Court File and Parties

COURT FILE NO.: CV-11-434462 DATE: 20181017

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

THE ESTATE OF GUIDO BARBERIO, by his Executor, Mauro Marchioni Plaintiff/Responding Party – and – JOSE DA COSTA, ROSA DA COSTA, and ALLEN P. WELMAN Defendants/Moving Parties

Counsel: Emilio Bisceglia, for the Plaintiff/Responding Party Shawna Sosnovich, for the Defendants/Moving Parties Jose Da Costa and Rosa Da Costa David Silver, for the Defendant/Moving Party, Allen Welman

HEARD: September 14 and 15, 2018

Justice S. Nakatsuru

Endorsement

[1] Guido Barberio lived next door to Jose Da Costa and Rosa Da Costa, a married couple, for about 16 years before he died on February 19, 2010, at the age of 82. On June 3, 2008, Mr. Barberio transferred title of the home he lived in at 369 Northcliffe Boulevard to Jose Da Costa for a sum of $100,000. It is alleged that this amount was far below market value. Mr. Allen Welman, Barrister and Solicitor, acted for Mr. Barberio on this real estate transaction. After his death, his Estate has issued a statement of claim on September 7, 2011 against the defendants. The plaintiff alleges that Mr. Barberio was taken advantage of in the sale of his home by the Da Costas. It is further alleged that this wrongful act was aided by the negligent actions of Mr. Welman. The defendants deny this. The Da Costas submit that Mr. Barberio validly transferred his home to the Da Costas in appreciation for the past care they gave him and the future care they would continue to give him. Mr. Welman submits that he conducted himself appropriately in facilitating this real estate transaction.

[2] This is a summary judgment motion brought by the defendants. The plaintiff says a trial is needed. The plaintiff has not sought summary judgment in his favour on any of the issues raised by the defendants. After careful consideration, I agree that this case cannot be disposed of on summary judgment. A trial is required. A trial date has been set for April 1, 2019. I will be the trial judge. As a result, it is not appropriate for me to comment at any length on some of the evidence, especially given the credibility issues raised in the case by conflicting witnesses. It will be enough for me to outline the core reasons for my decision.

[3] In this case, the following must be determined:

• Is there a genuine issue requiring trial that the Da Costas were unjustly enriched?
• Are the plaintiff’s claims for punitive or general damages against the Da Costas statute barred?
• Is the claim against Mr. Welman statute barred?
• If Mr. Welman acted negligently, did his negligent action(s) cause the plaintiff any damages?
• If some of the claims are amenable to summary judgment, is it appropriate to grant partial summary judgment?

[4] I will briefly summarize the chronology and facts to provide context to my reasons. Again, I am mindful that significant portions of the evidence are disputed. Unless expressed otherwise, factual references should not be taken as a definitive factual finding for trial purposes.

A. THE FACTUAL BACKGROUND

[5] From 1994 to 2008, the Da Costas and Mr. Barberio were next-door neighbors. The Da Costas state that they were like family; the Da Costas helping out Mr. Barberio in a caring and considerate fashion. The Estate disputes this.

[6] On January 19, 2008, Mr. Barberio suffered injuries as a result of an accident and was hospitalized.

[7] The Da Costas allege that in April of 2008, Mr. Barberio approached them with the idea that if the Da Costas paid him $100,000 for his house and agreed to let him live there for the rest of his life, he would transfer title to them. The Da Costas agreed and promised to pay for the future expenses of the house and to take care of him.

[8] On April 22, 2008, Mr. Barberio was admitted to the Toronto Western Hospital. On April 24, 2008, he went through some testing which showed congestive heart failure.

[9] On April 29, 2008, Mr. Barberio met with Alice Fava, a lawyer recommended to him by a friend. Mr. Barberio signed a Power of Attorney for Personal Care appointing the Da Costas. He signed a Power of Attorney for Property appointing Ms. Fava. He further signed a will naming Ms. Fava as his executor and a sister in Italy as a beneficiary.

[10] In early to mid-May, Mr. Barberio met Ms. Fava with a signed agreement of purchase and sale of his home, transferring it to the Da Costas for $100,000. Ms. Fava did not approve of it. There is a dispute between the parties of how this meeting went. Ms. Fava’s evidence is that she felt Mr. Barberio was vulnerable and could not take care of himself. She believed there were alternative ways to compensate Rosa Da Costa for taking care of him.

[11] On May 26, 2008, Ms. Fava writes to the Da Costas stating that she refused to approve the transfer, the sale of Mr. Barberio’s property on those terms was unconscionable, and, if proceeded with, it would be set aside.

[12] In May of 2008, Mr. Barberio meets with Mr. Welman to get his help with the transfer of his property.

[13] In May of 2008, the Da Costas retain a lawyer, Nelson Garcia, to act for them on the transfer. A second agreement of purchase and sale for the property was signed.

[14] On or about May 30, 2008, (the date of this is disputed) the transfer of Mr. Barberio’s property to Jose Da Costa was signed. An undertaking from the Da Costas to allow Mr. Barberio to live in his home and to take care of him also was signed. The plaintiff submits that Mr. Barberio only signed a direction to Mr. Welman transferring the property to both Jose Da Costa and Rosa Da Costa. On May 30, 2008, Mr. Barberio signs with Mr. Welman a Power of Attorney for the Property appointing Rosa Da Costa, and a will naming his sister in Italy as beneficiary.

