Court File and Parties
Court File No.: CV-10-416835-00A1 Date: 2017-05-17 Superior Court of Justice - Ontario
Re: Mega International Commercial Bank (Canada), Plaintiff And: Tony Man Tung Yung (also known as Man Tung Yung) and Yvonne Pui Ling Lai, Defendants And: Jimmy K. Sun and Sun Partners, Third Parties
Before: L. A. Pattillo J.
Counsel: M. Scott Martin, for the Moving Parties/Third Parties Christopher Stanek, for the Respondents/Defendants
Heard: February 9, 2017
Endorsement
Introduction
[1] This is a motion for summary judgment by the Third Parties, Jimmy K. Sun (“Sun”) and Sun & Partners (the “Firm”) dismissing the defendants Tony Man Tung Yung (also known as Man Tung Yung) (“Yung”) and Yvonne Pui Ling Lai’s (“Lai”) Third Party Claim against them for contribution and indemnity on the ground that the limitation period for commencing the Third Party Claim as set out in the Limitations Act, 2002, S.O. 2002, c. 24, Schedule B (the “Act”) has expired.
[2] For the reasons that follow, I allow Sun and the Firm’s motion and dismiss the Third Party Claim. Based on the material filed, I am satisfied that the Third Party Claim can be determined by way of summary judgment. Section 18 of the Act sets out an absolute two year limitation period in respect of Yung and Lai’s Third Party Claim which begins to run from the time the defendants were served with the Statement of Claim in the action. As both Lai and Yung were served with the Statement of Claim more than two years before the Third Party Claim was commenced, the Third Party Claim was commenced after the limitation period had expired and cannot succeed.
[3] I am also of the view, based on the facts which I accept, that the doctrine of fraudulent concealment is not applicable and accordingly, it does not operate to extend the limitation period for the Third Party Claim to defeat Sun and the Firm’s limitation defence.
The Facts
[4] On December 20, 2010, the plaintiff, Mega International Commercial Bank (Canada) (the “Bank”) commenced this action against the defendants Tony Man Tung Yung (also known as Man Tung Yung) (“Yung”) and Yvonne Pui Ling Lai (“Lai”) (the “Action”). The Statement of Claim alleges that both Yung and Lai guaranteed a mortgage held by the Bank on property in Toronto (the “Property”). The mortgage went into default in July 2008 and the Bank subsequently sold the Property on January 15, 2010. After factoring in the sale proceeds, expenses and costs, there remained an amount of $1,216,101.78 owing on the mortgage. The Bank’s claim is for the shortfall pursuant to the guarantees.
[5] Yung is an experienced property developer in Hong Kong and China. He resides in Hong Kong and speaks no English. Yung resided in Canada from 1991 to 1995. The Property was his first and only development in Canada.
[6] Yung and Lai are husband and wife. They have been separated since 1998. Lai lives exclusively in Toronto. Lai has no experience in property development and deposes that at all material times she relied on Yung’s instructions.
[7] Sun is a lawyer licensed to practice in Ontario and is the principal of the Firm.
[8] The Property is a 13 story mixed use, commercial and residential building complex at 207-209 Yonge Street in Toronto. It was developed by Yung between 1993 and 2002. Sun acted for Yung in respect of the development of the Property.
[9] Initially, the Property was financed by Grand Pacific Finance Corp. (“Grand Pacific”) and 366 Madison Inc. (“Madison”). When the Property got into financial difficulties, Yung re-financed it in 2002/03 with a loan from the International Commercial Bank of Cathay (Canada), the predecessor to the Bank (the “2002/03 Loan”), which was secured, in part, by a first mortgage on the Property and personal guarantees from Yung and Lai (the “Guarantees”). The 2002/03 Loan was used in part to reduce the indebtedness owing to Grand Pacific and Madison. Those companies in turn agreed to subordinate their security for their remaining indebtedness to the Bank.
[10] Sun acted for the Bank on the 2002/03 Loan. On February 23, 2003, Yung and Lai executed an acknowledgement and consent to Sun so acting. Yung and Lai’s signatures were witnessed by Henry K. Hui, a lawyer and notary. On February 28, 2003, the Bank executed a similar acknowledgement and consent.
