COURT FILE AND PARTIES

COURT FILE NO.: CV-12-443750
DATE: 20151019

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HOPE UNEGBU

Plaintiff

– and –

WFG Securities of Canada Inc., Eniola Agbi and Sanni Adada

Defendants

C. Nwobele, for the Plaintiff

R. Szymanski, for the WFG Securities and Eniola Agbi
J. Oladejo, for Sanni Adada

HEARD: September 25, 2015

s.a.Q. akhtar j.

FACTUAL BACKGROUND

Introduction

[1] The defendants bring a motion for summary judgment asking this court to find that the plaintiff’s claim was commenced after the requisite limitation period expired and should be dismissed on the basis that it is statute barred.

The Factual Backdrop to the Motion

[2] The plaintiff, Hope Unegbu, entered into an investment arrangement with WFG Securities in 2008. The circumstances leading up to that arrangement forms the kernel of the plaintiff’s action. According to the plaintiff, she was introduced to WFG by Sanni Adada, an accountant, who told her of a method of investment that would yield significant financial reward. Adada advised that WFG would borrow money on her behalf for investment purposes, which would see a return of 8% on the monies borrowed. In order to effect this investment, Adada introduced the plaintiff to Eniola Agbi, a financial adviser employed by WFG.

[3] It was subsequently agreed that $100,000 would be borrowed from AGF Trust Company and invested on the plaintiff’s behalf. On 17 June 2008, AGF approved the loan of that sum with an interest rate of prime plus 1.5% which, on that date, equalled 6.25%. On 2 June 2008, Agbi met the plaintiff to complete the paperwork to begin the investment. There is a dispute between the parties as to the representations made at this meeting. For the purposes of this motion, however, it is clear that the plaintiff entered into a contract under which she received the $100,000 loan which would be invested for an 8% return. The plan was to invest $50,000 into the Dynamic Edge Equity Portfolio and $25,000 each into the IA Clarington Dividend Growth Fund and Dynamic Value Fund of Canada.

[4] Those investments were purchased on 13 June 2008 and, by early July 2008, the plaintiff began receiving investment income. As part of the loan agreement, AGF began withdrawing the loan repayments with interest from her bank account.

[5] In November 2008, however, the plaintiff noticed the balance of investment loan had increased with a corresponding decrease in the value of her investments. The plaintiff received a letter on 2 July 2008 from AGF indicating that “the investments you have purchased with the proceeds of the loan are being held as security in support of your borrowing facility with us.” The plaintiff contacted Adada and Agbi to demand the return of her money and contacted Agbi’s manager, Joseph Ashebiode, in pursuit of this goal. In January 2009, Ashebiode informed the plaintiff that Agbi had failed to get the best interest rate deal and promised to assist her in her efforts. That assistance, however, failed to materialise.

[6] By mid-2009 the plaintiff began to pay off the interest with her own money. The plaintiff, in examinations for discovery, indicated that by May 2009 she had sustained financial loss as a result of Agbi and Adada’s conduct. She continued to ask Ashebiode for help but had resolved that she was “doomed” and gave up the efforts to get out of the transaction.

[7] In July 2011, the plaintiff obtained a loan from the Royal Bank of Canada whose rate sufficiently low to allow her to pay off the AGF loan. The loan was repaid in June 2011 and the investments were redeemed in November 2011.

[8] The plaintiff issued a Statement of Claim on 11 January 2012. The allegations included negligence, misrepresentation, breach of fiduciary duty and deceit.

Summary Judgment

[9] Rule 20.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, states that:

(2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or

(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.

(2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

The well-known test of Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, mandates the court to grant summary judgments in cases where there is “no genuine issue requiring a trial.” There is no difficulty, in the circumstances of this case, in concluding that this test has been satisfied. On the basis of the materials before me, I am able to make the necessary findings of fact to decide this motion on its merits.

