COURT FILE NO.: 11-30252SR

DATE: 2015/10/23

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Estate of Ruth Urbas, Deceased by her estate trustee Carol Frances Conrad Urbas and Carl F. Urbas, Plaintiffs

AND:

Home Savings and Loan Corporation also known as Home Trust Company, Defendant

BEFORE: Justice A. J. Goodman

COUNSEL:
M. Roefe for the Plaintiffs, responding parties

A. Jackson for the Defendant, moving party

HEARD: August 27, 2015

ENDORSEMENT

Introduction

[1] This action concerns a claim for payment under two Certificates of Deposit (the “Certificates”) the Defendant, Home Trust Company (“Home Trust”), issued in 1988 to each Plaintiff, Carl and Ruth Urbas.

[2] The Plaintiffs bring the claim under the simplified rules. The Plaintiffs allege Home Trust is indebted to Ruth Urbas’s Estate in the amount of $60,000.00, plus interest and costs. The Plaintiffs say the debt results from a Certificate the Defendant issued on June 28, 1988, to Ruth Urbas, the registered holder, in the principal amount of $60,000.00, plus 9.55% interest per annum.

[3] The Plaintiffs’ also claim that Home Trust is indebted to the Plaintiff, Carl Urbas, Ruth Urbas’s son, the sum of $56,720.00, plus interest and costs. This claim is pursuant to a Certificate Home Trust issued on September 29, 1988, to Carl Urbas, the registered holder, for the principal amount of $56,720.00, plus 9.55% annual interest.

[4] Both Certificates matured on September 29, 1988. Home Trust refused to pay either Certificate when the Plaintiffs presented the Certificates on or about June 21, 2011.

[5] The Plaintiffs commenced the within action on September 23, 2011, seeking payment and interest, approximately 23 years after the Certificates matured. The Statement of Claim does not detail how the Plaintiffs came to be aware, or have knowledge, of the Certificates, but it does identify September 29, 1988, as the Certificates’ maturity date.

[6] The Defendant served a Statement of Defence on November 21, 2011.

[7] The Plaintiffs delivered their Affidavit of Documents on or about April 23, 2013. The Defendant delivered its Affidavit of Documents on July 10, 2013. Examinations for discovery of Carl Urbas and Cathy Sutherland (on behalf of Home Trust), were held on October 8, 2013. Ms. Sutherland retired from Home Trust on May 31, 2010, at which time she was the Senior Vice President – Finance. She began employment with Home Trust on April 30, 1990, as a Controller. Prior to that she was an auditor of Home Trust employed by Touche Ross.

[8] The examinations for discovery were held after the death of Ruth Urbas on April 20, 2012, and accordingly, she was never examined.

[9] The Defendant moved for summary judgment on two bases. First, the Defendant pleads that this action is out of time as against them and is statute barred pursuant to the provisions of the Limitations Act, 2002, S.O. 2002, c. 24. Second, the Defendant advances a delay argument under the equitable principles of laches.

Background

[10] I accept the following facts arising from the evidence adduced in this application.

[11] The Defendant’s covenant to pay the Plaintiffs as stated in the Certificate of Deposit, a pre-printed form authored by the Defendant, is as follows:

[Home Trust] hereby promises to pay to the Registered Holder hereof the principal sum in lawful money of Canada on the maturity date on presentation and surrender of the certificate at the branch of issue.

Interest shall be calculated on the Principal sum at the rate per annum herein stated from the date of purchase until the date of maturity and the amount thereof shall be paid or credited to the Registered Holder on the dates indicated or be accumulated and paid or carded at the date of maturity as stated above.

This certificate is not redeemable prior to the maturity date except on the death of a registered holder. The Corporation will be liable only for the amount of principal and interest as set out herein and no interest shall accrue after the maturity date.

[12] The Certificate also reads, “THIS CERTIFICATE IS TO BE SURRENDERED ON REPAYMENT” (emphasis in original).