[11] At a meeting in Hong Kong on October 25, 2003, Yung and Michael Lin, the principal of Grand Pacific and Madison, agreed, among other things, that the Property would be transferred from Yung to Grand Pacific and Madison. The agreement was subsequently set out in a memorandum of understanding dated November 20, 2003, which was drafted by Sun. The memorandum of understanding was revised in December 2004.
[12] Yung says that he understood from Sun that once beneficial ownership of the Property was transferred to Grand Pacific and Madison, the Guarantees would be replaced by other guarantees from Linn and his wife.
[13] In 2006, Yung completed the transfer of his interest in the Property to Grand Pacific and Madison (the “2006 Restructuring”). Sun acted for all parties to implement the transaction. Both Yung and the entities controlled by him and Grand Pacific and Madison signed Acknowledgements and Consents to the Conflict of Interest. Yung executed the Acknowledgement and Consent on April 6, 2006, before Eddie Ho Chow Mui, a lawyer in Hong Kong who is also licensed to practice in Ontario.
[14] Yung also received independent legal advice from Mr. Mui concerning the 2006 Restructuring. In a Certificate of Independent Legal Advice dated April 6, 2006, Mr. Mui certified, among other things, that he had met with Yung, he reviewed documents concerning the Property and the 2006 Restructuring with him, that he explained the nature of the documents and advised Yung “fully and plainly” as to the effect and consequences of signing the documents and the liability that could arise, that Yung declared to him that he fully understood the nature and effect of the documents and the liability that could occur and that he signed the documents freely and voluntarily. Yung signed the Certificate acknowledging, among other things, that he had received the advice.
[15] Yung says that the agreement to transfer his interest in the Property at all times included the cancellation of the Guarantees to the Bank; that Sun acted for him throughout and was aware that the Guarantees were to be cancelled and Sun told him that they would be cancelled. Sun denies that Yung or Lai ever instructed him that their Guarantees to the Bank were to be released as part of the 2006 Restructuring. The 2006 Restructuring agreement contained no such provision.
[16] The Bank issued a Notice of Sale under the mortgage dated July 16, 2008. Sun sent a letter to the Bank’s solicitor advising that he acted for Yung and that his client was interested in purchasing the Property. In December 2009, the Bank advised Lai and Yung that the Property had been sold.
[17] On December 18, 2009, the Bank’s lawyer sent a letter to Lai following a telephone call with her advising that the Property had been sold for $8 million and that the amount required to redeem the mortgage was $9,138,963.03. The letter stated in part: “You and all of the other encumbrancers and guarantors have had a significant period of time in which to redeem, but have shown absolutely no indication of your ability or desire to redeem the mortgage.”
[18] Lai responded to the December 18, 2009 letter with a letter dated December 22, 2009 which stated in part: “Please clarify in the event that the property has been sold based on the terms that you referred to in your letter dated December 18, 2009, as a guarantor, am I liable for the shortfall of the actual outstanding amount of the mortgage?”
[19] There is a dispute in the evidence as to whether Sun drafted the letter or it was drafted by Yung and Lai and merely translated into English by Sun.
[20] The Statement of Claim was served on Lai on January 11, 2011. Lai retained counsel and served a Statement of Defence and a Crossclaim against Yung on March 2, 2011.
[21] Yung was served with the Statement of Claim pursuant to an order for substituted service, effective April 29, 2013. The Bank subsequently obtained default judgment against Yung. Yung deposes that when he discovered the default judgment against him in 2015, he retained a lawyer in Hong Kong who had previously advised him and, based on advice, subsequently hired an Ontario lawyer who had the default judgment set aside.
[22] The Third Party Claim was issued on September 1, 2015. The Third Party Claim alleges that at all material times, Sun acted for Yung in respect of the transactions involving the purchase and financing of the Property in 1992, and the transfer of Yung’s interest in the Property to Grand Pacific and Madison in 2005. Yung and Lai allege that Sun breached his duties to them arising out of the 2006 Restructuring and specifically that he:
a) had a conflict of interest in acting for both Grand Pacific and Madison at the same time as Yung and Lai; b) failed to advise Yung and Lai of the conflict; c) failed to replace or cancel the Guarantees as instructed and promised; d) failed to accurately and fairly advise Yung and Lai as to their potential liability under the Guarantees and the nature and value of the Guarantees.
