Court File and Parties

CITATION: Estate of Sara Maria Calderon v. Prince, 2017 ONSC 6584

COURT FILE NO.: CV-09-383438

DATE: 2017-11-20

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: The Estate of Sara Maria Calderon

AND:

Michael Prince and Sonie Prince

BEFORE: Mr. Justice T. McEwen

COUNSEL: M. Jasmine Sweatman and Elise Harrington, for the Applicant Michael Prince and Sonie Prince, in person Edward Burgos, in person

HEARD: October 30, 2017

ENDORSEMENT

Introduction

[1] This application arises out of a long-standing family dispute.

[2] The non-party Edward Burgos brings this motion seeking payment for alleged property management services he provided at 13 Robinson Street, Toronto (the “house”).

[3] The responding parties to the motion are the applicant, the Estate of Sara Maria Calderon (the “Estate”), and the respondents, Michael and Sonie Prince (the “Princes”).

[4] Sonie Prince and Edward Burgos are siblings and are the grandchildren of the late Sara Calderon. Sonie Prince is married to Michael Prince.

[5] In 1996 Ms. Calderon, her husband Luis Calderon and the Princes agreed to purchase the house as tenants in common.

[6] Over time the relationship between the Calderons and the Princes soured. Mr. Burgos and the Princes allege than an agreement was entered into in April 2007, between the Calderons and the Princes, wherein Mr. Burgos would act as the property manager and be compensated. Around this time the Calderons moved out of the house. Mr. Calderon passed away in July 2008. As a result of the falling out between the Calderons and the Princes, Mrs. Calderon commenced legal proceedings in July 2009 against the Princes to force the sale of the house.

[7] The Princes and Mr. Burgos continued to maintain that he was entitled to be paid as the property manager of the house. As it will be noted below, demands were made by the Princes and Ms. Calderon refused payment. Ultimately, Ms. Calderon passed away in August 2012. Mr. Burgos’ claim is now being advanced against the Estate.

The Motion

[8] It was agreed at the hearing of the motion that the actual claim for compensation would be deferred until two preliminary issues were dealt with as follows:

(i) whether Mr. Burgos has standing to pursue the motion as a non-party; and

(ii) whether his claim is statute barred by virtue of the provisions of the Limitations Act, 2002, S.O c. 24 or the Trustee Act, R.S.O. 1990, c. T.23.

[9] For the reasons below, I find that Mr. Burgos has standing to pursue this motion and that his claim for compensation is not barred by virtue of the provisions of the Limitations Act or the Trustee Act.

Standing

[10] The Estate argues that Mr. Burgos does not have standing to pursue his motion since he has not commenced a proceeding to pursue his right for compensation, nor is he a party to this application.

[11] In the unique circumstances of this case I disagree.

[12] I agree with the Estate that in usual circumstances claims cannot be advanced where there is no originating process. This claim by Mr. Burgos has, however, proceeded in an unorthodox manner.

[13] The Princes always supported a claim by Mr. Burgos for remuneration. What followed was a number of court orders regularizing the procedure that was to be followed so that Mr. Burgos could advance his claim.

[14] There are four orders/endorsements in the record that evidence this fact:

• order of Justice Pitt, dated October 15, 2009, that first identifies Mr. Burgos as the property manager;

• endorsement of Justice Pattillo, dated September 21, 2012 wherein he ordered that the issue of Mr. Burgos’ compensation be dealt with when the house was sold;

• endorsement of Justice Pattillo, dated July 21, 2016 wherein he ordered that Mr. Burgos provide an accounting of his alleged property management duties performed over the preceding seven years;

• order of Justice Hainey, dated March 13, 2017, in which he varied Justice Pattillo’s July 21, 2016 order and provided a specific procedure so that Mr. Burgos could proceed with his motion for compensation, which included Mr. Burgos serving a motion record setting out his claim with supporting documents as well as providing for responding affidavits, cross-examinations, and hearing date.

[15] The Estate actively participated in each and every one of the attendances that led to the above orders. At no time did the Estate take the position that Mr. Burgos did not have standing to pursue his claim.