LEGAL PRINCIPLES

The Limitation Period

(a) The Statutory Limitation Period

[10] Section 4 of the Limitations Act, S.O. 2002, c. 24, Schedule B ("the Act") reads as follows:

4. 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.

[11] Section 5 of the Act deals with the date upon which the claim is discovered:

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).

[12] It is important to note that s. 5(2) of the Act imposes a presumption that a claimant knows of the claim on the day the act or omission upon which the claim is based took place, unless the contrary is proved.

[13] A party is not required to commence an action before they know that they have a “substantial chance” of success: see Everding v. Skrijel , 2010 ONCA 437, 100 O.R. (3d) 641, at para. 11. However, the fact that a party does not appreciate the legal significance of the facts does not stop the limitation clock if that party knew of the material facts founding their claim: see Nicholas v. McCarthy Tétrault, 2008 54974 (ON SC), at para. 27, aff’d 2009 ONCA 692, 254 O.A.C. 197. The inquiry into the “discovery” of a claim is factual and the findings will vary from case to case. In Lawless v. Anderson, 2011 ONCA 102, 276 O.A.C. 75, at para. 23, the court explained that, “The question to be posed is whether the prospective plaintiff knows enough facts on which to base an allegation of negligence against the defendant.”

(b) Due Diligence

[14] Reliance on the discovery doctrine involves the reasonable exercise of due diligence in discovering the facts founding the claim. The onus is on the plaintiff in any given case to rebut a limitation period defence. That plaintiff must demonstrate that it behaved the same as a reasonable person in the same or similar circumstances using reasonable diligence in discovering the facts in issue: see Farhat v. Monteanu, 2015 ONSC 2119, 125 O.R. (3d) 267, at para. 34; and Bolton Oak Inc. et al, v. McColl-Frontenac Inc. et al, 2011 ONSC 6567, 64 C.E.L.R. (3d) 239, at paras. 12-14.

[15] The jurisprudence indicates that when the issue of due diligence is raised, a motion judge is entitled to examine the evidentiary record to decide whether there was a reasonable explanation why the discovery could not have been determined earlier through the exercise of reasonable diligence: see Peppers v. Zellers Inc., 2006 42355 (ON CA), 83 O.R. (3d) 648, at paras. 12, 14. If a plaintiff fails to provide such an explanation their motion will be denied: see Wakelin v. Gourley, 2005 23123 (ON SC), 76 O.R. (3d) 272, at para. 15.

IS THE PLAINTIFF’S CLAIM STATUTE BARRED?

The Position of the Parties

[16] The moving parties, the defendants in this case, argue that the plaintiff became aware of all of the material facts founding her claim by May 2009, at the very latest. As such, the issuance of her Statement of Claim, two and a half years later, was well outside the stipulated limitation period.

[17] The plaintiff, on the other hand, maintains that the limitation period commenced on 13 June 2011, when she received a letter from the Mutual Fund Dealers Association of Canada informing her that if she wished to pursue a civil claim she should retain a lawyer. She also argues that the delay in commencing litigation was motivated by her desire to stem the flow of losses she was incurring.

What Was the Date of Discovery?

[18] It is undisputed that the plaintiff became aware that something was wrong shortly after she had agreed to the terms of the investment with the defendants. In her Statement of Claim, she alleges that when she returned home after signing the investment documents, she realised that the document contained “incorrect, misleading and ambiguous information and that a lien had been placed on her home without her consent and knowledge.” When she contacted Agbi, he allegedly became angry and aggressive and refused to answer any information.

[19] In November 2008, she received investment statements from IA Clarington, Dynamic Fund and AGF which disclosed information contradicting the promises made by Adada and Agbi. Her concern was such that she called both Agbi and Adada requesting cancellation of the transaction. In January 2009, she met with Agbi’s manager, Joseph Ashebiode, in a further effort to have her money returned. She knew, that at point, both Agbi and Adada were both responsible for her losses. Ashebiode told the plaintiff that Agbi had neglected to get the best deal in interest rates. Ashebiode’s promises of assistance, however, proved worthless. By mid-2009, the investment income yielded was unable to service the business loan, which resulted in the plaintiff using her own monies to pay the interest. In her discovery evidence, the plaintiff conceded that by May 2009, she knew she had suffered loss as a result of the defendants’ actions. The plaintiff, at that point, gave up trying to recoup her losses.

