ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-14-516770
DATE: 20151110

BETWEEN:

ISTVAN KANTOR
Plaintiff

– and –

KRISTA FRY
Defendant

Robert Di Vincenzo, for the Plaintiff

Andreas G. Seibert, for the Defendant

HEARD: September 24, 2015

M. D. FAIETA, j.

reasons FOR DECISION

introduction

1The Plaintiff, Istvan Kantor, commenced an application on November 24, 2014. Amongst other things, Kantor sought a declaration that he was the beneficial owner of 50 percent in a house located at 115 Gore Vale Avenue, Toronto (the “Property”) that was registered solely in the name of the Defendant, Krista Fry. Kantor alleged that ownership of the Property was shared pursuant to an agreement made by the parties. Alternatively, he asserted ownership based on “resulting trust, constructive trust or as a proprietary award for unjust enrichment”. Kantor alleges that the agreement did not address other matters such as occupation rent and he seeks “…redress in law and equity to award the parties…their fair and equitable share of the Property, and its proceeds, in all of the circumstances including: (1) how much each contributed to the Property; (2) when, and for how long, did each of them reside at the Property; and (3) an accounting for occupation rent and rental income.”

2Kantor obtained a Certificate of Pending Litigation (“CPL”) from this Court without notice to Fry on December 3, 2014. Kantor was ordered to provide notice of the CPL to Fry so that she could move to set the CPL aside on December 10, 2014. On December 10, 2014, the Court ordered that the CPL be discharged and that 50 percent of the net proceeds of the sale of the Property be held in trust subject to further Order of this Court.

3The Property was sold in February, 2015. Fifty percent of the net proceeds of sale ($294,058.21) is now held in trust in accordance with the Order made on December 10, 2014.

4On July 14, 2015, on consent of the parties, I made an Order that converted this application into an action given that the parties dispute whether the plaintiff owned a 50 percent interest in the house. A timetable was established for the exchange of pleadings and an affidavit of documents. The parties agreed that Fry will file a Statement of Defence after this motion is determined. The parties also agreed to arrange examinations for discovery by the end of February 2016 and to arrange mediation by June 30, 2016.

5Kantor commenced this action on August 14, 2015. Kantor claims the same relief as sought in the Notice of Application. The Property is a five bedroom house that the parties purchased together on May 28, 1993. Kantor alleges that he and Fry agreed that they would be equal beneficial owners and that they would equally share expenses and profits. Kantor alleges that, during the period 1993 to 2004, he paid or advanced to the Defendant about $110,000 for expenses associated with the Property. The Plaintiff alleges that the parties occupied the Property together with their three children from 1993 until 2004. As a result of the deterioration of their relationship, the Plaintiff occupied the Property less frequently from 1997 to 2004. The Plaintiff alleges that he had keys to the Property until 2010. The Plaintiff alleges that the Defendant resided at the Property from 1993 until its sale in 2015.

6Fry brings this motion for:

(1) An Order, under Rule 59.06(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 to vary this Court’s Order dated December 10, 2014, in order to release all of the proceeds of sale of the Property to the Defendant on the grounds that he did not make full and fair disclosure of all material facts as required by Rule 39.01(6) by failing to put his allegedly contradictory affidavit, sworn in 2004, before the Court;

(2) An Order, under Rule 21.01(3)(d) of the Rules of Civil Procedure, to dismiss this action as frivolous, vexatious or otherwise an abuse of the Court’s process for the following reasons:

a. the claim is barred because it was after the expiry of the 10-year limitation period found in section 4 of the Real Property Limitations Act;

b. the claim is barred by the doctrine of laches and/or acquiescence;

c. the claim should be stayed or dismissed as it is an abuse of process given his allegedly prior sworn evidence respecting the Property which contradicts his claim.

7As will be described in greater detail below, I have varied this Court’s Order dated December 10, 2014, and I have adjourned the motion to dismiss the Claim under Rule 21.01(3)(d) in order to have it also heard under Rule 20 of the Rules of Civil Procedure.