[16] In my view, it was incumbent upon the Estate at those hearings to state its position that Mr. Burgos did not have standing. Instead, the Estate remained silent on this point. The time to raise the issue was then and there. The Estate has now waived the opportunity to do so and is now estopped from raising the issue of standing. I am also of the view that the Estate’s argument represents a collateral attack on those previous orders.

[17] The Estate submits that it did not raise the issue of standing since it was more focused on the issues surrounding the house. This may have been the case but the issue was front and centre, and the procedure as to how Mr. Burgos could pursue his claim was settled.

[18] In all of the circumstances, therefore, it would be unfair and inequitable for the Estate to now take the position that Mr. Burgos does not have standing to pursue his claim in the face of what has transpired above, particularly the court orders that set out a process for the adjudication of his claim.

Limitation Issues

[19] As noted, I am also of the view that Mr. Burgos’ claim is not barred by virtue of the provisions of the Limitations Act or the Trustee’s Act. I will deal with each in turn.

a) Limitations Act

[20] The Estate first submits that Mr. Burgos’ claim is barred by virtue of the two year limitation period contained in the Limitations Act.

[21] The legal framework for limitation issues was well set out by Justice Penny in Monaghan v. Kent et al., 2016 ONSC 1137, wherein he stated:

The plaintiff’s claims are governed by the two year limitation period in s. 4 of the Limitations Act, 2002; a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

Section 5 of the Limitations Act provides that 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).

The principle of discoverability provides that the cause of action arises for the purposes of the limitation period when the material facts on which the claim is based have been discovered, or ought to have been discovered, by the plaintiff by the exercise of reasonable diligence. This principle conforms with the generally accepted definition of the term “cause of action” – the fact or facts which give a person a right to judicial redress or relief against another. Determining whether a person has discovered a claim is a fact-based analysis, Lawless v. Anderson, 2011 ONCA 102 at paras. 22-23.

Certainty of a defendant’s responsibility for the act or omission that caused or contributed to the loss is not a requirement. It is enough to have prima facie grounds to infer that the acts or omissions were caused by the party or parties identified, Kowal v. Shyiak, 2012 ONCA 512 at para. 18.

Discovery of a claim does not depend upon the plaintiff knowing that his or her claim is likely to succeed; the limitation period runs from when the prospective plaintiff has or ought to have had knowledge of a potential claim, and the later discovery of facts which change a borderline claim into a viable one does not postpone the discovery of the claim, Tender Choice Foods Inc. v. Versacold Logistics Canada Inc., 2013 ONSC 80, aff’d ONCA 474, at para. 59.

The claimant only has to know enough material facts on which to base a legal allegation. Once the plaintiff knows that some damage has occurred and has identified the alleged wrongdoer, the cause of action has occurred. Neither the extent nor the type of damage need be known. The claimant also need not know the details of the wrongdoer’s conduct or how the wrongdoer caused the loss. The question of how it happened will be revealed through the legal proceeding, Beaton v. Scotia iTrade, 2012 ONSC 7063, aff’d 2013 ONCA 474, at para. 13.

What emerges from the jurisprudence since the Limitations Act was passed is the over-arching obligation of due diligence; limitation periods are designed to incent claimants not to sleep on their rights, Sutton v. Balinsky, 2015 ONSC 3081 at para. 147.

[22] As previously noted, a debate ensued between Mrs. Calderon and the Princes as to whether Mr. Burgos should be compensated. E-mails were exchanged between the Princes and Ms. Calderon’s former solicitor in this regard. By way of e-mail dated March 29, 2010, Mr. Calderon’s solicitor sent an e-mail to the Princes, which was provided to Mr. Burgos as well at that time. It stated as follows:

I have discussed the issue of remuneration for Mr. Burgos with my client. At this time, my client does not wish to pay any money to Mr. Burgos.

[23] Ms. Calderon also prepared an affidavit on June 18, 2010, in which refers to the aforementioned e-mail and deposes, “I would not agree to pay Mr. Burgos”.

[24] As noted, Ms. Calderon passed away on August 31, 2012. The Estate rightly points out that Mr. Burgos failed to commence an action against Ms. Calderon before her death. It submits that the limitation period would have begun to run at the latest by the time Ms. Calderon prepared her affidavit on June 18, 2010, and the limitation period therefore expired a few months before her passing.

