ONTARIO
SUPERIOR COURT OF JUSTICE
GUELPH COURT FILE NO.: 802/09
DATE: 20140107
BETWEEN:
GEORGE GALINEAS, FEVRONIA GALINEAS, KATHY GALINEAS, KATHY AGELAKOS AND CRISTOS AGELAKOS
Plaintiffs
– and –
RBC DOMINION SECURITIES INC., ROYAL BANK OF CANADA, AND KOSTA DARIOTIS
Defendants
Counsel
N. Gross, for the Plaintiffs, Kathy Agelakos and Cristos Agelakos
M. Kestenberg, for the Defendant, RBC Dominion Securities Inc. and Royal Bank of Canada
J. G. Richards, for the Defendant, Kosta Dariotis
– and –
JAMES HOWARTH BENNETT
G. Mew and D. Zacks, for the Intervener, James Howarth Bennett
Intervener
HEARD IN GUELPH: December 16, 2013
D.L. EDWARDS J.
[1] The defendant, Kosta Dariotis and the defendants RBC Dominion Securities Inc., and Royal Bank of Canada, each bring a motion for an order for summary judgment dismissing the claim of Kathy Agelakos and Cristos Agelakos (“Agelakos”) on the basis that the action was commenced outside the basic two-year limitation period.
[2] The claims of the following plaintiffs: George Galineas, Fevronia Galineas and Kathy Galineas, were dismissed on consent on August 6, 2013.
[3] Agelakos take no position on the motion.
[4] James Howarth Bennett, as intervener, argues that there is a triable issue as to whether or not the Statement of Claim was issued outside of the two-year limitation period.
[5] For the reasons stated below, I find that Agelakos discovered their claim no later than July 31, 2007. The Statement of Claim was issued after the two-year limitation period had expired. The claim of Angelakos is statute-barred. The defendants’ motions are granted.
Background
[6] Agelakos commenced an action on September 28, 2009, alleging damages arising out of an investment that they made in an offshore hedge fund. They allege that the defendants caused their investment losses.
[7] In the Statements of Defence the defendants’ plead that the Agelakos’ claim was statute barred as it was commenced after the expiry of the applicable limitation period under the Limitations Act 2002, S.O. 2002, c 24, Sch. B.
[8] All parties concede that a two-year limitation period is applicable to this action.
The Law
[9] Rule 20.04(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, O. Reg. 194, provides that a court may grant summary judgment if it is satisfied that there is “no genuine issue requiring a trial with respect to a claim or defence.”
[10] The Ontario Court of Appeal in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, articulated the “full appreciation test” to be followed for summary judgment:
… 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 a trial?
[11] The relevant provision of the Limitations Act 2002 is:
Discovery
- (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,
(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).
Analysis
[12] In making my finding I rely upon the uncontroverted discovery evidence of Kathy Agelakos and Cristos Agelakos.
[13] Kathy Agelakos testified that she spoke, by telephone, with an investigator from the Investment Dealers Association. Although she incorrectly spelled his name as “Testu”, counsel for the Agelakos has subsequently advised that the correct spelling of the name is “D’Astous”, and that the exact date of that telephone conversation was July 11, 2007.
[14] Kathy Agelakos testified that Mr. D’Astous advised her that she had lost her money. She requested that her friend Mr. Juniper speak to Mr. D’Astous. This occurred, and Mr. Juniper advised her that Mr. D’Astous confirmed that all of her money was gone. Her evidence was that she decided at that time that she wanted to sue the defendants to get her money back.
[15] Her further evidence was that in July 2007, following the telephone discussions referred to in paragraphs 12 and 13, she advised her husband, Cristos, of these discussions, and that, at that time, he stated that he wanted their money back, and that he wanted to sue the defendants.
[16] Cristos Agelakos corroborated this testimony.