[15] On June 3, 2008, the property was transferred and registered on title to Jose Da Costa.

[16] On June 24, 2008, Mr. Barberio underwent surgery to replace a stent in his heart.

[17] From June 2008 to August 2009, there is a dispute between the parties about the amount of care and attention the Da Costas gave to Mr. Barberio.

[18] In April of 2009, the defendants submit that there are medical reports stating that Mr. Barberio was confused and was declining cognitively.

[19] In August of 2009, the plaintiff submits that Mario Lucente, Mr. Barberio’s cousin, met with Mr. Barberio who showed Mr. Lucente his will. Other documents regarding the transfer of his property were also shown. It is alleged that Mr. Barberio said to Mr. Lucente and Giorgio Barberio, a nephew, that he did not sign the documents and did not sell his house to the Da Costas.

[20] On August 30, 2009, Mr. Barberio met with Mauro Marchioni, a lawyer. The transfer documents were reviewed. Mr. Barberio states that he did not sell his home. On August 31, 2009, Mr. Marchioni wrote to Mr. Welman about Mr. Barberio’s understanding that he did not sell his home.

[21] On September 1, 2009, Mr. Marchioni wrote to the Da Costas revoking the Power of Attorneys and advising them not to take any further steps. Mr. Marchioni advised that they were going to take steps to set aside the transfer of the property.

[22] On September 2, 2009, Mr. Barberio executes a direction to Mr. Welman to provide Mr. Marchioni with a copy of the real estate file for the property.

[23] On September 4, 2009, Mr. Barberio executes a new will with Mr. Marchioni and Mr. Lucente as his executors and Mr. Lucente and Mr. Giorgio Barberio as beneficiaries.

[24] On September 10, 2009, Tony Afecto, a lawyer, sends a letter to Mr. Marchioni advising he acts for the Da Costas and responds to Mr. Marchioni’s letter of September 1, 2009.

[25] The plaintiff alleges that it was the third week of September, 2009, that Mr. Welman responded to Mr. Barberio’s signed direction and made copies of the file regarding the real estate transaction available to Mr. Marchioni. The plaintiff alleges that the complete file was not turned over at the time and material documents were not disclosed until much later.

[26] On September 17, 2009, the Da Costas and Mr. Barberio agree to a “standstill” agreement with respect to the property.

[27] On November 16, 2009, Mr. Barberio moves into a retirement home.

[28] On February 19, 2010, Mr. Barberio passes away.

[29] On March 11, 2010, the Da Costas no longer agree to the standstill agreement. The Da Costas commence renovations of the property.

[30] On May 6, 2011, the certificate of appointment of the Estate Trustee is issued. Mr. Lucente renounces his position as executor.

[31] On September 7, 2011, the plaintiff issues the statement of claim.

B. TEST FOR SUMMARY JUDGMENT

[32] Pursuant to Rule 20 of the Rules of Civil Procedure, a plaintiff is entitled to move for summary judgment dismissing “all or part” of a defendant’s claim. Rule 20.04(2) mandates that the court “shall” grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to all or part of the claim.

[33] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 45, the Supreme Court of Canada confirmed that summary judgment is a “significant alternative model of adjudication”. Rule 20 provides judges with fact-finding powers (i.e., the power to weigh evidence, evaluate credibility, and draw inferences) if required in order to eliminate unmeritorious claims that have no chance of success at trial.

[34] Determination of a motion for summary judgment involves a two-step approach. A judge must:

1. Determine whether there is a genuine issue requiring trial based only on the evidence before him or her, without using the fact-finding powers. If there is no genuine issue requiring a trial, summary judgment “must be granted”.

2. If there appears to be a genuine issue requiring a trial, the judge should then determine whether “the need for a trial can be avoided” by using the fact-finding powers to weigh evidence, evaluate credibility, and draw inferences.

[35] Notably, the Supreme Court of Canada held that the focus should not be on what further or other evidence could be adduced at trial, but rather, on whether a trial is required. A trial is not required when the summary judgment process “(1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a more proportionate, more expeditious and less expensive means to achieve a just result”: Hryniak at para. 49.

[36] If there appears to be a genuine issue requiring a trial, then the court should determine if the need for a trial can be avoided by using the fact-finding powers under rule 20.04. Their use will not be against the interest of justice if their use will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[37] The Supreme Court of Canada confirmed that a documentary record, particularly when supplemented by the court’s fact-finding powers, “is often sufficient to resolve material issues fairly and justly”.

[38] A responding party may not rest solely on the allegations or denials in the party’s pleadings. Under rule 20.0(2), they “must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial”. In the absence of detailed and supporting evidence, the case law has held that a self-serving affidavit does not create a triable issue: Guarantee Co. of North America v. Gordon Capital Corp., [1993] 3 S.C.R. 423 at para. 31. Each side must “put its best foot forward” with respect to the existence or non-existence of material issues to be tried. A court is entitled to assume that the record contains all the evidence that the parties would present if the matter proceeded to trial.

C. ANALYSIS

Is there a genuine issue requiring trial that the Da Costas were unjustly enriched?

