Court File and Parties
Court File No.: C-3276-14 Date: 2016-09-16 Superior Court of Justice - Ontario
Re: Marie Leblanc, Plaintiff And: Jonathan A. Glass and Civita Vitiello, Defendants
Before: The Honourable Madam Justice Patricia C. Hennessy
Counsel: Brendan Clancy, for the Plaintiff/Responding Party Gary Marcuccio, for the Defendant Civita Vitiello/Moving Party
Heard: May 20, 2016
Endorsement
1This is a motion for summary judgment pursuant to r. 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, brought by the defendant Civita Vitiello on the basis that the claim was brought two years past the expiration of the limitation period. The central issue is discoverability; when did the plaintiff discover that she had a claim against Civita Vitiello.
The Claim and the Allegations
2The plaintiff alleges conspiracy, assisting in a breach of trust, knowingly receiving trust funds in breach of trust, conversion and unjust enrichment in the amount of $10 million dollars. The defendants are Civita Vitiello and Marie Leblanc’s son, Jonathan A. Glass, who has not defended this action.
3The plaintiff, Marie Leblanc, claims that her estranged husband John Glass and Civita Vitiello conspired together to deprive her of 11 properties while she was ill from 1992 to 2000. Two of these properties are known as the Lorne Street property and the Beattie Street property. Marie Leblanc alleges that the 11 properties were matrimonial property and that the defendant Civita Vitiello acted as a knowing intermediary for the purposes of allowing John Glass to sell properties he was barred from selling. Civita Vitiello denies this involvement, claiming that she only gained an interest in the Beatty Street and Lorne Street properties through foreclosure applications.
4When Marie Leblanc became ill, she transferred funds and some property to John Glass. Then, in 2001, Marie Leblanc commenced divorced proceedings against her estranged husband and an action against her former solicitor Claude MacMillan for misappropriation and breach of trust, having discovered that they had depleted her assets. Jonathan A. Glass was also a plaintiff in that action because one of the properties that was allegedly misappropriated was to be held in trust for him until he reached a certain age.
5The breach of trust claim against Claude MacMillan was dismissed for delay. John Glass died in 2009.
6Marie Leblanc alleges that in February 2014 her son Jonathan A. Glass admitted to her that he was a beneficiary of the funds and that the defendant Civita Vitiello had conspired with John Glass to deprive Marie Leblanc of her assets. The within action is based on this disclosure. The statement of claim was issued on May 16, 2014.
The Motion for Summary Judgment
7Civita Vitiello asserts that Marie Leblanc had enough information to bring this action by December 2010 at the latest and therefore the limitation period would have expired in December 2012. Marie Leblanc has been represented by counsel since at least 2001 in relation to her allegations against John Glass. In response, Marie Leblanc submits that the evidence of the conspiracy was only discovered and discoverable in February 2014 and that this issue of discoverability should only be decided on a full evidentiary record at trial.
8The defendant seeks summary judgment on the following grounds:
a. The claim was commenced outside the limitation period – i.e. the evidence or information on which the claim was based was discoverable more than two years before the claim was brought. b. There is no genuine issue requiring a trial.
Issues
9In order to determine the issue of discoverability, the following questions must be addressed. The answers will come from the pleadings, the productions or the examinations:
a. What did Jonathan A. Glass tell Marie Leblanc? What did Marie Leblanc discover in Feb 2014? b. What did Jonathan A. Glass disclose that Marie Leblanc did not already know or could have known? c. Did the contents of Jonathan A. Glass’ disclosure amount to evidence of fraud, conspiracy or breach of trust against Civita Vitiello?
Position of the Parties
Moving Party
10The moving party makes two submissions on the issue of discoverability. First, Marie Leblanc knew the facts on which she now relies in 2010. Second, whatever was disclosed to Marie Leblanc by her son was not new and is not evidence sufficient to found a claim. They submit that although the claim lists many properties that were the subject of conspiracy and improper disposition, Jonathan A. Glass stated in his examination that the only evidence he is aware of as to the alleged conspiracy was the acquisition by Civita Vitiello of the Lorne Street and Beatty Street properties. (Leblanc v. Glass, 2016 ONSC 5718) (Examination for Discovery, at p. 108, Q. 559). Jonathan A. Glass confirmed on examination that he had no information that Civita Vitiello acquired any property belonging to the plaintiff other than these two properties.
11Jonathan A. Glass described his disclosure during examination as remarks made by him in response to accusatory statements made to him by Marie Leblanc; that he simply replied with his belief as to Civita Vitiello’s involvement with the Beatty Street and Lorne Street properties.
12Essentially, Jonathan A. Glass confirmed that he told Marie Leblanc that his father, John Glass “put everything under Ms. Vitiello’s name to keep it from my mother.” Jonathan A. Glass said that this information came to him from David Yam the executor of his father’s will. Jonathan A. Glass also indicated that he told his mother that Claude MacMillan had done all of the documents for the transfers.
13I accept this evidence which was not denied or contradicted. Therefore at best, Jonathan A. Glass could have only disclosed his belief about the disposition of the Lorne Street and Beatty Street properties.