BACKGROUND

8On December 3, 2014, the CPL was granted by this Court on an ex parte basis. The only evidence before the Court was Kantor’s affidavit, sworn November 28, 2014. It alleges that:

• He is a “50% joint owner” of the Property;
• He paid $5,000 towards the purchase of the Property;
• Title to the Property is in Fry’s name for convenience only;
• The monthly mortgage payments were $1,217.25;
• The parties were never married but “we did have three children and we purchased the Property at a time when we were in a romantic, although non-traditional, relationship”;
• At the time that the Property was purchased the parties agreed that:

o “we were both equal beneficial owners and that we would, on that basis, share in the Property expenses and profits”;
o “we would have equal right to live at the Property”;
o “we would, one day transfer the Property to our children”;

• The above agreement was not reduced to writing;
• “Between 1993 and 2004, I occupied the Property with [Fry] and our three children… In 1997 the relationship between me and [Fry] started deteriorating and so after that time until 2004 I occupied the Property less frequently. However I continued to have access to the Property and I entered as I wished without resistance from [Fry].…”
• Kantor has “detailed banking and other records” which shows that, over the period between 1993 and 2004, he advanced to Fry or paid over $100,000.00 towards expenses on the Property;
• Throughout the period between 1993 and 2004, Kantor “…rented live-work studio facilities in both Toronto and Montreal, in addition to occupying the Property”;
• “I have retained detailed and voluminous records including bank statements, cancelled cheques, notes made over the years and other documentation that set out all of the money I have paid towards the Property expenses which I will include in a further affidavit as soon as I can”.

9The alleged agreement referenced above was oral, not written.

10A motion to discharge the CPL was heard on December 10, 2014.

11Fry’s affidavit, sworn December 6, 2014, states:

• “[Kantor] claims that he occupied the Property between 1993 and 2004 with the defendant and their three children. This is untrue. They were romantically involved only between approximately 1989 and 1996. During the period 1993-1996, the plaintiff on average visited the Property roughly one week out of every month, as he was maintaining his own apartment and led an independent life as a “performance artist” in Montreal. Following the end of the relationship, I evicted the applicant and changed the locks to the Property”;
• “[Kantor’s] evidence that he possessed access to key to the Property between 1993 and 2006 is misleading as he did not possess his own keys to the Property after 1996. When I was away from the Property and [Kantor] attended on occasion to babysit the children, he would have temporary access to my second set of keys for the limited purpose of staying with the children”;
• “Not mentioned in the [Kantor] materials is the fact that in approximately 2002 the police were called to forcibly remove him from the Property when he came for a visit and refused to leave claiming a “right” to remain”;
• “[Kantor] states that he continued to have access to the Property after 2004 and that he entered as he wished without resistance from [Fry]. This is false and misleading. Subsequent to being removed from the house by police in 2002, [Kantor] came to the house on occasion to visit the children as an invited guest only. He had no right to enter the home as he pleased after 1996”;
• “It is untrue that the three children lived with the plaintiff at his other premises; the children and the defendant visited him a few times per year during the relationship and the children would visit the Montreal studio as they were older very occasionally and the Toronto studio occasionally; it is likewise misleading that she would occupy his studio with him in Montreal and Toronto between 1993 and 1997; she merely visited these very occasionally”;

12In reply, Kantor filed a further affidavit, sworn December 9, 2014, which states:

• “Ms. Fry and I are joint owners of 115 Gore Vale Avenue, Toronto…When we bought the Property in 1993 and in all our discussions over the years we talked about the Property in terms of us being joint owners. In other words, together and equally responsible to maintain the Property and equally entitled to share in the benefits of ownership”;
• “…we always talked about and agreed that the Property would one day go to our three children”;
• “The $5,000 I paid at the time of purchase of the Property was not a loan to Ms. Fry. It was paid pursuant to our agreement that we were joint owners of the Property”;
• “As mentioned in my Previous Affidavit, I have documentation that will prove what monies I have paid towards the Property including all my bank statements from 1992-2004, all cancelled cheques for that period, notes I made over the years that speak to our relationship, our children, where we lived, how we lived, photographs, video tapes, etc. I keep virtually every document I come across as part of an art project involving building an archive of my life experiences”;
• “The issue of my paying child support has no relevance to this matter. Ms. Fry took me to Court on Jarvis Street, Toronto some years ago. I never saw or spoke to any lawyer or pleaded before a judge. As I recall, someone asked me to sign a document saying that I would pay Ms. Fry $300.00 per month. I had little experience in family court then and, since I was already paying Ms. Fry money as outlined in my previous affidavit, I simply signed the document”;
• “…I came to the realization that there simply should not be any obligation on me to pay child support since, as I have said, Ms. Fry and I looked after the children and paid child related expenses equally. Since Ms. Fry would not agree, I stopped making child support payments in November 2002 to force the issue. I then went to Court to have the child support Order stopped. The Court terminated the support based on the evidence and finding that Ms. Fry and I were sharing custody and parenting of the children on an equal basis”;
• “From 1989 to 1996 we lived together as a family. As I stated in my previous affidavit, I would call our relationship and family arrangement non-traditional, but I cannot. Particularly, from 1993 we all lived at the Property on a full-time basis travelling regularly, always together, to Montreal to stay in my studio. It is utter nonsense and a fabrication that Ms. Fry’s affidavit states at paragraph 4 that I “…visited the Property roughly one week out of every month”. Either she is content to lie or her she signed the affidavit without reading it”;
• “In 1996, our relationship deteriorated. Ms. Fry asked me to stay at my Toronto studio for two weeks. That was how things began to change. For years after that, I would go back and forth from my studio to the Property. Ms. Fry would often ask me to return to live full time at the Property and there was an ongoing change, in where I, so to speak, resided. There was never a, so called, “end” to our relationship. I would say it simply changed. The romantic nature of our relationship dissipated but we continued to have a relationship both as parents to our children and as friends. As I mention, we cooperated very well as regards our children sharing equally in their upbringing”;
• “It is more nonsense for Ms. Fry to say in paragraph 4 of her affidavit that she evicted me from the Property. That simply did not happen”;
• “As I outlined in my Previous Affidavit, between 1997 and 2004, I spent many nights at the Property. Ms. Fry and I continued to have a good relationship and there was no issue ever taken with my continuing to reside there on occasion. There would always be a key left for me either under a flower pot, under shoes, under some other object or underneath the cushion of a couch left on the porch. I stayed at the Property often when Ms. Fry wanted to absent herself from the city for extended periods of time. I was not a “babysitter” as Ms. Fry attempts to portray”;
• “After 1997 when the relationship between me and Ms. Fry deteriorated, we continued to look after our children equally. The children lived with me and they lived with Ms. Fry on an equal basis…”;
• “Ms. Fry is attacking my credibility in her affidavit without responding to the substance of my claim. Ms. Fry characterizes me as a violent person with mental health issues. She points to newspaper articles and inaccurately describes my art in an attempt to portray me in a negative light…”;
• “I was, until now, prepared to treat this matter fairly casually and generously towards Ms. Fry. However, reading Ms. Fry’s affidavit and being for the first time confronted with such a complete denial of my interest in the Property and a failure to recognize our agreement to pass the Property to our children, I am prepared to litigate in an effort to secure what I believe is mine. My goal is to get our children a share in the Property as we agreed but, since Ms. Fry is seemingly not cooperating, I am forced to seek my full share so that my children can get theirs.”¹

[Emphasis in original.]

13Justice Whitaker discharged the CPL; however, he required that one-half of the proceeds of sale be held in trust pending the outcome of this proceeding. The following endorsement was made:

The applicant obtained a CPL on an ex parte motion on December 2, 2014. The applicant seeks to continue the CPL and the respondent seeks a discharge of the certificate. I am not satisfied that the applicant has failed to make frank and full material disclosure. I am also not persuaded on the grounds addressed by counsel that the disclosure has been demonstrably false and misleading. The references made that go to the applicant’s character was of no relevance. I am also of the view that the appropriate action here is the one provided by counsel in the action. I order the remedy on an interim basis as set out in paragraph 4 of the factum of the moving party with the proceeds of sale to remain in counsel’s trust account. The parties addressed costs. Mr. Kantor is entitled to his costs inclusive of taxes and disbursements fixed at $8,000.00. Order accordingly. [Emphasis added.]