[13] During his examination for discovery, Carl Urbas testified that he first became aware of the Certificates in May 2010 when he discovered a box of paper while cleaning out his mother’s house. Mr. Urbas testified he asked his mother about the Certificates and she advised that she did not know what the documents were and did not recall seeing them before.

[14] Additionally, on May 21, 2014, the Plaintiffs produced a copy of Ruth Urbas’s 1988 tax year return. Included within the 1988 tax return was a copy of a T5 Statement of Investment Income Home Trust issued for investment income Ruth Urbas earned in 1988 for the Certificates issued to her.

[15] Ruth Urbas’s 1988 tax return was prepared by Ms. Priscilla Monteith, and, as appears from Ms. Monteith’s letter attached to Ruth Urbas’s tax return, the tax return was completed by April 5, 1989.

[16] The T5 included in Ruth Urbas’s 1988 tax return reports investment income of $1,459.97. This amount is consistent with the interest she would have been paid for the Certificate from the issue date, June 28, 1988, to the maturity date, September 29, 1988, on a principal amount of $60,000.00 with an annual interest rate of 9.55%.

[17] Additionally, the T5 references the number “1521 17359”. This number matches the client and certificate numbers appearing on the face of the Certificate issued to Ruth Urbas.

[18] As appears from Ruth Urbas’s 1989 tax return, no T5 from Home Trust was reported by her for the 1989 tax year.

[19] On January 14, 2015, Gowlings received from Mr. Roefe a screenshot of the electronic record of the T5 issued to Mr. Urbas for the 1988 tax year. In producing the screenshot of the T5, Mr. Roefe advised that the tax records of Carl Urbas and Ruth Urbas from 1988 and onward was irrelevant. Further, Mr. Roefe advised the effort and costs of production of other tax records in the possession of their former accountant, Michael Smith, were disproportionate to their evidentiary value. Mr. Roefe also advised that the 1988 T5 was the only document that Mr. Urbas had authorized Mr. Smith to release to Home Trust.

[20] The screenshot of the electronic record of Carl Urbas’s T5 indicates an amount of $1,380.18 (attached as Exhibit “S” to Brian Mosko’s Affidavit). This amount is consistent with the interest Carl Urbas would be paid for the Certificate from the issue date, June 28, 1988, to the maturity date, September 29, 1988, on a principal amount of $56,720.00 with an annual interest rate of 9.55%.

Positions of the Parties

[21] The moving party Defendant submits the action against them is based on acts or omissions that occurred before January 1, 2004. Therefore, the transition provisions pursuant to the Limitations Act, 2002 apply.

[22] In response to the motion, the Plaintiffs submit the Defendant acknowledges the Plaintiffs are in possession of the original Certificates, and the Plaintiffs presented the certificates of deposit for surrender and payment. Further, presentation and surrender of the original Certificates are necessary for the Defendant to pay, which directly impacts on the limitation period.

[23] The Plaintiffs submit that they have not been paid the principal or any interest pursuant to the Certificates. They submit the Defendant has no direct evidence that the Defendant paid the Plaintiffs the principal or interest before the Plaintiffs surrendered the Certificates on June 21, 2011.

[24] The Plaintiffs further submit the Defendant never contacted the Plaintiffs, either by phone or mail, regarding the outstanding Certificates, although such contact is the Defendant’s usual course of conduct. Additionally, the Defendant has no records or other evidence that it tried to contact the Plaintiffs about the Certificates.

[25] The Plaintiffs submit the Certificates were purchased by Frank Urbas, Carl Urbas’s father and Ruth Urbas’s husband, without their knowledge, and before Frank Urbas’s death on November 25, 1987, pursuant to instructions given before his death. They submit they continued to have no knowledge of the Certificates until May 2010, when the Plaintiffs discovered the certificates in a drawer in the family home.