[23] In his affidavit on the motion, Yung alleges that Sun failed to follow his instructions to cancel the Guarantees and that Sun told him that the Guarantees would be cancelled once the transfer of the ownership of the Property was completed. He states that he didn’t understand the complexity of the 2006 Restructuring and relied on Sun to protect his interests. In respect of the Acknowledgement and Consent that he signed with Mr. Mui in April 2006 in Hong Kong, his evidence is that he signed the documents in Mr. Mui’s office in Hong Kong based solely on Sun’s advice; all of the documents are in English and were not translated to him by Mr. Mui; that he thought that the Guarantees would be cancelled based on his instructions to Sun.
[24] Yung also alleges that when he learned of the Bank’s action on the Guarantees, Sun advised him that he had no exposure on the Guarantees for a number of reasons including that the Property was worth more than the amount owing on the mortgage, the Bank’s sale was improper, and that as long as he was not served with the claim, he did not have to defend the claim and the Guarantees could not be enforced against him.
[25] Lai filed an affidavit in a supplementary responding record. She says that English is her second language and she cannot read or speak it very well. At all material times, she acted solely on Yung’s instructions and signed whatever he asked her to. She was not involved in any of the matters involving the Property and did not have much contact with Sun.
[26] Sun denies Yung’s allegations against him. He denies that Yung or Lai ever instructed him to cancel the Guarantees to the Bank or that he ever indicated that had occurred. He deposes that the primary purpose of the 2006 Restructuring was to secure the release of Yung’s guarantee of the Grand Pacific/Madison debt which was subordinate to the Bank. Sun further states that his only involvement with respect to the Bank’s enforcement was with respect to the initial Notice of Sale. He advised Yung that he could attempt to redeem the mortgage or purchase the Property to attempt to protect his interest and guard against a low selling price.
The Issues
[27] The issue raised by the parties on this motion is whether, pursuant to s. 18 of the Act, the two year limitation period in respect of the Third Party Claim for contribution and indemnity runs from “the day on which the first wrongdoer was served with the claim” or whether s. 18 incorporates the discoverability criteria in s. 5(1) and (2) such that it doesn’t begin to run until Yung and Lai have suffered loss or damage which Yung submits was not until he became aware of the default judgment against him.
[28] In the alternative, Yung submits that the common law doctrine of fraudulent concealment is applicable on the facts before the court and operates to suspend the limitation period until Yung was advised by his Ontario counsel that he had a claim against Sun.
Summary Judgment
[29] In Hyrniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court set out the procedure to be followed in respect of a summary judgment motion pursuant to Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The court must first determine based only on the evidence in the motion record, whether there is a genuine issue requiring a trial. The questions to be addressed are whether there is sufficient evidence to enable the court to fairly and justly adjudicate the dispute and whether summary judgment would be a timely, affordable and proportionate procedure.
[30] Where, however, there appears to be a genuine issue for trial, it is necessary for the court to then determine whether the need for a trial can be avoided by using the powers granted under rules 20.04(2.1) (weighting evidence, evaluating credibility and drawing reasonable inferences) and 20.04(2.2) (hearing oral evidence), provided the use of such powers is not against the interest of justice.
[31] In the present case, the motion record contains conflicting evidence from Sun on the one hand and Yung and Lai on the other concerning their relationship and what took place between them in respect of the 2006 Restructuring and the Bank’s subsequent Action. To the extent there is conflicting evidence, it cannot be resolved on the face of the record. I consider, however, that much of that controversy need not be determined to fairly and justly adjudicate the dispute between the parties. Rather, the issues between the parties can be resolved based on the evidence which is not in dispute and on the evidence of Yung and Lai although in the latter case, utilization of the powers under rule 20.04(2.1) is necessary.
The Limitation Issue
[32] The overall purposes of the Act are certainty, finality and the unfairness of subjecting defendants to the threat of a lawsuit beyond a reasonable period of time: 407 ETR Concession Co. v. Day, 2016 ONCA 709, 133 O.R. (3d) 762 (C.A.), at para. 48. See too: Canaccord Capital Corp. v. Roscoe, 2013 ONCA 378, 115 O.R. (3d) 641 at para. 24.
[33] Section 4 of the Act specifies that a proceeding shall not be commenced in respect of a claim after the second anniversary of the day the claim was discovered.
[34] Section 5 of the Act sets out the criteria to be applied in determining the date on which a claim is discovered:
- (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.