[39] Let me start with the amended statement of claim. In this claim, the plaintiff seeks an order against the Da Costas transferring back the property to the plaintiff subject to the return by the plaintiff of $100,000, in the alternative, general damages of $250,000, and punitive damages of $100,000. The statement of claim is brief. It claims that on or about September 10, 2009, Mr. Barberio became aware that he executed a transfer of his home to the Da Costas for the sum of $100,000. Further, it is alleged that Mr. Barberio was at the time of the execution, unaware that the ownership of the property was effectively being transferred for a sum that was about 30% of its value. The plaintiff alleges that the Da Costas took advantage of Mr. Barberio’s physical state and directed him to attend at a lawyer’s office to execute documents transferring the home to them. The plaintiff claims that the price paid was not reflective of the fair market value of the property and as a result of this, the Da Costas were unjustly enriched in the amount the plaintiff claims to be $250,000.

[40] On this summary judgment motion, the Da Costas submit that there is no genuine issue requiring a trial as the plaintiff’s claim for unjust enrichment fails. To this end, they rely on the well-established test for unjust enrichment that the plaintiff must prove: the Da Costas were enriched, that Mr. Barberio suffered a corresponding deprivation, and that there is no juristic reason for the benefit and loss: Petkus v. Becker, [1980] 2 S.C.R. 834. In this case, it is argued that none of the test has been met. First, the Da Costas were not enriched since they undertook to take care of Mr. Barberio for the rest of his life, including paying the expenses on the property, and that this could exceed the benefit of the value of the property. Secondly, given the benefit Mr. Barberio received, he did not suffer a corresponding loss. Finally, there was a juristic reason for the transfer; the contracted bargain as evidenced by the agreement of purchase and sale and the undertaking.

[41] After careful consideration, I find that the nature of the relationship between the Da Costas and Mr. Barberio is a key and material issue requiring a trial. It is material because the evidence on this issue, in particular the evidence of the Da Costas, is relevant to all material prongs of whether the plaintiff has proven the claim of unjust enrichment. There is a conflict in the evidence and the position of the parties about how close that relationship was over the years and how much assistance the Da Costas offered to Mr. Barberio. This is relevant to the benefit they received and the corresponding loss suffered. For instance, if they cared for him as much as they claimed, there may well be no proof of benefit or loss. Contra wise, if some of the evidence led by the plaintiff about the state of disarray Mr. Barberio lived in is believed and an inference can be taken from that the Da Costas did not care for him, the plaintiff’s case is strengthened.

[42] In addition to this, the whole of the evidence must be considered in determining whether there is a juristic reason for the enrichment and deprivation. How the transaction regarding the sale of the property took place is a pivotal issue in the claim. Distilled to its core, even if there is enrichment and deprivation, the juristic justification for the enrichment put forward by the Da Costas is the agreement of purchase and sale of the property. Although the Da Costas submit that the bargain was a fair one, indeed a compassionate one, even if it was not, it is submitted that Mr. Barberio was within his rights to make a poor bargain. He had received legal advice from Ms. Fava and despite it, went ahead with the transaction.

[43] The plaintiff argues that the agreement of purchase and sale is not a valid one. I appreciate fully the defendants’ position that the plaintiff has not specifically pleaded that it was an unconscionable or a fraudulent transaction. That said, what is pleaded is that Mr. Barberio was not aware of the transaction and that the Da Costas took advantage of him. It is also pleaded that they directed him to a lawyer to complete the transfer. Both allegations take aim at the Da Costas’ conduct. The pleadings combined with the evidence led at the summary judgment motion, are relied upon by the plaintiff to support their contention that despite the existence of an agreement of purchase and sale, there is no juristic reason to justify the unjust enrichment.

[44] The defendants make a fair point about the pleadings and the breadth of the plaintiff’s allegations made on this motion for summary judgment. That said, it is indisputable that how the Da Costas and Mr. Barberio interacted at the time the transfer was completed, will be a crucial issue in this litigation.

[45] I find that this issue cannot be resolved on this summary judgment motion. I require a trial in order to make the requisite factual findings about this relationship and how the transaction took place. There are serious credibility issues that I cannot resolve without one. The plaintiff strongly challenges the Da Costas’ credibility. They point to the video taken of Mr. Barberio’s home. They point to the cross-examination on their affidavits. They point to the evidence of Ms. Fava about her meeting with them. The defendants put forth explanations that they say can meet any of the concerns raised by the plaintiff. I find that there are a number of intertwining factual issues dependent upon credibility findings that cannot be made without hearing viva voce evidence. Although the record is an extensive one, it would not be fair or just to make such findings on a written record.

[46] I will further point out that the narrative of how the transfer of the property unfolded and how Mr. Barberio is alleged to have come to the view that he did not knowingly agree to it, is important in this case and requires live witnesses to help me properly appreciate it. It is obvious that both parties are alleging undue influence on a vulnerable man. From the plaintiff’s side, they argue that pressure was put on a sick and ailing old man to get him to sign the documents transferring the property. From the defendants’ position, they argue that it was the executors and the beneficiaries of the will who unduly influenced Mr. Barberio, who was suffering to some degree from dementia, in such a way that led to this rift between the Da Costas and Mr. Barberio; influence caused perhaps by hope of some form of financial gain from this cause of action.