[20] In my view, the plaintiff, by her own admission, knew of the loss that had occurred in November 2008. On that date, she was also fully aware of the material facts forming the foundation of her claim. Even on the most generous reading of the chronology, the plaintiff could rely only on May 2009, at the latest, as being the start of the limitation period. By any standard, a reasonable person in the plaintiff’s circumstances ought to have known of the claim by May 2009.

[21] The plaintiff argued that even if the she knew of the losses, she was unaware that “a proceeding would be an appropriate means to seek to remedy it” as stipulated by s. 5 of the Act. The plaintiff relied on a series of cases involving medical malpractice such as Anderson v. Laffin, 2004 50061 (ON SC), and Gaudet v. Levy, 1984 2047 (ON SC), 47 O.R. (2nd) 577. These cases do not assist the plaintiff. Gaudet involved a negligence action against two doctors. The plaintiff in that case was treated by the defendants in 1979, but received information from another doctor in late 1981 or early 1982 which indicated that the defendants’ treatment some three years earlier was negligent. The court found that a layperson would be unable to determine a cause of action existed without some knowledge of the requisite standard of care to be administered by the medical profession. Thus knowledge of the treatment itself did not start the limitation period but advice from another medical practitioner did.

[22] The facts of this case could hardly be more different. On the plaintiff’s own evidence, she believed the defendants had committed a wrong. There was no need for any advice of a technical nature to inform her that she had a cause of action. Even if I were to accept that the plaintiff did not realise that she could launch legal proceedings to recover her losses, the limitation period commences on the day upon which a reasonable person with the plaintiff’s abilities and in her circumstances ought to have known of her remedy through a court action. I find that any reasonable person in the plaintiff’s position ought to have known by May 2009, at the very latest, that a cause of action existed within the meaning of s. 5 of the Act. For the same reason, the plaintiff cannot rely on her ignorance of the law to postpone the commencement of the limitation period: see Tétrault, at paras. 27-28; and Boyce v. Toronto (City) Police Services Board, 2011 ONSC 53, at paras. 23, 37.

[23] The plaintiff further argued that her motivations and actions impact the analysis in identifying the start date of the limitation period. She asserts that, from the outset, she attempted to limit the losses being incurred through the failing investments rather than recover her money. A reasonable person in her position therefore would not have turned her mind to commencing an action to recover the monies. I reject this argument for three reasons. First, it is undermined by the plaintiff’s own evidence at the discovery hearing that when she called Ashebiode, in late 2008, she did so because she wanted her money back. Secondly, there was no bar to the plaintiff from seeking to limit her losses and recover the lost funds by commencing a legal action, something that a reasonable person in her circumstances ought to have known and considered. Finally, the plaintiff’s motivation for delaying the commencement of legal proceedings is irrelevant in the context of the limitation period.

[24] I find therefore that the plaintiff’s action was commenced outside the limitation period.

[25] For the reasons set out above, the defendants’ motion is granted and the plaintiff’s action is dismissed.

[26] If the parties cannot agree on costs, I invite the defendants to submit a written application for costs no longer than 5 pages within 30 days of these reasons. The plaintiff is to file written reasons of the same length within a further 30 days.

S.A.Q. Akhtar J.

Released: October 19, 2015

COURT FILE NO.: CV-12-443750
DATE: 20151019

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HOPE UNEGBU

Plaintiff

– and –

WFG Securities of Canada Inc., Eniola Agbi and Sanni Adada

Defendants

REASONS FOR JUDGMENT

S.A.Q. Akhtar J.