fire loss claim was that the plaintiff Mr. Jebahi was seriously injured in the fire and underwent a lengthy hospitalization and suffered serious cognitive injuries, which arguably presented a discoverability issue as to when the limitation period would commence. The solicitors Mr. Barnabe and Mr. Sicotte oppose the order joining them in this action on several grounds. In Mr. Barnabe’s case it is argued that there is no evidence that he was ever retained to pursue the fire loss claim. Both solicitors argue that any action against them is statute barred because the two year limitation period governing any claim against them had expired by the time the present motion was brought.
[3] I note the following dates of significance:
The fire – December 31, 2004
The period of Mr. Barnabe’s retainer – July 2005 – January 2007
The period of Mr. Sicotte’s retainier – March 29, 2007 – April 2008
The period of Mr. Pooran’s retainer – April 28, 2008 – April 1, 2011
Opinion letter of solicitor Costanzo dated November 2, 2011
The plaintiff (self-represented) commences present action against solicitor Pooran – May 18, 2011
The present motion to add solicitors Barnabe and Sicotte, issued May 10, 2012 and served on solicitor Sicotte on November 16, 2012.
[4] In my view, it is clear from the evidence in this record that solicitor Barnabe was retained for the purpose of pursuing the plaintiff Mr. Jebahi’s personal injury and income loss claims through WSIB proceedings. He was not retained in relation to the commercial fire loss claim as can be seen from letters dated January 29, 2006 and September 13, 2006 to the property insurer, authored by the plaintiff himself, wherein he is clearly handling this matter on his own. Mr. Barnabe’s sworn evidence is that he was not retained for the fire loss claim and his file supports that contention. Mr. Barnabe was in fact originally retained by the plaintiff’s brother on the plaintiff’s behalf and no evidence has been presented from the brother as to the scope of Mr. Barnabe’s retainer, which I think supports an inference in favour of Mr. Barnabe’s recollection of events. Furthermore, the plaintiff later sought an opinion from solicitor Costanzo as to the possible liability of his former lawyers and the Costanzo opinion letter reflects that he was instructed that Mr. Barnabe’s retainer was restricted to the WSIB claim. There is simply no air of reality to the contention that Mr. Barnabe’s retainer included responsibility for the fire loss claim and accordingly the amendment sought to join him as a defendant in this action is denied.
[5] The next question is whether the two year limitation period has expired against Mr. Sicotte. Mr. Sicotte was retained by the plaintiff on March 29, 2007 to pursue the commercial fire loss claim. This was likely after the limitation period had expired but there is a triable issue as to whether the discoverability trigger for the limitation period was delayed by the plaintiff’s medical condition. As noted Mr. Sicotte issued the fire loss claim on June 21, 2007, claiming $150,000 in losses. The insurers of the premises denied liability on the basis of the limitation period. The plaintiff subsequently terminated Mr. Sicotte’s retainer and engaged solicitor Pooran, the current defendant in this proceeding, on April 28, 2008.
[6] The issue on the present motion is whether the two year limitation period for commencing an action against solicitor Sicotte has expired. If so, leave to join him as a defendant in this action must be denied. The basis for the claim against Mr. Sicotte is the contention that he allowed the limitation period on the fire loss claim to expire during the period of his retainer. The limitation period for such a claim commences on the date that the basis for such a claim was discoverable to the plaintiff, as that concept is set out in s. 5(b) of the Limitations Act of Ontario.
5(1) Discovery
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,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person against whom the claim is made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).
5(2) Presumption
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 proved.
[7] I agree with the position of counsel for Mr. Sicotte that the limitation period for commencing an action against Mr. Sicotte would begin to run at the point where the plaintiff or his solicitor Mr. Pooran became aware that there was a missed limitation period, the expiry of which may have occurred during Mr. Sicotte’s retainer. The facts clearly establish that Mr. Pooran was aware of the limitations problem. Indeed it was a central focus of his handling of the matter. If Mr. Pooran did not bring the issue to the plaintiff’s attention, then the plaintiff’s complaint would be against Mr. Pooran, not against Mr. Sicotte as to that issue.
[8] In particular Mr. Pooran was aware that the defendants in the fire loss proceedings would be asserting that the limitation period had expired. If there was a claim against Mr. Sicotte for missing the limitation period for the fire loss claim, or indeed to start any action, Mr. Pooran ought to have advised the plaintiff of the potential claim. Indeed it is Mr. Pooran’s position that he did so advise the plaintiff. The evidence supporting Mr. Pooran’s knowledge (and therefore his client the plaintiff’s knowledge), that the limitation period for the fire loss claim had passed, or was at issue in the fire loss action, was as follows:
• Mr. Pooran had in his possession a copy of the April 21, 2008 letter from Mr. Sicotte to Mr. Jebahi explaining that York Fire was asserting the limitation period had expired. Mr. Pooran confirmed with Mr. Sicotte that he had reviewed that letter with Mr. Jebahi, and that Mr. Jebahi was instructing Mr. Pooran to take over carriage of the fire loss claim.
• The insurers in the fire loss claim did assert the limitation period had expired in their statement of defence and again in the third party claim they initiated against Mr. Jebahi on August 5, 2008, (which was after Mr. Pooran took carriage of the action).