[47] I believe the comments of Lauwers J.A. in Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450 are particularly relevant in this case (at para. 44):

What happened here illustrates one of the problems that can arise with a staged summary judgment process in an action where credibility is important. Evidence by affidavit, prepared by a party's legal counsel, which may include voluminous exhibits, can obscure the affiant's authentic voice. This makes the motion judge's task of assessing credibility and reliability especially difficult in a summary judgment and mini-trial context. Great care must be taken by the motion judge to ensure that decontextualized affidavit and transcript evidence does not become the means by which substantive unfairness enters, in a way that would not likely occur in a full trial where the trial judge sees and hears it all.

[48] In my view, the credibility issues cannot be determined on the affidavits, documents, and transcripts. To do so would permit entry into the action of that substantive unfairness that Lauwers J.A. referred to.

[49] Let me address another point made by the Da Costas. In this case, a considerable focus has been put on the lack of corroboration of the plaintiff’s witnesses. Section 13 of the Evidence Act, R.S.O. 1990 c. E.23 requires such corroboration. To put it succinctly, the Da Costas argue that there is no genuine issue requiring trial since any conflicting evidence presented by the plaintiff on the motion comes mainly from Mr. Marchioni, Mr. Giorgio Barberio, and Mr. Lucente, all three being caught by the corroboration requirement of s. 13. The Da Costas submit that no such corroborative evidence exists in this case. Thus, the plaintiff’s action can be dismissed.

[50] Let me deal with the plaintiff’s response. First of all, the plaintiff argues that no corroboration is required since s. 13 only applies when it is used as a shield and not a sword; in other words, where the estate is being sued and not when it is suing. I disagree. This is contrary to the plain wording of the section. The Ontario Court of Appeal in Brisco Estate v. Canadian Premier Life Insurance Co, 2012 ONCA 854 at para. 61, holds that it applies to both situations. This is a finding of law that will apply to the trial.

[51] More persuasively, the plaintiff argues that there is independent circumstantial evidence that corroborates Mr. Marchione, Mr. Giorgio Barberio, and Mr. Lucente’s evidence. The evidence relied upon is outlined in para. 227 of the plaintiff’s factum. In Brisco Estate, the court approved of the definition of corroboration found in s. 13 by Watt J., as he then was, at para. 65:

[65] In Sands Estate v. Sonnwald, [1986] O.J. No. 478, 9 C.P.C. (2d) 100 (H.C.J.), Watt J. considered at some length the nature of the corroboration requirement in s. 13. He held, at p. 110 C.P.C., that "corroboration should be such as to enhance the probability of truth of the suspect witness' evidence upon a substantive part of the case raised by the pleadings". As he pointed out, at p. 119 C.P.C.:

[S]everal pieces of circumstantial evidence, taken together, may potentially corroborate the evidence of an opposite or interested party, notwithstanding that each item or piece of evidence viewed in isolation may not be so capable, provided that cumulatively the pieces or items satisfy the test of corroboration, that is to say, independent evidence which renders it probable that the evidence of an opposite or interested party upon a material issue is true.

[52] I find that there is merit to the plaintiff’s position. At this point, to be clear, I am not saying that the plaintiff witnesses’ are in fact corroborated by the circumstantial evidence. Rather, there is sufficient corroborative evidence to find that despite s. 13, there is a genuine issue requiring a trial. The summary judgment motion cannot be decided on this basis as argued by the Da Costas. Furthermore, a number of the items listed as corroborative by the plaintiff require factual findings based upon conflicting evidence where credibility of the witnesses needs to be determined. Indeed, the evidence of Mr. Marchione, Mr. Giorgio Barberio, and Mr. Lucente’s accounts about Mr. Barberio’s hearsay statements that he did not sign any transfer of the property, have been challenged by the defendants. These witnesses’ credibility has been put in issue as well.

[53] Before finishing this issue, I note that none of the parties identified an agreed admission with respect the hearsay statements made by Mr. Barberio or brought any motion that the hearsay statements of Mr. Barberio could be admissible under any common law exception to hearsay or under the principled approach. The principled approach to the admissibility of hearsay evidence can be applied on a summary judgment motion: (As for instance in Dawson v. Halpenny Insurance Brokers Ltd., 2017 ONSC 4487 at paras. 25 – 32; C.A.S. of Ottawa v. J.B., 2016 ONSC 2757). As I have found favour for the plaintiff on summary judgment, I will refrain from saying more about this except to say that such issues will need to be properly resolved before trial.

[54] This leads me to the consideration of the second step of the summary judgment test. I find that it is not right that I use my expanded fact-finding powers. I find it would be against the interests of justice to do so. First of all, as noted, the credibility issues are not confined to one or two witnesses. There are a number of witnesses that I need to hear from. In addition, the fact-finding in this case is best done by hearing a narrative told by the witnesses in person rather than going through the transcripts. Resolution of credibility and appropriate weighing of the evidence cannot be done on a written record or by a mini-trial, hearing from a small number of witnesses. Secondly, what is at stake is important. It is not just money or property itself. The Da Costas’ good name is questioned. They also have a house that they have spent time and money on since the transfer. From the plaintiff’s perspective, it is not just about retrieving the rightful assets of the decedent, but ensuring the integrity of his legacy and righting any past wrongs. A just result in this case, depends upon having a trial. Finally, in terms of timeliness, affordability, and proportionality, let me say this. A trial date has been set. Much discovery and preparation has already been done. I will continue as the trial judge and a case management judge as required. A trial here can be done in a timely manner and will be proportional and affordable.

