Endorsement
COURT FILE NO.: 09-45907
DATE: 20140225
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MILES WOLFF, Plaintiff
- and –
** MOMENTOUS.CA CORPORATION and ZIP.CA INC., Defendants**
AND BETWEEN:
MOMENTOUS.CA CORPORATION and ZIP.CA INC., Defendants/Plaintiffs by Counterclaim
- and –
CITY OF OTTAWA, OTTAWA PRO BASEBALL INC., and BRUCE MURDOCK, Defendants to the Counterclaim
BEFORE: Hackland R.S.J.
COUNSEL: Eric M. Appotive and Allison A. Russell, for Miles Wolff and Ottawa Pro Baseball Inc.
Benoit M. Duchesne, for the City of Ottawa
Rohit Parekh, for Zip.ca Inc.
ENDORSEMENT
[1] This is a motion for summary judgment brought by the plaintiff (and defendant by counterclaim) Miles Wolff and by the City of Ottawa (defendant by counterclaim), seeking the dismissal of the counterclaim against them, which was issued by the defendant Zip.ca Inc. (Zip). They argue that the counterclaim is statute barred pursuant to the Limitations Act, 2002, S.O. 2002, chap. 24, Schedule B, as amended.
[2] The plaintiff Wolff also seeks summary judgment against Zip for the payment in the sum of CDN $201,000.00 pursuant to an indemnity provided by Zip in a Letter Agreement dated May 6, 2008.
[3] This litigation arises in connection with debts incurred by a professional baseball team, the Ottawa Rapidz, which operated in Ottawa in the 2009 baseball season. This team played in the Canadian-American Baseball League which is headquartered in North Carolina.
[4] On April 25, 2012, almost three years after Wolff commenced the within action, Zip issued its Statement of Defence and Counterclaim. Zip asserted by way of counterclaim allegations that are almost identical to the allegations raised in the Statement of Claim in Court Action No. 09-43848 which is an earlier action commenced by Zip on January 26, 2009.
[5] The parties are in agreement that the allegations in the counterclaim in the present action are indeed virtually identical to allegations put forward by Zip in the above-noted prior action begun on January 26, 2009. These are claims for misrepresentation, breach of contract and intentional interference with economical relations. There are therefore no discoverability issues with reference to these causes of action asserted in the counterclaim. The allegations were known and indeed were put forward by Zip in January of 2009.
[6] Zip’s 2009 action was ultimately dismissed on a jurisdictional basis. The Supreme Court of Canada held that Zip was prevented from asserting these claims in Ontario based on a forum selection clause requiring any disputes involving the Canadian American Association of Professional Baseball, Ltd. be heard in North Carolina, as the claims being raised by Zip are inextricably linked to Zip’s dealing with the League. The reasons for judgment of the Supreme Court of Canada are dated March 15, 2012: see Momentous.ca Corp. v. Canadian American Association of Professional Baseball, Ltd., 2012 SCC 9, [2012] 1 S.C.R. 359.
[7] I note that the City of Ottawa was not a party to the present action until the counterclaim was issued against it. The City and the plaintiff Wolff were parties to the earlier action, ultimately ending with the Supreme Court’s decision. The present claim was commenced (August 10, 2009) by the plaintiff Wolff during the currency of the previous action. Zip’s counterclaim in the present action was issued (April 25, 2012), some 44 days after the judgment of the Supreme Court of Canada affirming the dismissal of the prior action, on jurisdictional grounds.
[8] I would observe that if the two year limitation period in s. 4 of the Limitations Act is applicable to Zip’s counterclaim in the present action, then it is clearly statute barred. Zip’s statement of claim in the prior action, raising identical issues, was served in August of 2009. Zip’s counterclaim in the present action was issued in April of 2012, more than two years and eight months later. Section 4 of the Limitations Act provides:
Basic limitation period
- 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. 2002, c. 24, Sched. B, s. 4.
[9] Zip argues that s. 4 of the Limitations Act is inapplicable to the circumstances of this case having regard to the recognized purposes or goals of limitation periods which are to promote “certainty, evidentiary and diligence”, as discussed by the Supreme Court of Canada in M.(K.) v. M.(H.) 1992 31 (SCC), [1992] 3 S.C.R. 6 at 30.
[10] Zip submits that on the unusual facts of this case there are no claims being advanced from the distant past, nor is there stale evidence or a lack of diligence on the part of the claimant. Zip relies on the fact that during the entire currency of Zip’s previous action, the plaintiff Wolff and the City of Ottawa were on notice of and were responding to the very claims now asserted in the counterclaim in this action. The issues have never been adjudicated on the merits.
[11] I do not accept this submission. I am of the opinion that under the current Limitations Act, 2002, the court has no residual discretion to decline to apply the statutory limitations set out in the Limitations Act due to perceived special circumstances or otherwise. The Limitations Act is exhaustive in listing the special circumstances to which the two year limitation does not apply, for example, s. 6 (Minors), s. 7(1) (Incapable Persons). Zip relies on several cases dealing with amendments to pleadings which are not relevant to the limitations issue presented in this case. Further, from a diligence point of view, it was open to Zip to issue the counterclaim within the two year limitation period and apparently failed to do so through inadvertence.
[12] I am bound by the decision of the Ontario Court of Appeal in Joseph v. Paramount Canada’s Wonderland, 2008 ONCA 469) holding that under the Limitations Act, 2002, an extension or suspension of the limitation period must be provided for by or under a statute. The earlier common law special circumstances doctrine no longer applies.
[13] Summary judgment is granted to the moving parties striking Zip’s counterclaim in this action on the basis that it is statute barred.
[14] As to the motion for summary judgment brought by the plaintiff Wolff based on Zip’s indemnity obligations in the Letter Agreement of August 6, 2008, Zip submits that it has a defence in the form of an equitable set-off in relation to certain parking fees received by Mr. Wolff, which arguably would serve to reduce the amount due under the indemnity. Zip also wishes to be permitted to file an affidavit in support of its claim for set-off and to cross-examine Mr. Wolff on his affidavit, relying on procedural fairness grounds.
[15] Zip was required by order of the Master to serve a responding affidavit, if it chose to do so, by May 15, 2013 and to the date of argument of this motion, has still not done so. Zip’s requests to cross-examine Wolff’s affidavit were not pursued diligently.
[16] In the circumstances and taking Zip at its word that it has a legitimate set-off to put forward and wishes to do so diligently, I exercise my discretion to require Zip to pay the sum of CDN $201,000.00 into court pending the resolution of this litigation. This payment into court is to be made within 60 days of the release of this Endorsement, failing which summary judgment is to issue against Zip in the sum of CDN $201,000.00.
[17] As noted, the moving parties, the City of Ottawa and the plaintiff Miles Wolff/Ottawa Pro Baseball Inc. are granted summary judgment dismissing Zip.ca Inc.’s counterclaim, with costs.
[18] The moving parties may provide brief costs submissions to the court in writing within 14 days, and Zip may respond within 14 days thereafter.
Mr. Justice Charles T. Hackland
Released: February 25, 2014
COURT FILE NO.: 09-45907
DATE: 20140225
SUPERIOR COURT OF JUSTICE - ONTARIO
Miles Wolff
** - and –**
Momentous.ca Corporation and Zip.Ca Inc.
AND BETWEEN:
MOMENTOUS.CA CORPORATION and ZIP.CA INC.,
- and –
CITY OF OTTAWA, OTTAWA PRO BASEBALL INC., and BRUCE MURDOCK,
ENDORSEMENT
HACKLAND R.S.J.
Released: February 25, 2014