[26] The Plaintiffs submit they provided tax records, referred to by Brian Mosko in his affidavit, on a without prejudice basis and deny they are relevant to the matters at issue. The Defendant has not produced an Order determining the relevance or propriety of the Defendant’s discovery question upon which these documents were provided to Defendant.

[27] The Plaintiffs deny the T5s provided sufficient notice or knowledge of these particular Certificates. They assert they are unsophisticated in financial matters and it was Frank Urbas who purchased the Certificates and dealt with their investments.

[28] The Defendant submits the Plaintiffs delayed commencing the action for approximately 23 years. And, documents produced through discovery show the Plaintiffs were aware of the Certificates in 1988 or 1989, despite Carl Urbas’s assertion he did not know about the Certificates until May 2010.

[29] Moreover, the evidence that still exists confirms that the Certificates matured in 1988, were not renewed, and were paid out to the Plaintiffs at maturity.

[30] The Defendant argues the Plaintiffs’ delay in commencing the action has and continues to prejudice the Defendant. Relevant records relating to the Certificates have been destroyed. For example, the process to redeem a Certificate of Deposit in 1988, if the original Certificate of Deposit was lost or mislaid, was to sign a bond of indemnity. Any record of a bond of indemnity would have been destroyed in 2008. Also, if a Certificate of Deposit remained unclaimed, the process in 1988 was to contact the client with phone calls or letters. If a call was unsuccessful, a letter would be sent. Records were maintained of the process taken with particular Certificates of Deposit. In addition, Ruth Urbas could not be examined for discovery.

[31] Based on these factors, the Defendant submits the action is statute barred because the Plaintiffs commenced it outside the limitation period. Similarly, the action should be dismissed based on the application of the doctrine of laches.

Legal principles

[32] On January 1, 2004, the Limitations Act, 1990, R.S.O. 1990, c. L.15, was repealed and replaced by the Limitations Act, 2002. The Limitations Act, 2002 represents a revised, comprehensive approach to the limitation of actions.

[33] According to the transitional rules, if the claim was discovered before January 1, 2004, the former six-year limitation period applies. Further, if the former limitation period expired before January 1, 2004, then the claim is statute barred. If the claim was not discovered prior to January 1, 2004, the two-year limitation period under the Limitations Act, 2002 applies.

[34] In determining whether the Plaintiffs knew or ought to have known of the facts giving rise to the cause of action, the knowledge of their solicitor is imputed to them.

[35] If the Limitations Act, 2002 applies, courts do not have discretion to extend the basic two-year limitation period, as the Court of Appeal recently confirmed.

[36] Section 5 of the Limitations Act, 2002 sets out when a claim is “discovered” within the meaning of the statute:

5. (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).

(2) 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.

[37] Statutes of limitations have long been said to be statutes of repose. There comes a time when a potential defendant should be secure in his reasonable expectation that he will not be held to account for ancient obligations: M.(K.) v. M.(H.), 1992 31 (SCC), [1992] 3 S.C.R. 6, at para. 22.

[38] Once a limitation period has elapsed, the potential defendant should no longer be concerned about the preservation of evidence relevant to a claim: M.(K.) v. M.(H.), at para. 23. Plaintiffs are expected to act diligently and not sleep on their rights. Statutes of limitation are an incentive for plaintiffs to bring suit in a timely fashion: M.(K.) v. M.(H.), at para. 24.

Analysis

[39] This motion for summary judgment is brought under Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 1994.

[40] The Plaintiffs argue there are genuine issues requiring a trial, including: the state of the Plaintiffs’ knowledge of the Certificates such to give rise to a laches defence as raised by the Defendant, whether the Defendant’s conduct contributed to the conduct attributed to the Plaintiffs to give rise to the defence of laches, whether the Defendant paid the Plaintiffs the principal or interest on the Certificates, whether the Certificates are demand notes upon which s. 22 of the Bills of Exchange Act, R.S.C. 1985, c. B-4, and s. 5(3) of the Limitation Act, 2002 apply.