[55] I also note that another factor against using an enhanced fact-finding power here is that if summary judgment is granted dismissing the action against the Da Costas, the action will still continue against Mr. Welman. To prove the action against Mr. Welman, causation needs to be shown. In other words, the plaintiff must still prove that the transfer of the property was invalid and thus, Mr. Welman’s negligence caused the plaintiff to suffer damages. Thus, to grant summary judgment will not end the proceedings and could lead to potentially inconsistent findings.

Is the plaintiff’s claim for punitive or general damages against the Da Costas statute barred?

[56] The relief sought by the plaintiff regarding the transfer of the property back to the plaintiff falls under the 10-year limitation period set out in s. 4 of the Real Property Limitations Act, R.S.O. 1990 c. L. 15. The Da Costas concede this. However, it is submitted that the claim for monetary damages falls under the two-year limitation period in the Limitations Act, 2002, c. 24 and is thus statute barred. The Da Costas submit that Mr. Barberio executed the transfer of the property on June 3, 2008, and at that time had knowledge of the facts giving rise to a claim in respect of the transfer. Alternatively, it is submitted that Mr. Barberio, Mr. Marchioni, Mr. Lucente, and Mr. Giorgio Barberio knew about the transfer by August 30, 2009, by which time the claim was surely discovered. They submit that the plaintiff has failed to displace the statutory presumption that the claim was discovered and thus, summary judgment should be granted on this basis.

[57] Let me start by stating the obvious. The Da Costas are seeking partial summary judgment in this regard and not full summary judgment. Part of the claim they acknowledge will continue as it falls under the 10-year limitation period.

[58] Some of the considerations in determining whether partial summary judgment should be granted were considered in Butera v. Chown, 2017 ONCA 783 paras. 29 to 35:

The caution expressed pre-Hryniak in Corchis is equally applicable in the post-Hryniak world. In addition to the danger of duplicative or inconsistent findings considered in Baywood and CIBC, partial summary judgment raises further problems that are anathema to the stated objectives underlying Hryniak.

First, such motions cause the resolution of the main action to be delayed. Typically, an action does not progress in the face of a motion for partial summary judgment. A delay tactic, dressed as a request for partial summary judgment, may be used, albeit improperly, to cause an opposing party to expend time and legal fees on a motion that will not finally determine the action and, at best, will only resolve one element of the action. At worst, the result is only increased fees and delay. There is also always the possibility of an appeal.

Second, a motion for partial summary judgment may by very expensive. The provision for a presumptive cost award for an unsuccessful summary judgment motion that existed under the former summary judgment rule has been repealed, thereby removing a disincentive for bringing partial summary judgment motions.

Third, judges, who already face a significant responsibility addressing the increase in summary judgment motions that have flowed since Hryniak, are required to spend time hearing partial summary judgment motions and writing comprehensive reasons on an issue that does not dispose of the action.

Fourth, the record available at the hearing of a partial summary judgment motion will likely not be as expansive as the record at trial therefore increasing the danger of inconsistent findings.

When bringing a motion for partial summary judgment, the moving party should consider these factors in assessing whether the motion is advisable in the context of the litigation as a whole. A motion for partial summary judgment should be considered to be a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost effective manner. Such an approach is consistent with the objectives described by the Supreme Court of Canada in Hryniak and with the direction that the Rules be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

Lastly, I would observe the obvious, namely, that a motion for partial summary judgment differs from a motion for summary judgment. If the latter is granted, subject to appeals, it results in the disposal of the entire action. In addition, to the extent the motion judge considers it advisable, if the motion for summary judgment is not granted but is successful in part, partial summary judgment may be ordered in that context.

[59] In this case, I see no utility to granting summary judgment on the defence that raises the two-year limitation period. The action will not be dismissed against the Da Costas given the 10-year limitation period for the return of the real property. Secondly, the claim for damages is essentially an alternative claim to the return of the property. While punitive damages are also being sought, the basis for this will largely depend upon any factual findings based upon the behavior of the Da Costas towards Mr. Barberio. This I already have determined is one which requires a trial and that a trial cannot be avoided by using my fact-finding powers.

[60] The defendants argue that to grant summary judgment would release Rosa Da Costa from the litigation. I do not see it that way. While it is only Jose Da Costa on title, both Da Costas have testified that they are the owners of the property. The circumstances of this case support a finding that Rosa has a beneficial interest in the property as a married spouse of Jose. It would work an injustice to dismiss all the claims against Rosa Da Costa as she has a continuing legal interest in the outcome of the litigation.

[61] In addition to this, when Mr. Barberio became aware of the material facts on which the cause of action is based or ought to have discovered them by the exercise of reasonable diligence, is a matter of dispute and will depend upon important credibility findings. It is submitted by the plaintiff that Mr. Barberio was not aware that he had transferred his property at a 1/3 of its value. The plaintiff’s witnesses aver that when spoken to, Mr. Barberio had said he did not transfer the property. I appreciate the substantial evidence that exists that supports a finding that he did. However, the totality of the circumstances including his health, his lack of facility with English, and whatever influence the Da Costas wielded over him, may support a finding that the transfer date should not be the commencement of the limitation period. In this, the credibility of the Da Costas as well as the plaintiff’s evidence will play an important role.