14Justice Whitaker’s Order states that:

1. THIS COURT ORDERS that the said December 3, 2014 Certificate of Pending Litigation be discharged;

2. THIS COURT ORDERS that 50% of the net proceeds of the sale of 115 Gore Vale Avenue, Toronto be placed and remain in the trust account of Ferriera Bettencourt LLP subject to further order of this Court;

3. THIS COURT ORDERS that costs are payable by the moving party (respondent) to the respondent (applicant) in the amount of $8,000.00 inclusive of HST and disbursements.

15Subsequently, Fry discovered affidavits and other documents sworn by Kantor in 2004 which contradict the affidavit evidence that was before this Court at the time that the CPL was made on December 3, 2014, and when it was discharged, with terms, on December 10, 2014.

16Fry asks this Court to vary the Order, made on December 10, 2014, to release all of the proceeds of sale of the Property to her. She also asks that this Claim be dismissed under Rule 21.01(3)(d) on the basis that it is an abuse of this Court’s process.

ISSUE #1: SHOULD THIS COURT’S ORDER, DATED DECEMBER 10, 2014, BE VARIED TO RELEASE ALL PROCEEDS OF SALE OF THE PROPERTY TO FRY?

17Rule 59.06(2)(a) of the Rules of Civil Procedure states:

A party who seeks to … have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made … may make a motion in the proceeding for the relief claimed. [Emphasis added.]

18The test for whether to set aside or vary an Order under Rule 59.06(2)(a) of the Rules of Civil Procedure is as follows:

1. Would the evidence, if presented at the motion, probably have changed the result?
2. Could the evidence have been obtained before the motion was heard by the exercise of reasonable diligence?²

Would the evidence probably have changed the result?

19Fry submits that Kantor failed to place before the Court on December 3, 2014, and on December 10, 2014, his sworn statements from 2004 in an earlier proceeding between the parties which indicated that: (1) Kantor did not own any land; (2) the total value of all of Kantor’s assets was $5,000.00; (3) Fry owned and occupied the subject property; (4) Kantor did not live in the subject property; (5) Fry earned rental income from the subject property; (6) Kantor did not complain that he was being deprived of the enjoyment of the occupation of the subject property or rental income from the subject property.

20Fry relies upon Rule 39.01(6) which states:

Where a motion or application is made without notice, the moving party or applicant shall make full and fair disclosure of all material facts, and failure to do so is in itself sufficient ground for setting aside any order obtained on the motion or application.

21In order to ensure the proper administration of justice, there is a heavy burden on a party seeking relief on an ex parte basis to make full and frank disclosure of all material facts. A failure to do so itself is sufficient grounds to set aside the Order obtained. The party challenging the Order need not show that the hidden material facts would have changed the outcome of the ex parte motion.³

22On this motion Fry has filed the following affidavit evidence that was not before the Court on December 3, 2014 and December 10, 2014:

o Affidavit of Krista Fry, sworn December 10, 2002, for purposes of filing with the Court the parties’ Paternity Agreement dated March 1, 1997 for purposes of its enforcement;
o Affidavit of Istvan Kantor, sworn June 24, 2004;
o Change of Information Form, Istvan Kantor, July 9, 2004;
o Notion of Motion to terminate child support and arrears, July 9, 2004;
o Affidavit of Istvan Kantor, July 9, 2004
o Financial Statement of Istvan Kantor, July 9, 2004;

23As is evident from its endorsement on December 10, 2014, the Court turned its mind to the issue of whether Kantor had made full and frank disclosure. However, the Court did not have the above noted materials.

24Kantor swore statements on July 9, 2004, for purposes of his motion of the same date in the Ontario Court of Justice (Court File D11701/02) to terminate his child support payments ($300.00 per month in total for all three children) to Fry and to rescind his child support arrears that had accumulated since January 2003 ($5,500.00 owed as of June 24, 2004). Fry submits that the following parts of those July 9, 2004, sworn statements are contrary to the affidavit evidence filed by Kantor in respect of the motions heard on December 3, 2014 and December 10, 2014:

• Kantor’s sworn affidavit dated July 9, 2004 states: “I also note that the recipient was on welfare when we signed the child support agreement but for the past 5 years she has a full time job, she receives monthly support for the children from the government and she rents out two rooms in her own house. Her financial situation is much better than it was at the time of our agreement. And it’s much better than my present financial situation.” [Emphasis added.]