[41] The Defendant submits there is no genuine issue requiring a trial because the evidence clearly establishes the limitation period to commence this action expired in 1995, at the latest. The Plaintiffs had knowledge of the Certificates as early as 1989, and they delayed unreasonably in the bringing this action for over 23 years, to the prejudice of Home Trust. Both the expiry of the limitation period and the doctrine of laches bar this action.

[42] In Hryniak v Maudlin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada overturned the “full appreciation” test promoted by the Ontario Court of Appeal in summary judgment matters. The Supreme Court held there is no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits. A trial is not required if a summary judgment motion achieves a fair and just adjudication, allows the judge to make the necessary findings of fact and apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.

[43] Judges must interpret summary judgment rules broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims. On a motion for summary judgment, each side must put its best foot forward with respect to the existence or non-existence of material issues to be tried. A party is not entitled to sit back and rely on the possibility that more favourable facts may develop at trial. The motions court is entitled to assume the evidence contained in the record is all the evidence the parties would rely on if the matter proceeded to trial.

[44] A defendant may move for summary judgment on the basis that the statutory limitation period applicable to a claim has expired. To resist an order for summary judgment on a limitation period issue, the plaintiff must satisfy the court that there are material facts to be tried as to when the cause of action arose and must also demonstrate that there is a real chance of success at a trial of the issue. The plaintiff must present the court with coherent evidence showing a genuine issue for trial.

[45] I am satisfied that these issue can be dealt with on the record presented here in this motion.

[46] Two preliminary matters affecting the applicable limitation period must be addressed. First, I must determine whether the Certificates of Deposit are demand obligations. Second, I must determine whether the Certificates of Deposit are promissory notes.

Are the Certificates of Deposit demand obligations?

[47] The short answer is affirmative. The Certificates are demand obligations. In 2148251 Ontario Inc. v. Catan Canada Inc., 2013 ONSC 4049, at paras. 15-19, Sloan J. found the debt obligation at issue was a demand obligation despite appearing “to be a mixed obligation”. Here, the Certificates have contingent obligation components – the specified maturity date – and demand obligation components – the “presentation and surrender” proviso. The Certificates do not specify when presentation must occur. They only say it must occur after the maturity date. As a result, the demand date is uncertain and what appears as a mixed obligation on the Certificates’ face is properly construed as a demand obligation.

[48] A debt obligation is either a demand obligation, a contingent obligation, or possibly, a delayed-demand obligation: Catan Canada Inc., at para. 15.

[49] Sections 22 and 23 of the Bills of Exchange Act provide guidance to determining whether a debt obligation is a demand or contingent obligation: Skuy v. Greennough Harbour Corporation, 2012 ONSC 6998, at para. 31; Catan Canada, at para. 16. Section 22(1) states a “bill is payable on demand (a) that is expressed to be payable on demand or on presentation; or (b) in which no time for payment is expressed.” Section 23 states a bill is “payable at a determinable future time, within the meaning of this Act, that is expressed to be payable (a) at sight or at a fixed period after date or sight; or (b) on or at a fixed period after the occurrence of a specified event that is certain to happen, though the time of happening is uncertain.”

[50] In Skuy, at para. 31, Perell J. summarized some cases interpreting these sections: “[A] debt obligation that does not specify a date for repayment is a demand obligation. Where a debt obligation is payable on a fixed date, it is not a demand obligation, even if the obligation stipulates that the lender must give notice or make a demand for payment before enforcing the debt obligation.” On the latter point, Perell J. noted, at para. 31, “This is an example of the confusing nature of the law because a non-demand obligation can have a demand component to it.”

[51] Where no time is fixed for repayment of a loan, and no other terms are mentioned, the loan is repayable on demand: Wilkosz v. Amato, [1999] O.J. No. 1958, at para. 50.

[52] Here the Certificates specify September 29, 1988, as the maturity date. Based on that fact alone, they would not constitute demand obligations under s. 22(1)(a) because that section requires that the debt obligation express no payment time. However, despite specifying the maturity date, the Certificates may still constitute demand obligations because the Certificates require “presentation and surrender” to receive payment.