[62] The success of this limitation period defence will thus depend upon the credibility assessments and factual findings that will need to be made at trial. In Cook v. Joyce, 2017 ONCA 49 at para. 96, the court refused to exercise its enhanced fact-finding power on partial summary judgment dealing with a limitations issue and said this (at para. 96-97):

I recognize that litigants often resort to motions for partial summary judgment to decide limitation defences. However, partial summary judgment motions operate in tension with the general policy of the rules that separate hearings on one or more issues should only occur with the consent of the parties: r. 6.1.01. While a useful tool in some cases, partial summary judgment motions create their own challenges for the fair adjudication of disputes. For example, this court has cautioned that partial summary judgment may not be appropriate where it risks duplicative or inconsistent findings: Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2016 ONCA 922, [2016] O.J. No. 6319, at paras. 37 and 38.

In the present case, granting partial summary judgment on the settlement issue would risk an unfair result by placing in watertight compartments the assessment of the parties' credibility on the two key issues -- whether an assault occurred and whether they settled their dispute. Since the trier of fact's view of the credibility of the parties on one issue may well influence his or her view on the other, the parties' credibility on the two issues should be assessed together, not separately.

[63] In terms of the date of August 30, 2009, there are again disputed facts regarding what took place as Mr. Marchione began to uncover the claim. This will be assessed as I analyze the limitations defence raised by Mr. Welman. While I appreciate that the limitations defence by Mr. Welman is different in nature from that of the Da Costas in that the focus of that claim is solicitor’s negligence, it is my view that there are sufficient common credibility assessments that make the granting of partial summary judgment inappropriate.

[64] There is another issue raised by the evidence at this summary judgment motion that pertains to the limitation period. This is whether the “stand-still” agreement tolls the limitation period. This agreement was in effect between the Da Costas and the plaintiff from September 17, 2009 to March 11, 2010. If the limitation period began on the date of the transfer, June 3, 2008, the effect of the stand-still agreement is irrelevant to the assessment of whether the claims are statute barred. If the period began at some later period, for instance, when Mr. Marchione became involved, it is much more relevant since if the stand-still agreement tolled the limitation period, then the claim will have been commenced well within the 2-year limitation period. I appreciate that there are strict requirements for tolling of the limitation period and that the agreement does not expressly refer to the limitation period: PQ Licensing S.A. v. LPQ Central Canada Inc., 2018 ONCA 331 at para. 40. Given my finding that this case must go to trial, I will refrain from commenting further on the interpretation and the effect of the stand-still agreement. This can be determined along with the other issues at trial.

[65] At this point, looking at this litigation as a whole, I see no valid basis for granting partial summary judgment on the limitations issue.

If Mr. Welman acted negligently, did his negligent action(s) cause the plaintiff any damages?

[66] To establish liability on the part of Mr. Welman, the plaintiff must establish causation. The test for causation is the “but for” test on a balance of probabilities; in other words, that the injury would not have occurred but for the negligence of the lawyer: Pilotte v. Gilbert, 2016 ONSC 494.

[67] Mr. Welman argues that there is no issue requiring trial since the allegation that he negligently permitted Mr. Barberio to close the sale of his property for less than the fair market value and failed to protect his interest is completely answered by Ms. Fava’s evidence that she met with Mr. Barberio alone on or about May 13, 2008, and advised him against the transaction. In short, it is submitted that regardless of how negligent Mr. Welman’s advice and actions were, it would not have made any difference since Mr. Barberio would still have sold his property to the Da Costas on the terms that he did. The fact that he did so, despite Ms. Fava’s advice, shows that the plaintiff cannot prove that but for Mr. Welman’s negligence, the plaintiff would not have suffered the injury that he did.

[68] To assess this argument, one must first start with the pleadings of the plaintiff. The plaintiff alleges that he suffered damages due to Mr. Welman’s negligence in the amount of $250,000. The following are the allegations against Mr. Welman; as set out in paragraph 11 of the statement of claim:

11. The Plaintiff states that the Defendant Allen P. Wellman breached his retainer with the decedent and was negligent in his representation, particulars of which include but are not limited to the following:

a) he failed to properly, or at all, advise the decedent of his rights in respect of the Transfer;

b) he failed to analyze all of the facts surrounding the Transfer, including the value of the property being transferred and the price for which it was being transferred, thereby depriving the decedent of the fair market value of his home;

c) he failed to protect the decedent’s interest in respect of the value of his property;

d) he failed to ensure that the decedent appreciated the nature of the documentation he was executing and the effect of the documents in respect of the property’s interest;

e) he failed to exercise the degree of skill and care of a reasonable lawyer.

[69] On this motion for summary judgment, the plaintiff relies upon the expert report of Reuben Rosenblatt, Barrister and Solicitor, who opines that Mr. Welman fell below the standard of care of a reasonably competent solicitor in the manner in which he represented Mr. Barberio in the sale of his property. In that report, Mr. Rosenblatt identified a number of areas where, in his opinion, Mr. Welman’s representation and advice were deficient: 1) in Mr. Welman’s review and advice about the agreement of purchase and sale given that Mr. Welman was aware of Ms. Fava’s view; 2) the acknowledgement and direction signed by Mr. Barberio which provided for the transfer to the Da Costas jointly when the actual transfer was to Jose Da Costa alone without getting Mr. Barberio’s consent to this change; 3) Mr. Welman’s failure in properly advising Mr. Barberio about the deficiencies of the Da Costas’ undertaking to take care of Mr. Barberio for life; 4) Mr. Welman’s acceptance of the inadequate letter of Dr. Kumar, Mr. Barberio’s family physician, about Mr. Barberio’s capacity; and 5) Mr. Welman’s failure to properly explain the risks of what Mr. Barberio wished to do in the transfer of his property and signing a power of attorney for property in favour of Rosa Da Costa and failing to properly canvas better options with him.