14The moving party argues that Marie Leblanc has alleged this scheme in the past, many years before the action was brought. In support of this submission, Civita Vitiello relies on statements made by Marie Leblanc during an examination in another action to demonstrate that Marie Leblanc stated that she knew that Civita Vitiello was involved with John Glass in stealing her properties. On December 17, 2010, Marie Leblanc referred to Civita Vitiello by name and said:
“So they have a history of stealing from me, them two, so and we’re going to get, you know, what’s relevant to Lorne Street property that Civita, whatever her name is, Vitiello, helped my former husband to steal it from me as well.”
Responding Party
15The responding party argues that claims for conspiracy are inherently difficult to discover and that the limitation period does not begin to run until the plaintiff is able to confirm her suspicions as to the defendant’s involvement in the conspiracy. They rely on Central-Epicure for the proposition that mere suspicions are not the equivalent of actual knowledge and therefore not enough to trigger the limitation period. (Central-Epicure Food Products Ltd. v. Weinburg, 2015 ONSC 5539, at para. 20, Miletic v. Jaksic, 2014 ONSC 5043, 4 E.T.R. (4th) 225, at para. 92)
16Marie Leblanc asserts that her son told her that Mr. MacMillan took steps to conceal the fraud by eliminating the paper trail pertaining to the misappropriation of Marie Leblanc’s funds. They argue that in Miletic the court refused to find that the claim was brought outside the limitation period when the party to the fraud concealed the info from the plaintiff. (paras. 99-101) The defendants assert that the conduct of Jonathan A. Glass similarly concealed the truth from her.
17Marie Leblanc argues that for the purposes of discoverability, the issue is not whether Jonathan A. Glass’ statements are credible or true, but rather whether such statements were made. She submits that as a result of this disclosure what had been merely suspicions of a conspiracy, were confirmed February 2014. She submits that the claim against Civita Vitiello was only discoverable when she heard her son make statements about Civita Vitiello’s involvement in the conspiracy. Marie Leblanc states that as a result of this conversation with her son, she “learned” of Civita Vitiello’s involvement. In any event, Marie Leblanc takes the position that the discoverability of the cause of action is a genuine issue requiring a trial.
Discussion
General Principles
18The interrelation between discoverability and limitation periods is concisely set out in paras. 17 and 18 of Munas v. Dhanani, 2015 ONSC 5443, 127 O.R. (3d) 457:
The discoverability rule in section 5 of the Act has the effect of delaying the running of the limitation period until the point at which the plaintiff discovers he has a claim or ought to have discovered he has a claim, with the exercise of reasonable diligence. There is a statutory presumption that the plaintiff knows he has a claim on the day of the incident. This presumption may be rebutted by the plaintiff.
In order to rebut the statutory presumption that the plaintiff knew of the elements of his claim on August 20, 2009, when the accident occurred, the onus is on him to show his claim is not statute-barred and he behaved as a reasonable person in the same or similar circumstances using reasonable diligence in discovering the facts relating to the limitation issue: see Miaskowski (Litigation guardian of) v. Persaud, 2015 ONSC 1654 (Ont. S.C.J.), paras. 66 and 67 and Panther Film Services Inc. v. Fred Tayar and Associates Professional Corp., 2012 ONSC 7226 (Ont. S.C.J.), para. 12.
19Although a party may raise the issue of discoverability, this does not prevent the granting of summary judgment if the plaintiff does not provide the court with evidence that would give rise to a factual issue regarding discoverability. (Fekrta v Siavikis (2008), 76 M.V.R. (5th) 218 (Ont. Sup. Ct) at para. 10)
20Furthermore, in a summary judgment motion, the court is entitled to assume that the parties have advanced their best case and that the record contains all of the evidence the parties will present at trial.
Reasonable Diligence
21The obligation is on the plaintiff is to use reasonable diligence in discovering the material facts in relation to the claim. The limitation period will run once the plaintiff knows the identity of the tortfeasor and that some damage has occurred. (Peixeiro v Haberman, [1997] 3 S.C.R. 549, at para 18) The plaintiff is then required to lead sufficient evidence before the court showing that they exercised this reasonable diligence.
22The claim was brought past the limitation period and/or the plaintiff did not exercise reasonable diligence to discover her claim in the years following 2010.
23In Central-Epicure, the plaintiff brought an action for defamation against a person who made a complaint about her product. In that action, the plaintiff sought to discover a link between the alleged tortfeasor and another party who the plaintiff suspected was also involved in the alleged defamation. After initial attempts, the plaintiff had not successfully obtained information linking the alleged tortfeasor to the subject of her suspicions. However, information which later came to the attention of the plaintiff through a serendipitous reference by a third party provided the link between the known alleged tortfeasor and the unknown but suspected alleged tortfeasor. Soon after, the plaintiff sought to add the discovered alleged tortfeasor as a defendant in the action.