[53] In Catan Canada, Sloan J. had to interpret a promissory note with similar terms and concluded it was a demand obligation. The promissory note was “due ‘on demand after the maturity date’”. Sloan J. concluded, at para. 17, “[w]hile the maturity date presents a determinable future time, the addition of “on demand” clarifies that s. 23 does not apply. This is not a fixed period after a date, because the date of the demand is uncertain.” The same applies here. Although the maturity date is a determinable future time, the “presentation” proviso is an express statement that the Certificates are demand obligations. The Certificates do not limit when after the maturity date the holder can demand payment. As a result, there is no fixed period after the specified date.

[54] Additionally, although the Certificates could be considered ‘non-demand obligations with demand components’, the case here is distinguishable from Berry v. IPC Securities Corp., [2009] O.J. No. 1598, the case to which Perell J. referred to in Skuy when stating non-demand obligations can have demand components.

[55] In Berry, the debt obligation was ruled a contingent obligation. However, in that case, the debt obligation’s demand component only arose upon default in paying the principle or interest. Otherwise the debt obligation, which specified a payment date, was a non-demand obligation. Belobaba J. determined the default demand component did not render the non-demand obligation a demand obligation. At para. 17, Belobaba J. stated “[w]here a promissory note provides that it is to be payable upon demand upon a default occurring, this does not make it a demand note.”

[56] In Berry, the demand component was a secondary component because the demand only arose on default. The case here is different. The demand components are inherent to the Certificates. The demands do not arise based on Home Trust’s failure to pay back the deposit; rather the Certificate holder must make the demand to receive payment. As a result, the Certificates, while they mix contingent and demand components, constitute demand obligations.

Are the Certificates of Deposit promissory notes under the Bills of Exchange Act?

[57] Again, the response is affirmative. The Certificates are promissory notes under the Bills of Exchange Act. Section 176 defines a promissory note. Section 176 requires an agreement to have the following elements to qualify as a promissory note:

• An unconditional promise in writing made by one person to another;
• The maker’s signature; and,
• The maker engages to pay, on demand or at a fixed determinable future time, a sum certain in money to, or to the order of, a specified person or bearer.

[58] The Certificates are in writing, they are promises Home Trust made to Ruth and Carl Urbas, and they are signed by Home Trust’s representatives. The agreement stipulates Home Trust “hereby promises to pay” the holders “the principal sum … on the maturity date on presentation and surrender of this certificate.” Further, the sum (principal and interest) is clearly set out in the agreement. From this it is evident the agreement is an unconditional promise to pay a certain sum of money, on demand or at a fixed time in the future, to a specified person.

[59] Further, s. 186(1) establishes the provisions of the Act relating to bills apply to promissory notes with necessary modifications and some exceptions.

[60] In 1988, when the Certificates were issued, Home Trust was legally known as Home Savings & Loan Corporation and was a loan corporation incorporated under the Loan and Trust Corporations Act, 1987, S.O. 1987, c.33.

[61] The Act provides that a registered provincial loan corporation may, in a debtor and creditor relationship for the purposes of investment, receive money, repayable upon the expiry of a fixed term, and the corporation may issue debentures or other evidences of indebtedness in respect thereof, appropriate to the debtor and creditor relationship created thereby: Loan and Trust Corporations Act, 1987, s. 155(1).

[62] I will now address the Defendant’s argument that the Plaintiffs’ claim should be barred. For the following reasons, I conclude the Plaintiffs’ claim is barred because it was brought after the applicable limitation period expired and because the doctrine of laches and delay applies in this case.

The Plaintiffs brought the claim after the limitation period expired

[63] In this motion, the focus is on the Plaintiffs’ discoverability of the cause of action. For this motion, several cases have been provided by the parties, on the issue of discoverability, albeit many of which are distinguishable on their particular facts. For example, in St. Jean v. Cheung, 2008 ONCA 815, the Court of Appeal held that the limitation period started to run from the time that the Plaintiff’s litigation guardian and counsel received the medical records which, had they been reviewed promptly, would have disclosed immediately the identities of the doctors and the postnatal care provided by them.