[70] In my view, with respect to causation there is a genuine issue requiring a trial. I have come to this conclusion for a number of reasons:

• To some extent, the causation problem raises a difficult but unavoidable problem. To satisfy the “but for” test, the plaintiff will have to prove that Mr. Barberio would have acted differently had he not received negligent advice and representation from Mr. Welman. Applied to the specifics of this case, it must be proven that Mr. Barberio would not have sold his house to the Da Costas at all or on the terms that he did including the amount of the sale price. This is difficult obviously because Mr. Barberio cannot give evidence himself. Determining what he would have done will depend upon the inferences the trier of fact must make based upon the whole of the evidence, including the circumstantial evidence.
• As I see it, the fact that Mr. Barberio did continue with the transaction despite being advised against it by Ms. Fava just shortly before the completion of the transaction is an important piece of circumstantial evidence to consider on this issue. But it is only one piece of evidence. Reliance upon this one piece of evidence alone is not fair, just, or in the interests of justice. I am unable to make that determination on the written record and it requires a trial to resolve.
• To properly assess causation, the complete matrix of the factual circumstances must be considered. This includes exactly what transpired between the Da Costas and Mr. Barberio both before and during the sale transaction and what Mr. Welman knew or ought to have known about this in accordance with the standard of care expected of a reasonably prudent solicitor. It will also depend upon the nature of the advice given by Ms. Fava as compared to what Mr. Welman did. This will depend upon findings of fact that cannot justly be made on a summary judgment motion; findings which I have already concluded must be made at a trial in order to arrive at a fair and just disposition. For instance, if it is found that the transfer of the property to the Da Costas was a valid one, then regardless of Mr. Welman’s negligence, he would not be liable for any damages.
• In addition, to properly assess causation, the trier must determine exactly what the nature and degree of the negligence committed by Mr. Welman was. To find that the plaintiff would not have suffered the damages but for the negligence of Mr. Welman, significantly depends on those factual findings. In other words, the question of whether proper legal advice and representation would have made a difference in Mr. Barberio’s decision to transfer the property depends upon exactly what Mr. Welman’s negligence was.
• It is far too simplistic a position to grant summary judgment on the proposition that Mr. Welman’s negligence made no difference without knowing the complete picture of that negligence. For instance, it is equally logical that Mr. Barberio would have reconsidered his position to transfer the property if two rather than just one lawyer advised against it. In other words, a second opinion could have made a difference. Given the nature of the evidence led at this motion, such a determination cannot be made without hearing witnesses, making credibility assessments and deciding between conflicting evidence.
• In addition, this issue will require expert evidence. This is another factor to consider in determining whether summary judgment is proportionate. I appreciate that the parties must put their best foot forward, but it is entirely conceivable that at the trial of this case, Mr. Rosenbloom’s evidence will not be left unchallenged.

[71] I further find that a trial cannot be avoided by using my powers under Rule 20.04. It is against the interest of justice to do so. To do so would not lead to a fair and just result and will not serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole. I have already referred to some of the factors that I have considered above.

Is the claim against Mr. Welman statute barred?

[72] Section 4 of the Limitations Act sets out the basic limitation period of two years from the date a claim is discovered. Section 5(1) holds that a claim is discovered and the limitation period runs from the date that the plaintiff first knew or should have known by the exercise of reasonable diligence that the injury, loss, or damage was caused or contributed to by an act or omission of the defendant and that a legal proceeding would be an appropriate means to seek to remedy it. Section 5(2) provides a rebuttable presumption that a claim is discovered on the day that the act or omission on which the claim is based took place. The onus in on the plaintiff to rebut this presumption.

[73] For the following reasons, I find that there is a genuine issue requiring trial and it would not be fair or just to use my expanded fact-finding powers.

[74] The key issue here is discoverability. When did the plaintiff discover his claim against Mr. Welman? I note that this limitation period defence shares some facets of the limitation defence raised by the Da Costas but as I will explain, there are also some important dissimilarities.

[75] In Lawless v. Anderson, 2011 ONCA 102 at para. 23, the following was stated:

Determining whether a person has discovered a claim is a fact-based analysis. The question to be posed is whether the prospective plaintiff knows enough facts on which to base an allegation of negligence against the defendant. If the plaintiff does, then the claim has been "discovered", and the limitation begins to run: see Soper v. Southcott (1998), 39 O.R. (3d) 737 (C.A.) and McSween v. Louis (2000), 132 O.A.C. 304 (C.A.).

[76] Mr. Welman submits on this motion that the plaintiff discovered the claim of negligence against Mr. Welman shortly after the transaction closed on June 3, 2008, but certainly no later than September 1, 2009, when his counsel Mr. Marchioni put the Da Costas on notice on August 31 and September 1, 2009, that he would be bringing an application to set aside the transfer as one obtained improperly and for improper consideration.