• Kantor’s sworn financial statement dated July 9, 2004 states the total value of all property is $5,000 comprised of an automobile, household furniture, electronics and art equipment. He left blank the question that asks for the particulars of any land that he owns and the percentage of his interest in the ownership of that land. He also stated that the total value of all other property was “$0”. [Emphasis added.]

25Paragraphs 6-11 of Kantor’s affidavit, sworn September 17, 2015, explains the above statements as follows:

I have very little recollection of the process involved in my going to court to terminate child support. I do recall going to the court on Jarvis Street in Toronto and preparing some forms that I was told were necessary.

I basically took the forms and quickly filled them in as best I could mostly at a table in the court building. I had no lawyer or legal advice from anyone. There may have been a government lawyer in the courtroom at some point but I don’t recall having any discussion with them.

I did not keep copies of any of these court forms. I see them now for the first time after many years as part of the Defendant’s Motion Record.

My lawyer has specifically shown me the Financial Statement document at tab J, page 145, and asked me about Part 7: Property/Land being left blank. My honest answer is that I do not recall.

I can say, however, that I would have left that section blank. I do not own land in the sense that there is no land registered in my name. Perhaps, had I had more time to prepare the court documents or if I had a lawyer to clearly explain things to me, I may have added more detail to explain that Ms. Fry and I owned the Property together but that she was the one that lived there and enjoyed the benefits of ownership.

I am not attempting to mislead anyone and I was not attempting to mislead either Ms. Fry or the court at the time of my application to terminate support. I wanted the court to know my financial position. I wanted the court also to know that Ms. Fry had all the advantages associated with the Property. She lived there. She was not paying rent. I know now she was also collecting rent from a tenant. I, on the other hand, had rent to pay since I was not living at the Property. [Emphasis added.]

26At least a few statements made by Kantor in his latest affidavit, sworn September 17, 2015, are contradicted by his earlier Affidavit, sworn July 9, 2004:

• Kantor now states that he “took the forms and quickly filled them in” at a table in the court building. He also states if he had “more time to prepare the court documents” that he might have mentioned that he owned half of the Property. However, although his Financial Statement of July 9, 2004 is handwritten, his affidavit of the same date is typewritten and sixteen paragraphs long with plenty of detail.

• Kantor now states “I know now that [Fry] was also collecting rent from a tenant”. However, this statement is contradicted by his earlier affidavit which states, at paragraph 13, that Fry “rents out two rooms in her own house”.

• Kantor now states “I wanted the court to know that Ms. Fry had all the advantages associated with the Property. She lived there. She was not paying rent…I, on the other hand, had rent to pay since I was not living at the Property.” However, Kantor in his earlier affidavit did not protest or even mention that Fry lived at the Property without paying rent.

27Kantor’s latest affidavit, sworn September 17, 2015, which tries to explain his earlier prejudicial statements, is a transparent attempt at historical revisionism that undermines his credibility with respect to the affidavits that he has filed in this proceeding. Further, if Kantor believed that he had an ownership interest in the Property in 2004, then his sworn statements at the time – made in an attempt to justify why he should not have to pay child support – would have asserted that he was being deprived of his interest in the ownership of the Property by being deprived from its occupation and of the rental income generated from the Property. He did not make those statements.

28Further, Kantor states in his affidavit sworn December 9, 2014:

I do not clearly recall why we had Ms. Fry go on title alone. Presently I remember that there would have been a further cost for me to go in title, and that I was unable to afford this additional cost at the time.…

29Ben Martin’s affidavit, sworn January 6, 2015, dispels Kantor’s recollection. He states:

Based upon my review of the 115 Gore Vale file, the only reference to an Istvan Kantor is a cheque bearing the name of Istvan Kantor dated April 8, 1993 payable to “Countrywide Westside Realty…In Trust” for $5,000.

