Grzesiowski v. Rokicki, 2015 ONSC 401

COURT FILE NO.: CV-12-454935

DATE: 20150217

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ryszrd Grzesiowski also known as Richard Grzesiowski, Plaintiff

AND:

Stanislaw Rokicki also known as Stanley Rokicki, Defendant

BEFORE: Stewart J.

COUNSEL: Marek Tufman, for the Plaintiff

Alfred Schorr, for the Defendant

HEARD: September 29, 2014

ENDORSEMENT

1The Defendant Stanley Rokicki moves for summary judgment pursuant to Rule 20 of the Rules of Civil Procedure dismissing this action on the basis that it is statute-barred by reason of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.

2The Plaintiff Richard Grzesiowski takes the position that the evidence filed on the motion tends to support his position that the limitation period defence should not succeed. In any event, he submits that the limitation period issue is one which requires a trial on a full record to determine.

Background

3Grzesiowski alleges in his Statement of Claim that there was an agreement between him and Rokicki to purchase 10% of the shares of a Polish company called Vicpol Tech for $124,000.00. The funds to effect that purchase are claimed to have been advanced by Grzesiowski to Rokicki in increments during 2004 and 2005.

4Grzesiowski claims that Rokicki never transferred shares to him as agreed and has not returned the money advanced to him despite promises to do so.

5Grzesiowski clarified on his examination for discovery that in fact the shares to be purchased were actually those in a company called Inline Polska Sbzoo (“Inline”). Vicpol Tech was the clearing house for funds destined for ultimate investment in Inline.

6The money advanced by Grzesiowski was purportedly destined to finance the building of furnaces in Kleszczow, Poland. Grzesiowski claims that when he attended with Rokicki in Poland in August of 2005 he discovered that no furnaces had been built and he had been misled about the details of the project.

7Grzesiowski claims that he was to have replacement shares issued to him by Rokicki in another company called Bazalt because Inline was no longer in existence. Grzesiowski has produced a handwritten document prepared and signed by Rokicki declaring his undertaking to provide 10% of the shares in Bazalt to him by the end of April, 2009.

8Grzesiowski did not receive the Bazalt shares as promised by Rokicki. When he pressed Rokicki for them, he says that his demands were put off and deflected by Rokicki.

9Grzesiowski swears that since 2005 he has repeatedly threatened to commence legal proceedings against Rokicki and that Rokicki had asked him not to do so, promising him that the money owing would be repaid.

10In April 2010 Grzesiowski consulted a lawyer about his claim.

11Grzesiowski then met with Rokicki on June 2010. Grzesiowski had prepared a document for Rokicki’s signature at the meeting but Rokicki refused to execute it. However, Grzesiowski says he was assured once again by Rokicki during their meeting that the entire amount would be repaid to him by the end of June 2010. This discussion was apparently surreptitiously recorded by Grzesiowski.

12It is not denied by Rokicki that the transcript of the conversation contains assurances from him that he will repay the money that he received from Grzesiowski, but without interest.

13Grzesiowski takes the position that the promises made in that conversation by Rokicki constitute an acknowledgement of his indebtedness that serves to extend the limitation period and to defeat the argument that his claim is statute-barred. Alternatively, he argues that a promissory estoppel operates in these circumstances such that it should be found that any applicable limitation period has been waived by Rokicki.

Is there a genuine issue requiring a trial?

14The Supreme Court of Canada has provided guidance as to the approach to be taken when considering the availability of summary judgment (see: Hryniak v. Maudlin, 2014 SCC 7, [2014] 1 S.C.R. 87). It remains the case, however, that summary judgment without trial should be granted only in a case where the fair and just determination of issues does not require a trial.

15In my view, it is not clear on the evidence on this motion that the limitation defence will succeed. It is at least arguable that Rokicki’s conduct and promises were reasonably relied upon by Grzesiowski to his detriment. Grzesiowski and Rokicki on numerous occasions over the years of their business dealings have adjusted and rearranged their financial relationship. Rokicki is alleged to have continuously promised Grzesiowski to provide him with value for his money or to repay the money to him. Further, when Grzesiowski threatened Rokicki that he will have to sue him, Rokicki implored him not to do so, making repeated promises he was going to pay him the money back.

16I am therefore of the view that the limitation period defence, the precise date on which it must be said that the limitation period started to run and the availability to the Plaintiff of a promissory estoppel finding are inextricably entwined with the other factual issues to be dealt with in this action. As a result a trial is required to achieve a just resolution.

17In my opinion, there is no other more easily available and more proportionate way of adjudicating upon these issues in a fair and just manner other than by trial.

Conclusion

18For these reasons the motion is dismissed.

Costs

19If the parties cannot agree on the subject of costs, brief written submissions may be delivered on behalf of Grzesiowski within 20 days of today’s date, and on behalf of Rokicki within 15 days thereafter.

Stewart J.