[17] Counsel for the intervener initially requested that should I find that this action was statute-barred, that I refrain from finding as a fact the actual date that the Agelakos discovered their claim, so as to not prejudice the intervener in a subsequent negligence action. When pressed, counsel acknowledged that I must ground my finding regarding the commencement of the limitation period in a finding of fact.
[18] Counsel for the intervener submitted that there are two different versions of events that the Agelakos have given: one being the testimony on the discovery and the other being the information provided to Mr. Bennett at his office in October 2007.
[19] I am satisfied that upon a careful review of Mr. Bennett's affidavit and the discovery transcript that Mr. Bennett's affidavit does not contradict the sworn testimony of Kathy and Cristos Agelakos.
[20] Counsel for the intervener urged me to accept an interpretation s. 5(1)(a) of the Limitation Act 2002, that is somewhat variable and dependent upon the sophistication and expertise of a plaintiff, arguing that Agelakos possessed minimal business and financial knowhow, and therefore the limitation period should not commence until after the Agelakos met with Mr. Bennett and received legal advice.
[21] I do not accept this argument. The case law does not support the proposition that if one’s business acumen lies below a certain level, then the limitation period does not commence until one obtains the services of a lawyer. Section 5(1)(a) deals with actual knowledge; s. 5(1)(b) is the deeming provision. The issue before me involves s. 5(1)(a) and the actual knowledge of Agelakos.
[22] Further, counsel asserted that until the Agelakos met with Mr. Bennett, they did not know that a “proceeding” was an appropriate means to seek to remedy the wrong.
[23] Kathy and Cristos Agelakos testified, that immediately after being informed of the loss of their investment, that they wanted to sue the defendants to get their money back. Although they may not have known what the word “proceeding” meant, they clearly knew that suing was the method by which they would seek recovery of her money.
[24] I find that this knowledge satisfies the element of the test set out in s. 5(1)(a)(iv), of the Limitation Act, 2002.
Finding
[25] I am satisfied that I can reach a full appreciation of the evidence and the issue based upon the affidavit material and that this is an appropriate matter for a summary judgment.
[26] I find that, during the month of July 2007, following discussions by Kathy Agelakos and David Juniper with Mr. D’Astous on July 11, 2007, and Kathy Agelakos’ subsequent conversations with her husband, Cristos Agelakos, all of the elements of s. 5(1)(a) of the Limitation Act, 2002, have been satisfied; the Agelakos knew
a. that they had sustained a loss,
b. that the loss had been caused by an act or omission,
c. that the act or omission was that of the defendants, and
d. that they wanted to sue the defendants to get their money back.
[27] I find that the Agelakos “discovered” their claim against the defendants during the month of July in 2007; the limitation period commenced no later than July 31, 2007.
[28] I make no finding as to whether Agelakos had discovered their claim prior to that date.
[29] As the Statement of Claim was issued on September 28, 2009, it was issued outside of the two-year limitation period; the Agelakos’ claim is statute-barred.
[30] The defendants’ motions are granted. The Agelakos’ claim against the defendants is dismissed, with costs, if demanded.
[31] The parties may provide cost submissions not to exceed three pages (not including any offers to settle or bill of costs). Counsel for the defendants shall provide their submissions within 15 days. Counsel for the Agelakos and the intervener shall provide their submissions within 15 days thereafter, with reply submissions, if any, within 7 days thereafter.
D.L. EDWARDS J.
Released: January 7, 2014
GUELPH COURT FILE NO.: 802/09
DATE: 20140107
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GEORGE GALINEAS, FEVRONIA GALINEAS, KATHY GALINEAS, KATHY AGELAKOS AND CRISTOS AGELAKOS
Plaintiffs
– and –
RBC DOMINION SECURITIES INC., ROYAL BANK OF CANADA, AND KOSTA DARIOTIS
Defendants
– and –
JAMES HOWARTH BENNETT
Intervener
REASONS FOR JUDGMENT
D.L. EDWARDS J.
Released: January 7, 2014