I have been asked by Mr. Seibert whether I would have charged a further cost if someone other than Ms. Fry wanted to go on title at 115 Gore Vale Avenue in 1993. I can advise that I would not have charged additional legal fees for a second person being registered on title.

30In my view, had the Court been provided with Kantor’s sworn statements from 2004, described above, at the hearing of the motion on December 10, 2014, then such evidence would have probably changed the result of the motion given: 1) the materiality of that evidence; 2) that the evidence was not provided to the Court by Kantor at the ex parte hearing on December 3, 2014; and 3) the application of Rule 39.01(6) of the Rules of Civil Procedure.

Could the evidence have been obtained by Fry before the motion was heard on December 10, 2014 by the exercise of reasonable diligence?

31Fry submits that she received notice of the Application and the Order dated December 3, 2014, less than 4 business days before the December 10, 2014, returnable date for the motion. Fry submits that she was unable to retrieve Kantor’s 2004 affidavit evidence from the court prior to December 10, 2014.

32The affidavit of Peter D. Woloshyn, sworn July 19, 2015, states that Mr. Seibert, counsel for Fry, requested that his process servers identify previous proceedings between the parties shortly after he was retained. He further states that the process servers advised him that a family law proceeding involving the parties was before the Ontario Court of Justice between 2002 and 2006 in Toronto. Mr. Woloshyn inspected the entire court file on February 4, 2015.

33Further, the affidavit of Ben Martin, sworn January 6, 2015, required him to retrieve and familiarize himself with his file related to the purchase of the Property some 22 years earlier. Again, his affidavit evidence could not have been obtained exercising reasonable diligence prior to the motion heard on December 10, 2013.

34In my view, the materials appended to the affidavit sworn by Peter D. Woloshyn on July 10, 2015, and in particular the sworn statements made by Kantor in 2004 related to his child support motion, could not have reasonably been obtained by Fry on short notice in the few days available before the motion that was heard on December 10, 2014.

Conclusion

35In my view, the requirements of Rule 59.06(2)(a) of the Rules of Civil Procedure have been satisfied. Given my findings, it is my view that the relief granted in respect of the motion heard on December 10, 2014 should be varied.

36The Order, dated December 10, 2014, shall be varied by deleting paragraphs 2 and 3 and replacing them with the following paragraphs:

2. THIS COURT ORDERS that the net proceeds from the sale of the Property that are held in trust by Ferriera Bettencourt LLP shall be paid to Fry forthwith.

3. THIS COURT ORDERS that costs are payable by Kantor to Fry in the amount of $8,000.00 inclusive of HST and disbursements.

ISSUE #2: IS THE PLAINTIFF’S ACTION FRIVOLOUS, VEXATIOUS OR OTHERWISE AN ABUSE OF THE COURT’S PROCESS?

37Fry submits that Kantor’s claim should be dismissed pursuant to Rule 21.01(3)(d) of the Rules of Civil Procedure on the basis that it is an abuse of process for the following reasons:

• His claim is statute barred pursuant to section 4 of the Real Property Limitations Act;
• Alternatively, the plaintiff’s claim is barred by the doctrine of laches and/or acquiescence;
• The claim is an abuse of process because the plaintiff’s evidence on this motion contradicts evidence that he gave in an earlier proceeding many years ago;

38Rule 21.01(3)(d) states:

A defendant may move before a judge to have an action stayed or dismissed on the ground that…the action is frivolous or vexatious or is otherwise an abuse of the process of the court, and the judge may make an order or grant judgment accordingly.

39Evidence is permissible on a motion under Rule 21.01(3)(d), although the facts must be uncontroverted or easily ascertainable, and the motion may not be used to resolve a factual dispute or to circumvent the requirements of the summary judgment rules.⁴

40In Salasel v. Cuthbertson, 2015 ONCA 115, 124 O.R. (3d) 401, the Ontario Court of Appeal stated that a court may invoke its inherent jurisdiction or its authority under Rule 21.01(3)(d) to dismiss or stay an action that represents a clear case of abuse of process. It stated, at para. 8, that:

Rule 21.01(3)(d) of the Rules of Civil Procedure permits a defendant to move to stay or dismiss an action on the ground that "the action is frivolous or vexatious or is otherwise an abuse of the process of the court". Any action for which there is clearly no merit may qualify for classification as frivolous, vexatious or an abuse of process, with a common example being the situation where a plaintiff seeks to re-litigate a cause which has already been decided by a court of competent jurisdiction. A court only invokes its authority under rule 21.01(3)(d) or pursuant to its inherent jurisdiction to dismiss or stay an action in the clearest of cases: Currie v. Halton Regional Police Services Board (2003), 2003 7815 (ON CA), 233 D.L.R. (4th) 657 (Ont. C.A.), at paras. 17 and 18. [emphasis added]

41However, the Defendant did not provide any case law precedent that support the use of Rule 21.01(3)(d) to stay or dismiss a claim on the basis of an expired limitation period. While Rule 21.01(3)(d) was not specifically addressed, it is doubtful that such authority exists given that in Beardsley v. Ontario Provincial Police (2001), 2001 8621 (ON CA), 57 O.R. (3d) 1 (C.A.) the Ontario Court of Appeal stated, at para. 21, that:

The motion to strike based on the expiry of a limitation period could only be made pursuant to Rule 21.01(1)(a), which provides that a party may move for the determination of a question of law “raised by a pleading”. [Emphasis added.]

42In my view, where the determination of whether a claim is defeated by a limitation period turns on disputed facts, the better approach is a motion for a summary judgment using the tools that Rule 20.04 of the Rules of Civil Procedure provides to resolve disputed facts.

43In Boutin v. Co-operators Life Insurance Co. (1999), 1999 2071 (ON CA), 42 O.R. (3d) 612 (C.A.), the Ontario Court of Appeal stated, at paras. 19-22:

To understand the scope of Rule 21, it is important to take into account the difference among Rules 20, 21 and 22, all of which seek to shorten or eliminate trials and thus reduce the cost of litigation. These rules are clearly related in their function, but they are not randomly interchangeable.

On a motion under Rule 20 the motions judge must determine that there is or is not a genuine issue for trial: see Irving Ungerman Ltd. v. Galanis (1991), 1991 7275 (ON CA), 4 O.R. (3d) 545 (C.A.). That determination is based on the evidence filed on the motion. It is not based on the pleadings, apart from any admissions in the pleadings. Thus, a party responding to a summary judgment motion cannot sit back and rely on the pleadings. See 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), 1995 1686 (ON CA), 21 O.R. (3d) 547 (C.A.). Because of the provisions of Rule 20.04(4), if the only genuine issue for trial is a question of law, the motions judge may determine the question of law and grant judgment accordingly. Rule 20.04(4) provides that this will be done only where there are no facts in dispute which may give rise to a genuine issue for trial.

Motions under Rule 21 and 22 are different from summary judgment motions under Rule 20. Motions under Rules 21 and 22 focus on questions of law raised by the pleadings (Rule 21.01(1)(a)), or stated by agreement of the parties (Rule 22.01(1)). A Rule 22 motion brought by the agreement of the parties will, as a result of the provisions of Rule 22.04(a), be accompanied by an agreed statement of fact to the extent that facts are necessary "to enable the court to determine the question stated." Rule 21.01(2) provides that there be no evidence on a motion under Rule 21.01(1)(a) "except with leave of a judge or on consent of the parties." Since Rule 21.01(1)(a) requires that the question of law be raised by the pleadings there will generally be no need for evidence on a Rule 21.01(1)(a) motion. It seems clear to me that it was for this reason that the drafters of the Rules provided that there should be no evidence on a motion under Rule 21.01(1)(a), except for cases in which leave is granted or there is consent.