[35] Section 5(1)(a) set out a subjective test addressing the knowledge of the person with the claim and s. 5(1)(b) set out a modified objective test addressing the knowledge of a reasonable person in the shoes of the person with the claim. A claim is discovered on the earlier of the date when the person first knew of the claim or the date when they should have known: Clarke v. Faust, 2016 ONCA 223, [2016] O.J. No 1486 at para. 41 (C.A.).
[36] Section 5(2) creates a presumption in respect of 5(1)(a) whereby the person with the claim is presumed to know of all the matters in s. 5(1)(a) “on the day the act or omission on which the claim is based took place” unless the contrary is proved.
[37] Section 18 of the Act concerns the limitation period in respect of a claim for contribution and indemnity. It provides:
- (1) For the purposes of subsection 5(2) and section 15, in the case of a claim by one alleged wrongdoer against another for contribution and indemnity, the day on which the first alleged wrongdoer was served with the claim in respect of which contribution and indemnity is sought shall be deemed to be the day the act or omission on which that alleged wrongdoer’s claim is based took place. (2) Subsection (1) applies whether the right to contribution and indemnity arises in respect of a tort or otherwise.
[38] As noted in The Law of Limitations, G. Mew, 3rd edition 2016, LexisNexis Canada at para. 5.91, there is a conflict of judicial opinion in Ontario concerning whether s. 18 of the Act establishes an absolute two year limitation period from the date of service of the claim or whether discoverability still applies.
[39] In Miaskowski (Litigation guardian of) v. Persaud, 2015 ONSC 1654, [2015] O.J. No. 1208, Perell J. held, in obiter, that having regard to the wording of the Act and specifically s. 18 as well as the policy purposes of the Act, s. 18 provides for an absolute two year limitation period with respect to claims for contribution and indemnity.
[40] By contrast, in Demide v. Canada (Attorney General), 2015 ONSC 3000, [2015] O.J. No. 2611, Leach J. held, also in obiter, that by its wording, s. 18, when read in conjunction with ss. 15(2) and 15 of the Act, is not intended to operate as a stand-alone limitation period but rather is subject to discoverability.
[41] With great respect to Madame Justice Leach, I prefer Justice Perell’s interpretation that s. 18 of the Act establishes an absolute two year limitation period with respect to claims for contribution and indemnity. The wording of s. 18 “deems” the limitation period for contribution and indemnity claims to be two years from the date the “first alleged wrongdoer was served with the claim in respect of which contribution and indemnity is sought…”
[42] As Perell J. stated in Miaskowski, at para. 82:
- I pause to emphasize that in the context of the discovery of a claim that s. 18 uses the word “deemed,” which as a declarative legal concept is a firmer or more certain assertion of the discovery of a claim than the rebuttable presumption of discovery contemplated by s. 5 of the Limitations Act, 2002. Moreover, the deeming provision in s. 18 does not contain the moderating language “unless the contrary is proved” that is found in s. 5(2) of the Act. I will return to this point below.
[43] Justice Perell went on to state at para. 94 of Miaskowski that in his view, by using the language of a deeming provision without any reference to the deeming of discovery of the claim being rebuttable, the legislature intended to impose an absolute two year limitation period with respect to claims for contribution and indemnity.
[44] Justice Leach disagrees with Justice Perell’s “deeming” analysis, stating that it ignores the opening words of s. 18, “For the purposes of subsection 5(2) and 15 …” The learned judge states, in part, at para. 87 of Demide:
... In my opinion, those words make it clear that section 18 was not intended to operate as a “stand alone” limitation period, with independent application, or a provision to be viewed and read separately and in contrast to s. 5(2). Rather, section 18 expressly was enacted “For the purposes of subsection 5(2) and 15”, [emphasis added]; i.e., to inform and dictate the meaning to be given to certain concepts referred to in ss. 5(2) and 15, when applying those sections.
[45] With great respect, I read the opening words “For the purposes…” in s. 18, to separate it from ss. 5(2) and 15 rather than incorporating it into those sections. In other words, the two year limitation period is deemed to apply and there is no presumption and no ability to prove the contrary.