[64] The Limitations Act, 2002, contains provisions dealing with claims discovered prior to that Act coming into force. Section 24(3) provides:

If the former limitation period expired before January 1, 2004, no proceeding shall be commenced in respect of the claim.

[65] Consequently, the former limitation periods established by the provisions of the Limitations Act, 1990 will only apply in the circumstances of this case if the limitation period expired before January 1, 2004.

[66] Section 45(1) of the Limitations Act, 1990 provides the following:

The following actions shall be commenced within and not after the times respectively hereinafter mentioned …

(g) an action for trespass to goods or land, simple contract or debt grounded upon any lending or contract without specialty, debt for arrears of rent, detinue, replevin or upon the case other than for slander,

within six years after the cause of action arose ….

[67] Any action on the Certificates is one of simple contract or debt and, therefore, section 45(1)(g) of the prior Act applies and the applicable limitation period for the commencement of this action is within six years after the cause of action arose.

[68] However, the question remains when did the cause of action arise?

[69] A loan payable on demand is payable immediately and the limitation period begins to run from the date of instrument: Bank of Montreal v. Stephen, [1990] N.B.J. No. 612 (C.A.). Notably, the Certificates do not contain any language providing for automatic renewal if the funds owing under them are not claimed after the stipulated maturity date.

[70] I find favour with the Defendant’s position, which is supported by what little documentary evidence remains, that the Certificates matured in September 1988 and they did not remain with Home Trust after maturity. Nevertheless, the Defendant submits that the limitation period for any action on the Certificates would have started to run from their maturity on September 29, 1988.

[71] The relationship between Home Trust and the Plaintiffs with respect to the Certificates is that of debtor and creditor. Pursuant to the terms of the Certificates, Home Trust promised to pay the Plaintiffs the principal amount and accrued interest for the term of the deposit on the maturity date of September 29, 1988, with no further interest to accrue past the maturity date.

[72] The Plaintiffs’ right to repayment of the amounts evidenced by the Certificates began on the maturity date, which was September 29, 1988.

[73] I accept that if the Certificate had been renewed beyond its maturity date, the T5 would have indicated an amount of interest greater than $1,459.97. Moreover, if the Certificate of Deposit had been renewed, or otherwise continued to exist with Home Trust into 1989, Home Trust would have issued Ruth Urbas a T5 in respect of investment income earned in 1989.

[74] I am satisfied that for Ruth Urbas, the latest possible date for the commencement of the limitation period would be April 5, 1989. This is the date of the letter from her accountant, Priscilla Monteith, enclosing the 1988 tax return and T5 in relation to her Certificate.

[75] While the Plaintiffs have the original documents in their possession, I accept the evidence provided in Brian Mosko’s affidavit that payment of the principle pursuant to the obligation can be made by way of bond.

[76] Mr. Mosko’s affidavit stated, at para. 43, where a Certificate of Deposit was lost or mislaid, the process to redeem the amount owing was for the client to sign a bond of indemnity.

[77] Further, I do not accept that the Defendant merely sat with these funds unaccounted for over 20 years without due regard for statutory compliance. This appears to defy the statutory obligations imposed on the Defendant.

[78] Based on the above analysis and findings, the limitation period started running in 1988 or, at the latest, 1989. Since the claim arose before January 1, 2004, the former limitation period of 6 years applies. This means the limitation period expired well before January 1, 2004, and therefore, the Plaintiffs’ claim is statute barred.

Laches and Delay also bars the Plaintiffs’ claim

[79] Laches is established when two conditions are fulfilled: (1) there is unreasonable delay in the commencement or prosecution of proceedings; and (2) in all of the circumstances the consequences of delay renders the grant of relief unreasonable or unjust: Rhyolite Resources Inc. v. CanQuest Resource Corp., [1999] B.C.J. No. 114 (C.A.), at para. 33.