I do not think that the issue whether the policy limitation period is a bar to the appellant's action is a question of law that should have been resolved on a Rule 21.01(1)(a) motion. As the motions judge's endorsement indicates, the application of the limitation period in this case depends upon findings of fact for its resolution. This is also apparent from the appellant's reply to the respondent's statement of defence. In my opinion, whether the respondent is entitled to rely on the limitation period in the policy has a significant factual component and is thus a matter which should be addressed at trial, not on a Rule 21.01(1)(a) motion. [emphasis added]

44Finally, in Greatrek Trust S.A./Inc. v. Aurelian Resources Inc., 2009 6095 (ON SC), [2009] O.J. No. 611, Justice D.M. Brown (as he then was) stated, at para. 19:

Further, an unhealthy devotion to Rule 21 motions exists at the present time in the Toronto Region. Too many parties regard Rule 21 motions as abbreviated surrogates for motions for summary judgment. Rule 21 motions are not even close cousins to motions for summary judgment. Summary judgment motions permit courts to review evidence in order to test the merits of a case - albeit a limited form of testing at present, but more robust testing will occur with the implementation of the improved Rule 20 on January 1, 2010: O. Reg 438/08. Rule 21 motions, by contrast, "focus on questions of law raised by the pleadings": Boutin v. Co-operators Life Insurance Co. (1999), 1999 2071 (ON CA), 42 O.R. (3d) 612 (C.A.), para. 21. As Osborne J.A. noted in Boutin, in most cases the application of a limitation period "depends upon findings of fact for its resolution": para. 22. Evidence-based motions offer the more appropriate procedure by which to deal with the applicability of limitation defences. [Emphasis added.]

45Given the extensive evidentiary record that has been filed with this Court, and given the need for timely and affordable access to civil justice, I exercise my inherent jurisdiction to require that the Defendant’s motion under Rule 21.01(3)(d) also be heard under Rule 20 of the Rules of Civil Procedure.

46Supplementary affidavit evidence, if any, shall be exchanged and filed within 21 days of the date of this decision. Cross-examination, if any, on any affidavits that have been filed with the Court, shall be completed within 45 days of the date of this decision. Additional written submissions to a maximum length of 15 pages as well as any transcripts from the cross-examinations shall be served and filed by the parties with this Court within 60 days of the date of this decision. Additional written reply submission to a maximum of length of 10 pages, if any, and an updated outline of costs shall be served and filed by the parties with this Court within 70 days of the date of this decision. No oral submissions are required; however, if either party advises within 30 days of the date of this decision that it would like to make oral submissions, then 45 minutes for each party will be allowed and a hearing will be held within 75 days of the date of this decision.

CONCLUSIONS

47The defendant’s motion to vary this Court’s Order dated December 10, 2014 is granted. The Order, dated December 10, 2014, shall be varied by deleting paragraphs 2 and 3 and replacing them with the following paragraphs:

2. THIS COURT ORDERS that the net proceeds from the sale of the Property that are held in trust by Ferriera Bettencourt LLP shall be paid to Fry forthwith.

3. THIS COURT ORDERS that costs are payable by Kantor to Fry in the amount of $8,000.00 inclusive of HST and disbursements.

48The motion to dismiss this action as frivolous, vexatious or an abuse of process under Rule 21.01(3)(d) of the Rules of Civil Procedure is adjourned so that the relief sought can also be considered on the basis of a motion for summary judgment under Rule 20 of the Rules of Civil Procedure. I remain seized of this motion.

Mr. Justice M. D. Faieta

Released: November 10, 2015

COURT FILE NO.: CV-14-516770
DATE: 20151110

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

ISTVAN KANTOR
Plaintiff

– and –

KRISTA FRY
Defendant

REASONS FOR DECISION

Mr. Justice M. D. Faieta

Released: November 10, 2015

Footnotes

1. 1Although it is not material to the outcome of this motion I note the following letter signed by Kantor’s and Fry’s three children in April 2015: “…We wish to make clear that we do not support any litigation brought against our mother. We also wish to make clear that we are competent adults who do not require the protection of Istvan in relation [to] any claim against our mother’s home, and do not want any litigation brought by him to recover money on our behalf.” See Appendix Q to the Affidavit of Peter D. Woloshyn, sworn July 10, 2015.
2. 2671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, [2001] 2 S.C.R. 983, at paras. 18, 59, 65.
3. 3Fox v. Fox, 2014 ONSC 1135, [2014] O.J. No. 948 (Div. Ct.), at paras. 11‑16.
4. 4Paul M. Perell and John W. Morden, The Law of Civil Procedure in Ontario, 2nd ed. (Toronto:LexisNexis Canada Inc., 2014), at p. 534.