[46] I agree with the comments of Madame Justice H.M. Pierce at para. 37 of Hughes v. Dyck, 2016 ONSC 901, 129 O.R. (3d) 495 (S.C.J.), where, in holding that s. 18 provides for an absolute two year limitation period, she stated, in part:
…. It is equally conceivable that by prefacing s. 18(1) with the phrase “For the purposes of subsection 5(2) and section 15,” the Legislature intended to signal that claims for contribution and indemnity are carved out from other claims that might otherwise qualify for an extension under s. 5(2). In other words, the preface might just as easily be read as a direction to exclude claims for contribution and indemnity from the effect of s. 5(2) rather than as a direction to read them as subject to s. 5(2). If it is a rare case where a claimant would not know whom to sue for contribution and indemnity, then this limitation on the scope of such claims, potentially two further years after the first limitation has run, would not be unreasonable. Arguably, it would create greater certainty.
[47] The interpretation that s. 18 establishes an absolute limitation period is also, in my view, more in keeping with the policy purposes of the Act. The two year period from service of the claim on the first wrongdoer is clear, concise and more than sufficient, in my view, to enable the first wrongdoer to commence a claim against another wrongdoer arising out of the plaintiff’s claim. To incorporate discoverability into a determination of the limitation period for contribution and indemnity gives rise to the same uncertainty that existed before the Act and which s. 18 was intended to cure.
[48] Yung and Lai submit that the Court of Appeal upheld the Motion Judge’s application of the discoverability principle to s. 18 in Fennell v. Deol, [2015] O.J. No. 4662 (S.C.J.); reversed in part on appeal, 2016 ONCA 249, [2016] O.J. No. 1745 (C.A.). It is clear from both decisions, however, that the issue of whether s. 18 establishes an absolute two year limitation period was not argued either before the Motion Judge or the Court of Appeal.
[49] The Statement of Claim was served on Lai sometime in early 2011, more than four years before the Third Party Claim was issued. It was served on Yung effective April 29, 2013, more than two years, four months prior to the Third Party Claim being issued. While, in my view, s. 18 provides that the date when the time begins to run is from the date of service of the Statement of Claim on Lai (the first wrongdoer), in either case the Third Party Claim was commenced more than two years from service of the Statement of Claim and is accordingly statute barred.
Fraudulent Concealment
[50] The common law doctrine of fraudulent concealment is an equitable principle that operates to prevent a limitation period from operating as a “instrument of injustice”. When established, it prevents the limitation period from running until the fraud is discovered or until, with reasonable diligence, it ought to have been discovered. The conduct required is equitable fraud, which has been described as “conduct which, having regard to some special relationship between the two parties concerned, is an unconscionable thing for the one to do to the other.” See: Guerin v. Canada, [1984] 2 S.C.R 335 (S.C.C.) at paras. 111 and 115; Giroux Estate v. Trillium Health Centre (2005), 74 O.R. (3d) 341 (C.A.) at paras. 22, 28 and 29.
[51] Three elements must be established to make out the doctrine:
a) the defendant and plaintiff are engaged in a special relationship with one another; b) given the special or confidential nature of the relationship, the defendant’s conduct amounts to an unconscionable thing for the one to do to the other; and c) the defendant conceals the plaintiff’s right of action (either actively, or as a result of the manner in which the act that gave rise to the right of action is performed).
See: Rajmohan v. Norman H. Solmon Family Trust, 2014 ONCA 352; [2014 O.J. No. 2170 (C.A.).
[52] As Yung’s solicitor during the material time, I have no difficulty in finding that Sun and Yung (and through him, Lai) were in a special relationship. In my view, however, the evidence does not establish that the causes of action alleged by Yung were concealed by Sun.
[53] As noted, the Third Party Claim alleges that Sun had a conflict of interest in respect of the 2006 Restructuring and failed to advise Yung or Lai. On April 6, 2006, however, Yung signed an Acknowledgement of Conflict of Interest and Consent on behalf of all the entities that had an interest in the Property expressly acknowledging the conflict and consenting to Sun acting for other parties to the transaction. Yung makes no specific reference in his affidavit to his acknowledgement of the conflict and his consent. I do not accept his evidence that because he didn’t speak English, he had no knowledge of what he was signing and was only signing the documents on the advice of Sun. A lawyer (Mr. Mui), licensed to practice in Ontario, certified that, among other things, he explained the documents to Yung. In my view, Yung clearly knew about the conflict, understood its implications and consented to it.