[80] There are two distinct branches to the laches doctrine. The doctrine will apply where the delay of the plaintiff (a) constitutes acquiescence, or (b) results in circumstances that make the prosecution of the action unreasonable: M.(K.) v. M.(H.), at para. 98.

[81] Mere delay is insufficient to trigger laches under either of its two branches. Rather, the doctrine of laches considers whether the delay of the plaintiff constitutes acquiescence or results in circumstances that make the prosecution of the action unreasonable. Ultimately, laches must be resolved as a matter of justice as between the parties, as is the case with any equitable doctrine. The court in exercising its equitable jurisdiction must always consider the conscionability of the behaviour of both parties.

[82] “Acquiescence” has various meanings. One meaning is that a plaintiff stands by and watches the deprivation of her rights and does nothing. Another is that after the deprivation of her rights and in the full knowledge of their existence, a plaintiff delays, leading to an inference that her rights have been waived: M.(K.) v. M.(H.), at para. 100.

[83] A plaintiff’s knowledge of her rights is critical to the notion of acquiescence; however, this knowledge is to be measured by an objective standard so that the question is whether it is reasonable for the plaintiff to be ignorant of her legal rights given her knowledge of the underlying facts relevant to a possible legal claim.

[84] Here, the Plaintiffs knew or ought to have known of their alleged rights for payment under the Certificates as early as 1988 or 1989 when T5s were issued to them and the T5 income was reported on their tax returns for 1988. The Plaintiffs’ communication with their accountant also supports finding they had sufficient knowledge about the existence and nature of the Certificates.

[85] The Defendant submits that, despite having full knowledge of the Certificates, the Plaintiffs stood by and delayed making a claim for payment (assuming no payment was made which the evidence does not support) from 1988 to 2011 – a period of over 23 years. Home Trust submits that in so doing, the Plaintiffs waived any rights they might have had.

[86] Further, I agree with the Defendant that there is prejudice in this case due to the extended passage of time. I do not accept the Plaintiffs’ argument that the Defendant has an onus to preserve documents or to advance the case.

[87] I accept the evidence provided by the Defendants in Mr. Mosko’s affidavit at paras. 42-45. Many of the documents relevant to the action have been destroyed. Any record the Plaintiffs signed a bond of indemnity would have been destroyed in 2008. Records of calls and letters seeking to contact clients regarding unclaimed debts have also been destroyed. Further, no record of the Plaintiffs’ names could be found after searching the Defendant’s records.

[88] Clearly, the Defendant was entitled to destroy records after the passage of a reasonable period of time, in this case, 20 years.

[89] Additionally, the Defendant is further prejudiced by the unfortunate fact that Ruth Urbas passed away and therefore the Defendant could not examine her.

[90] Based on all of the above, I find the action is barred by the doctrine of laches.

Conclusion

[91] On this motion for summary judgment I find that the Plaintiffs failed to commence their action against the Defendant within the time frame set out in the Limitations Act, 2002 and as such are out of time.

[92] For the aforementioned reasons, this motion can be determined by summary judgment under Rule 20.01. There is no genuine issue requiring a trial with respect to whether the action against the Defendant is statue-barred pursuant to the Limitations Act, 2002. I am also satisfied that the Plaintiffs have failed in their claim for equitable relief.

[93] The Defendant’s motion for summary judgment is granted.

[94] If the parties cannot agree on the issue of costs, I will consider brief written submissions. These cost memoranda shall not exceed three pages in length (not including any bill of costs or offers to settle). The Defendant shall file its costs submissions within 10 days of the date of this endorsement. The Plaintiffs may file their costs submissions within 10 days of the receipt of the Defendant’s materials. The Defendant may file a reply within five days thereafter.

Justice A. J. Goodman

Date: October 23, 2015