[25] While this argument has some superficial appeal, it cannot succeed as a result of the following combination of reasons:

• First and foremost, the aforementioned e-mail refusing payment was equivocal. The refusal to pay was qualified by the words “at this time.”

• There is no evidence in the record that Mr. Burgos received the affidavit of Ms. Calderon between June and August 2010. In any event, not much turns on the affidavit since it merely reiterates the fact that Ms. Calderon’s lawyer sent the email to Mr. Burgos denying payment.

• No denial was ever communicated by Ms. Calderon or her lawyer directly to Mr. Burgos.

• Mr. Burgos kept doing the work at the property.

• The evidence of the Princes is that it was their belief that the discussions would continue with respect to payment notwithstanding the aforementioned e-mail and affidavit.

• Mr. Burgos was of the view that Ms. Calderon lacked capacity to make the decision and that the negotiations would continue and perhaps payment would be made.

• The demand made by the Princes on June 4, 2010, demonstrates that there is ongoing dialogue and the debate is continuing.

• The position of the Princes and Mr. Burgos, that the issue of remuneration remained a live one, is supported by the order of Justice Pattillo dated July 21, 2016, wherein he ordered that Mr. Burgos provide an accounting for the previous seven years. The Estate was therefore aware that Mr. Burgos was continuing to claim that he was doing work at the house right up until the matter appeared in front of Justice Pattillo on July 21, 2016.

[26] For all of the above aforementioned reasons I find that prior to Ms. Calderon’s passing there was never an unequivocal denial of Mr. Burgos’ claim. At its highest he received a second hand, equivocal denial which is undermined by the fact that he continued to do the work at the house which resulted in the accounting being ordered into 2016.

[27] In these circumstances, I do not find that the limitation period expired as alleged by the Estate.

b) [Trustee Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-t23/latest/rso-1990-c-t23.html)

[28] Section 38(3) of the Trustee Act stipulates that a claim must be brought within two years of death. The Estate submits, in the alternative, since Mr. Burgos has yet to commence an action, any claim for compensation the Estate is also statute barred.

[29] Having found that Mr. Burgos has standing, it cannot be said that the limitation period under the Trustee Act has expired. Approximately three weeks after Ms. Calderon’s passing, Justice Pattillo made the aforementioned September 21, 2012 order in which he specifically stated that “compensation of the property manager should be dealt with upon the sale of the property and prior to the distribution of the proceeds.” As noted, further orders were made by Justice Pattillo and Justice Hainey dealing with the procedure to be followed. The house sale did not close until April 2017. Mr. Burgos, in accordance with Justice Pattillo’s order, is now advancing his claim via the procedure ordered by Justice Hainey.

[30] In these circumstances I do not accept that the two year limitation period contained in the Trustee Act bars the motion being brought by Mr. Burgos. Justice Pattillo’s order conferring standing on Mr. Burgos was made far before the two year limitation period in the Trustee Act expired. By conferring standing on Mr. Burgos, Justice Pattillo’s order was tantamount to saying that a proceeding had been initiated by Mr. Burgos. Justice Pattillo’s order effectively dispensed with the need for an originating process. The Estate had notice of Justice Pattillo’s order, and it was open to the Estate to object to the conferral of standing upon Mr. Burgos in 2012. To now find that Mr. Burgos’ claim is statute-barred would allow the Princes’ and the Estate to unjustly benefit from the amount of time it has taken to sell the house. It would also allow the Estate to unjustly benefit from not raising the lack of an originating process for five years. This is not a case where the Estate had no notice of Mr. Burgos’ claim. Rather, as stated in the Justice Pattillo’s endorsement of September 21, 2012, the Estate was aware that Mr. Burgos’ claim would have to be resolved upon sale of the house.

Disposition

[31] Based on the above, I dismiss the Estate’s motion that Mr. Burgos lacks standing and that his claim is barred by virtue of the limitation period contained in the Limitations Act or the Trustee Act.

[32] The parties may now schedule a hearing date with the Estate Office to deal with the remaining issues. I reserve costs to the ultimate disposition of the matter.

Mr. Justice T. McEwen

Date: November 20, 2017