• By the mediation date of March 18, 2009 in the fire loss action, the defendants had articulated what evidence they considered to support their position the limitation period had expired.
• As of July 31, 2009, Mr. Pooran had provided Mr. Jebahi with his opinion that the related action had been brought outside the two year limitation period and further, that if the defendants brought a motion for summary judgment on the basis of the limitation period, they would be successful.
[9] In October 2010 the plaintiff Mr. Jebahi retained solicitor Costanzo to review all aspects of his claim on the commercial fire loss as well as to comment on the actions of all of his previous solicitors. Mr. Costanzo clearly identified to the plaintiff that he had a potential cause of action against both Mr. Sicotte and Mr. Pooran for professional negligence. He suggested in his letter that the limitation period for pursuing such a claim would be two years from the date of his (Mr. Costanzo’s) opinion letter, which was March 9, 2011.
[10] The plaintiff subsequently terminated his retainer with Mr. Pooran and commenced an action (i.e. the present action) against Mr. Pooran on May 18, 2011. The plaintiff was self-represented when he commenced this action. Notwithstanding Mr. Costanzo’s advice, the plaintiff chose not to name solicitors Barnabe or Sicotte as defendants.
[11] The plaintiff argues that the limitation period would not start to run until March 9, 2011, being the date of Mr. Costanzo’s opinion letter. The present motion to add Mr. Sicotte as a party defendant was served on Mr. Sicotte on November 16, 2012 i.e. within the two year limitation period if such period can be said to have commenced on March 9, 2011.
[12] The question before the court is whether the two year limit for commencing an action against Mr. Sicotte began to run when the plaintiff’s former solicitor, Mr. Pooran, became aware that there was a serious limitation issue on the commercial fire loss claim (in which the claim would clearly be statute barred), or on March 9, 2011 when Mr. Costanzo expressly told the plaintiff in an opinion letter that he had a potential cause of action against Mr. Sicotte, coupled with the advice that the limitation period would now commence as of the date of the letter. I recognize that if this issue is properly characterized as a triable issue, the amendment should be allowed and the limitation issue left to the trial judge.
[13] Mr. Jebahi’s counsel relies on the recent decision of the Ontario Court of Appeal in Ferrara v. Lorenzetti, Wolfe Barristers and Solicitors, 2012 ONCA 851 (C.A.). In Ferrara both the majority and dissenting judges relied on the case of Kenderry-Esprit (Receiver of) v. Burgess, MacDonald, Martin & Younger which states that:
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.
[14] Ferrara, was an action by the plaintiff against his former solicitor who had represented him in a commercial transaction in which a dispute arose as to whether the opposite party was owed further money as a result of an alleged error in the statement of adjustments on closing. The court addressed the issue of whether the limitation began to run against the former solicitor when the dispute arose about the possible error in the statement of adjustments or at the later point at which a court confirmed the alleged error in the statement of adjustments. The court held that the limitation period only began to run when the decision of the court was released finding the plaintiff liable for the deficiency.
[15] In my view, Ferrara turned on its unique facts. As the majority judgment pointed out the owner was an unsophisticated litigant who relied heavily on his lawyer of some 20 years who did not inform his client of the error, insisting that there was no error. Further none of the plaintiff’s three counsel in the deficiency litigation recommended the lawyer be added as a party. On the facts it was held that there was no realistic way for the plaintiff to have added the lawyer as a party during the deficiency litigation. In contrast, in the present case, there is no suggestion that Mr. Pooran or Mr. Sicotte misled Mr. Jebahi and the limitation issue was a matter of discussion by both of these solicitors with Mr. Jebahi. Consequently, I conclude that the limitation against Mr. Sicotte began to run at or about the time Mr. Pooran was retained by Mr. Jebahi to pursue the fire loss claim because the missed limitation problem was a focus of discussion at that point.
[16] In summary, I am of the view that from the date of Mr. Pooran’s initial retainer, the plaintiff and Mr. Pooran were well aware that the plaintiff faced a limitations problem on his fire loss claim. At no time was it suggested to him that there was no problem concerning limitations. On the contrary, Mr. Jebahi was fully aware of the circumstances and of the position of the insurance company. In my view, for the limitation period to begin to run it was not necessary that Mr. Pooran discuss with Mr. Jebahi the advisability of commencing a claim against Mr. Sicotte, rather it is sufficient that the plaintiff was aware of all of the facts underlying the allegations which he currently seeks to put forward through this amendment.
[17] As I find that the two year limitation period against solicitor Sicotte had already expired as of November 2012 when he was served with this notice of motion, the motion to add him as a party defendant to this action is dismissed.
[18] Counsel have agreed that references to a personal injury claim in the current statement of claim would be deleted. If there is disagreement as to what amendments to the current pleading would be required to effect these deletions, I may be spoken to.
[19] If either of the responding non-parties wishes to claim costs, they should provide a concise written submission within 14 days of the release of this endorsement and the plaintiffs may respond within 14 days thereafter.
Mr. Justice Charles T. Hackland
Released: November 13, 2013
COURT FILE NO.: 11-51390
DATE: 20131113
SUPERIOR COURT OF JUSTICE - ONTARIO
UGARRIT INC. and GAMAL JEBAHI
- and –
PRAKASH POORAN, MBA, LL.B.
ENDORSEMENT
HACKLAND R.S.J.
Released: November 13, 2013