[54] In their factum, Yung and Lai submit that they did not know that they had a claim against Sun because he never told them he made an error in failing to cancel the Guarantees. Further, when the error became apparent, they submit that Sun assuaged their concerns by repeated assertions that they had no legal exposure to the Guarantees.
[55] There is no question on the undisputed evidence, that both Yung and Lai knew at the latest in December 2009 that their guarantees to the Bank had not been extinguished, contrary to their alleged instructions to Sun. Yung deposes that it was in December 2009 he “realized, for the first time, that Sun may have failed to arrange for the cancellation of the Guarantees.”
[56] Yung and Lai were also aware at that time that the Bank was looking to them, as guarantors, in respect of the shortfall that resulted from the sale of the Property. In my view, given Yung’s background as an experienced developer and businessman who had used lawyers in the past, he would have clearly known (and Lai by extension) that they had a claim against Sun for not following his instructions.
[57] I accept that Sun never advised Yung and Lai that they had a claim against him. While failure to advise of a claim may give rise to fraudulent concealment, such failure by itself is not determinative. Rather, it is necessary to consider all the facts. The issue is when the fraud (the concealment) has been or reasonably could have been discovered. Where, as here, the parties alleging fraudulent concealment are aware of the essential facts giving rise to a claim against the alleged wrongdoer, the fact that they were not told of the claim directly by the wrongdoer does not operate to extend the concealment. Simply put, there is no longer any concealment.
[58] Accordingly, I find there was no concealment of the facts giving rise to a claim against Sun for failure to cancel the Guarantees. They knew, at the latest by December 2009, that the Guarantees had not been cancelled contrary to Yung’s allegedly clear instructions and Sun’s assurances and that the Bank was looking to them on the Guarantees to reimburse it for any shortfall on the mortgage.
[59] What is Yung and Lai’s evidence that Sun repeatedly told them they had no liability concerning the Guarantees? There is no evidence from Lai that Sun gave any assurances that she had no liability under the Guarantees. In fact, the evidence supports the contrary inference. When the action was commenced, Lai retained a lawyer who entered a defence on her behalf and started a cross-claim against Yung.
[60] Yung’s evidence is that Sun advised him they had no liability under the Guarantees because the value of the Property far exceeded the indebtedness owing to the Bank under the mortgage. That is contrary to Yung’s statement in his affidavit that based on what he understood the value of the Property was compared to the amount owing on the mortgage, “I therefore concluded that there would be no reason to enforce the Guarantees.” He does not say that conclusion was a result of anything Sun told him.
[61] Even assuming Sun provided that advice, Yung was aware by December 2009 that the Property had been sold for less than the amount owing to the Bank and that the Bank was looking to Yung and Lai to pay the shortfall pursuant to the Guarantees. Further, when the Bank commenced the Action, both Yung and Lai knew they had potential liability to the Bank.
[62] Yung says that Sun advised him that his offer to purchase the Property would avoid liability and that the Bank’s failure to list the Property on MLS made it impossible to claim a loss against them. The evidence does not establish Yung ever made an offer to the Bank to purchase the Property. Further, once Yung became aware of the Action, he became aware of the potential for liability on the Guarantees.
[63] Yung also states that Sun told him that he had no liability to the Bank if he was not served with the Action. Yung clearly knew through Lai that the Bank had commenced the Action against them. Given their joint position that at all times Lai was acting upon Yung’s directions in respect of the Property, it is reasonable to infer that when she received the substituted service order in respect of Yung in early 2013, she passed it onto him right away. Accordingly, I cannot accept his evidence that he didn’t know he’d been served until the default judgment came to his attention. In my view, and I find, Yung knew he had been served in accordance with the substituted service order on or around the effective date of service of April 29, 2013.
[64] As a result, I find that the doctrine of fraudulent concealment does not apply to extend the limitation period for the Third Party Claim.
Conclusion
[65] For the above reasons, therefore, Sun and the Firm’s motion for summary judgment is allowed. The Third Party Claim is dismissed.
[66] Sun and the Firm are entitled to their costs of the motion and the Third Party Action on a partial indemnity basis. Having regard to the Cost Outlines filed by both parties, the issues raised on the motion and the additional time spent in responding to the Third Party Claim, I consider that costs fixed at $35,000 is fair and reasonable.
L. A. Pattillo J. Date Released: May 17, 2017