[77] The plaintiff responds that there are a number of matters that require a trial when it comes to the limitation period defence of Mr. Welman. Firstly, he submits that Mr. Welman committed a fraud during the course of the closing of the agreement of purchase and sale in June of 2008. He submits that Mr. Barberio only signed an acknowledgment and direction to Mr. Welman to transfer his property to both Rosa and Jose Da Costa. The actual transfer was made only to Jose Da Costa without Mr. Welman obtaining a new acknowledgement and direction from Mr. Barberio to this effect. Given that this was therefore a fraudulent conveyance, the limitation period does not apply. Alternatively, it is submitted by the plaintiff that the claim was only discovered by Mr. Barberio when Mr. Marchioni obtained Mr. Welman’s file with respect to this matter which was in late September 2009. Even when this was obtained, the file was not complete as it was only later that Mr. Welman provided the letter from Ms. Fava which highlighted the concerns regarding the transfer. It is submitted that the complete file was required before the claim was discovered. It is further submitted that Mr. Welman committed another fraud by actively trying to conceal his fraud by not providing the complete file. The plaintiff relies upon the equitable doctrine of fraudulent concealment to suspend the limitation period.

[78] For the purpose of this summary judgment motion, it is only necessary for me to say this. It could be properly argued that when Mr. Barberio went to see Mr. Marchioni and had discussions with him that he knew or should have known that whatever injury he suffered at the hands of the Da Costas, that a legal action was the appropriate remedy to take to address this (for clarity sake, I am not making a finding in this regard on this point).However, I remain of the view it is a genuine issue requiring a trial whether he knew or ought to have known at this point in time that Mr. Welman conducted himself negligently, the result of which Mr. Barberio sustained an injury from those acts (as opposed to any actions of the Da Costas). From the plaintiff’s perspective, without knowing what Mr. Welman did or did not do during the transaction, the claim against him would not have been discoverable. Furthermore, until Mr. Marchioni received the file from Mr. Welman, Mr. Barberio would not have known that a lawsuit against Mr. Welman was the appropriate remedy to take. Thus, until that file was obtained and investigated, Mr. Barberio’s claim was not discovered as against Mr. Welman. According to the evidence on this summary judgment motion, this would have been sometime during the third week of September 2009. On this scenario, the statement of claim was issued within the two-year limitation period.

[79] As noted in Lawless v. Anderson, in some medical malpractice cases it has been recognized that in order to discover that they have a claim, plaintiffs may require advice from a person who is medically trained. Similarly, in some cases, plaintiffs will require access to their medical records and charts in order to become apprised of the facts necessary to discover their claim.

[80] Likewise when it comes to negligence actions against lawyers, clients may need advice from someone legally trained and/or may need access to their legal file, before they are sufficiently apprised of the material facts to discover their claim. To put another way, plaintiffs may be in possession of sufficient material facts to sue somebody, but without more, they may not be in possession of the material facts to know or ought to know to sue their own lawyers as well for negligence. In this case, a trial is required to determine the issue of whether the limitation period did not begin to run until Mr. Marchioni received Mr. Welman’s file, and that the plaintiff did not nor could he have known with reasonable diligence that he suffered an injury at the hands of Mr. Welman, as well as at the hands of the Da Costas.

[81] I wish to emphasize that I am not making this determination. As noted at the beginning of the motion, the plaintiff does not seek summary judgment. Mr. Bisceglia maintains a consistent position that a trial is required on all issues.

[82] I will just state that on this record, I find that that the plaintiff has not met the test for summary judgment on this motion on the basis that the claim is statute barred.

[83] Although not necessary to do so, I am also persuaded that the issues of fraud alleged against Mr. Welman will require an assessment of Mr. Welman’s credibility. In my view, this too requires viva voce evidence. It cannot be done on a written transcript. Particularly in this case where the credibility of so many witnesses is being challenged by both sides and the credibility assessments on different issues are so co-mingled.

[84] Finally, with respect to the second step of the Hryniak analysis, likewise, on this issue, I am not satisfied that a trial can be avoided by using my expanded fact-finding powers. I have made previous comments before as to why I find that their use will not lead to a fair and just result in this case. The assessment of credibility is important in this case; important to the limitations issue as well as other issues. The trial date is set. It will be heard on other matters. While I am mindful of the effort and expense already expended by the parties, even keeping in mind affordability and proportionality concerns, it serves the interest of justice that I hear the totality of the case against all defendants at a trial on the merits.

If some of the claims are amenable to summary judgment, is it appropriate to grant partial summary judgment?

[85] I have found that the test has not been met for summary judgment for the claims. Even if some of the claims are amenable to summary judgment, (and I think of the claim of the Da Costas on the basis of the limitations period), it would not be appropriate to grant partial summary judgment.

[86] The summary judgment motion is therefore dismissed.

[87] If the issues of costs cannot be resolved between the parties, I will entertain written submissions, each one limited to two pages excluding any attachments (any Bill of Costs, Costs Outline, and authorities). The plaintiff shall file within 20 days of the release of these reasons. The defendants shall file within 10 days thereafter. There will be no reply submissions without leave of the court.

Justice S. Nakatsuru

Released: October 17, 2018

Reasons for Judgment

COURT FILE NO.: CV-11-434462 DATE: 20181017

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

THE ESTATE OF GUIDO BARBERIO, by his Executor, Mauro Marchioni Plaintiff/Responding Party – and – JOSE DA COSTA, ROSA DA COSTA, and ALLEN P. WELMAN Defendants/Moving Parties

REASONS FOR JUDGMENT

NAKATSURU J.

Released: October 17, 2018