24The Master was of the view that the plaintiff had met the modest burden placed upon it to demonstrate reasonable diligence. The plaintiff began its investigation of this matter immediately after a complaint was made by about its products. The plaintiff pursued the defendant who made the complaint, attempting to obtain phone records and other information. The plaintiff sought evidence to support its suspicion that a competitor was involved with the complaint through cross-examination of the defendant and a subsequent motion. The Master held that although the plaintiff may have had strong suspicions about the competitor from the beginning, mere suspicion did not equal actual knowledge (para. 20). The Master also noted at para. 21 that “discovering the elements of a conspiracy is far more difficult than establishing the identity of an unknown motorist or the possible occupier of a property for example.”
25Marie Leblanc is in a very different position. When she discovered in 2001 that her funds and assets had allegedly been stolen, she brought an action against her former husband and former solicitor. At that time she knew that Civita Vitiello had foreclosed on a number of properties and believed that she was part of the scheme. Marie Leblanc did not make a claim against Civita Vitiello at that time and allowed the action to lapse. Marie Leblanc did not “discover” anything new from her son in December 2014. His disclosure appears to be the equivalent of her previously expressed belief in Civita Vitiello’s involvement in the alleged conspiracy. Furthermore, her son has lived with Marie Leblanc throughout the years and she has had issues with Jonathan A. Glass’s truthfulness in the past. Jonathan A. Glass was supposedly repeating hearsay from someone, who may or may not have had personal knowledge of the allegation. Marie Leblanc does not assert that the person who allegedly passed the info to Jonathan A. Glass had personal knowledge of the facts.
26Whatever suspicion or knowledge Marie Leblanc had in 2010 when she made the allegation that Civita Vitiello had worked with John Glass to steal her properties was not substantiated by her son’s vague disclosure. Marie Leblanc has not explained the basis for her 2010 suspicion and what changed with the 2014 conversation with her son.
27In Miletic, the court found that the cause of action did not begin to run until the plaintiff received a letter and learned that a person he believed was his lawyer was not his lawyer (para. 103). The letter caused Mr. Miletic to consult counsel and as a result, discover the deficiencies in the sale of the business. The court accepted that Mr. Miletic had no knowledge of the deficiencies, i.e. that he did not actually own the business, until the disclosure by letter and the subsequent legal consultation.
28These facts do not help the plaintiff in this case. In Miletic, the letter and legal consultation provided the plaintiff with specific information upon which he could rely to make a claim. In Marie Leblanc’s case, she essentially heard her own suspicions repeated to her by her son, who would have known as a result of his involvement in various related lawsuits that she made these allegations four years prior.
29The plaintiff also relies on Maynes v. Allen-Vanguard Technologies Inc., 2011 ONCA 125, 329 O.A.C. 229, at para. 32, where the Court of Appeal stated that the limitation period does not begin to run until the plaintiff discovers that they have a cause or action or a basis on which to make a claim. In my view, the statements made by Jonathan A. Glass did not add to what Marie Leblanc already believed in 2010.
30Therefore, despite knowing about the alleged loss, identifying two tortfeasors and publically expressing her belief that Civita Vitiello was involved, Marie Leblanc did not add Civita Vitiello to the 2001 lawsuit. She did not set out a single step or thing that she did from the time of her initial but firmly held and expressed suspicions. She has not brought any evidence on this motion to show that she exercised reasonable diligence to satisfy herself that Civita Vitiello was acting together with John Glass to found this new claim brought in 2014. This is significant, considering that Marie Leblanc’s first lawsuit would likely have provided her with opportunities to establish a link between John Glass and Civita Vitiello, similar to the plaintiff in Central Epicure. Additionally, she has failed to show a qualitative difference between the suspicions she held in 2010 and Jonathan A. Glass’ statement in 2014.
31In fact, in December 2010 Marie Leblanc did not express her views as suspicions, but rather made serious allegations with a level of certainty. Therefore, I conclude that what she says she discovered in 2014 to support her claim was no different from what she knew or believed in 2010. If this knowledge was sufficient to found a claim in 2014 it was sufficient in 2010. There is no basis for her to say now that these were simply suspicions.
32The burden of exercising reasonable diligence to discover the facts relating to the limitation issue has not been met.
Conclusion
33In my view the plaintiff has not rebutted the presumption that she discovered her claim or ought to have discovered, with reasonable diligence, her claim by December 2010 at the latest. Nor does the issue of discoverability form a genuine issue requiring a trial.
34The limitation period under s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B applies. There are no special circumstances justifying an extension of the limitation.
35Additionally, I am of the view that there is no genuine issue requiring a trial on the issue of discoverability. I have drawn this conclusion after considering the statement of the Supreme Court of Canada, at para. 49 of Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87.
36I am satisfied that I am able to reach a fair and just determination on the merits of this motion; the facts are not controversial and it is a proportionate way to deal with a limitations issue.
37Consequently, this action brought only in May 2014 is statute barred. The defendant is entitled to summary judgment dismissing the action against her.
38The parties have agreed on costs.
The Honourable Madam Justice Patricia C. Hennessy
Date: September 16, 2016