Court File and Parties

COURT FILE NO.: CV-13-493578 DATE: 20181102

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

TERESA SCALAMOGNA and LILIANNA SIGGILLINO, Plaintiffs – and – ROSANNA DI TORO, EGIDIO DI TORO, 1416134 ONTARIO LIMITED, 2377544 ONTARIO INC., DANIELA DI TORO, ROBERT DI TORO and MAURIZIO OCCHIUTO, Defendants

Counsel: Cameron Fiske and David Cassin, for the Plaintiff Lilianna Siggillino Brian N. Radnoff and Meredith E. Jones, for the Defendants Rosanna Di Toro, Egidio Di Toro and Daniela Di Toro Alan S. Price for the Defendants, Robert Di Toro and 2377544 Ontario Inc.

HEARD: August 17, 2018

Cavanagh J.

Reasons for Judgment

Introduction

[1] This action involves a dispute among sisters in relation to the transfer in 2008 of a family farm that was owned by their parents.

[2] In 2013, the plaintiffs, Liliana Siggillino and Teresa Scalamogna, sued their sister, Rosanna Di Toro, and other members of her family. They allege in this action that Rosanna Di Toro misrepresented the nature and value of the farm property to them, and convinced them to sell their interests for far less than they were worth, so that both Rosanna and her husband could profit from the property. The action by Teresa Scalamogna has been settled as against the defendants other than Maurizio Occhiuto.

[3] In these reasons, I will refer to the three sisters by their first names, for convenience.

[4] The defendants Rosanna, her husband Egidio Di Toro, and their daughter Daniela Di Toro move for summary judgment dismissing Liliana’s action as against them on the ground that there is no genuine issue requiring a trial in relation to whether the action is statute barred. The defendants Robert Di Toro (Rosanna’s adult son), 2377544 Ontario Inc., and 1416134 Ontario Limited also move for summary judgment dismissing Liliana’s action against them on the same ground.

[5] Liliana and the defendant Maurizio Occhiuto have agreed that they will be bound by the disposition of these motions including any appeals, and that a separate motion for summary judgment need not be brought by Mr. Occhiuto.

[6] The outcome of these motions turns on whether there is a genuine issue requiring a trial in relation to when Liliana first read a property valuation report that she obtained in 2008 from Colliers International of the land that comprises the farm property.

[7] For the following reasons, I conclude that there is no genuine issue requiring a trial with respect to Liliana’s claim. The moving parties’ motions for summary judgment are granted and Liliana’s action is dismissed on the ground that it is statute barred.

Background Facts

Parties

[8] Rosanna, Liliana and Teresa are sisters. Their mother is Filomena Siggillino. Daniela and Robert are Rosanna’s adult children. Egidio is Rosanna’s husband.

[9] 1416134 Ontario Limited and 2377544 Ontario Inc. are companies which carried on business as land/property development companies. Robert is the president of 1416134 and 2377544. 1416134 filed an assignment in bankruptcy on August 12, 2013.

[10] The defendant Maurizio Occhiuto is a lawyer who provided legal advice to Rosanna, Liliana, Teresa and Filomena in relation to the farm property at 13940 Airport Road, Caledon, Ontario (the “Property”).

The Property

[11] Filomena and her late husband purchased the Property in 1976 as joint tenants. Filomena acquired sole ownership of the Property on her husband’s death in 1997. Prior to the transfer at issue in this action, the Property consisted of approximately 47 acres of undeveloped agricultural-zoned land in Caledon, Ontario.

The Transfer

[12] It had always been Filomena’s intention to leave the Property to her three daughters to benefit equally.

[13] On July 16, 2008, Rosanna, Liliana and Teresa executed a quitclaim deed transferring the Property, on Filomena’s behalf pursuant to a power of attorney, to 1416134 (the “Transfer”). Prior to the Transfer, 1416134 registered a mortgage on the Property in the amount of $750,000. As part of the Transfer, Filomena terminated her interest in the Property in exchange for a forgiveness of the mortgage debt. At or around the same time, mortgage funds in the total amount of $750,000 were advanced directly, in equal shares, to Rosanna, Liliana and Teresa. In this way, each sister received $250,000 for her one-third interest in the Property.

Valuations of the Property

[14] Prior to the transfer of the Property, Robert sought three independent valuations which valued the Property at between $650,000 and $750,000. Liliana’s evidence in her July 14, 2014 affidavit is that prior to the transfer of the Property, Rosanna represented that she had three appraisals confirming that the Property was properly valued at $13,000 per acre, but that Liliana and Teresa had not seen or been provided with a copy of these valuations.

[15] On or about July 30, 2008, Liliana sought and obtained an independent valuation report from Colliers International which valued the Property at between $50,000 to $55,000 per acre or $2,340,000 and $2,574,000 for the entire parcel. The answer to the question of when Liliana first read this 2008 Colliers report is central to this motion.

[16] Liliana obtained another appraisal of the value of the Property from Colliers dated April 25, 2013. In this valuation report, Colliers valued the Property at its April 2013 value at $60,000 to $70,000 per acre.

2013 Action

[17] Liliana and Teresa commenced this action (the “2013 Action”) by way of statement of claim issued on November 25, 2013. In their action, Liliana and Teresa allege that Rosanna misrepresented the nature and value of the Property to them, and convinced them to sell their interests for far less than they were worth, so that both Rosanna and Egidio could profit from the Property.

[18] In their statement of claim, Liliana and Teresa seek an order that the Property was transferred to Rosanna in breach of a fiduciary duty that she owed to them, and they seek the recovery of the Property, or an order that two-thirds of the proceeds from the sale of the Property (representing the one third interest of each sister) is held in trust for them.

2015 Action

[19] Filomena was not a party to the 2013 Action.

[20] On or about November 26, 2015, Filomena commenced a separate action related to the Property (the “2015 Action”). The defendants were Liliana, Teresa, the Di Toro family members, and 2377544. In this action, Filomena pleaded that she did not intend to transfer the Property and that she was the rightful owner. Filomena seeks a return of the Property to her, and a CPL pending the disposition of the action.

[21] The defendants to the 2015 Action have all defended the action.

Procedural history

[22] The following is a summary of the procedural history of the two actions:

a. In the summer of 2014, the Di Toro defendants, 1416134, 2377544 and Robert brought a joint motion under r. 21.01(1)(b) to strike out the statement of claim in the 2013 Action. b. In response to this motion, Liliana swore an affidavit on July 14, 2014. c. The motion to strike out the statement of claim was dismissed by Firestone J. in an endorsement dated October 16, 2014. The defendants’ motion for leave to appeal the decision of Firestone J. was dismissed by Lederer J. on February 9, 2015. d. The Di Toro defendants, with the defendants 1416134, 2377544 and Robert, who were jointly represented by the same law firm at the time, defended the 2013 Action by statement of defence dated July 17, 2015. e. Mr. Occhiuto has not defended the 2013 Action. Mr. Occhiuto has an outstanding Rule 21 motion before the court. No date has been set for the return of this motion. f. In the 2013 Action, Teresa and Liliana brought a motion for, among other things, leave to obtain and register a certificate of pending litigation (“CPL”) on the Property. In support of this motion, Liliana swore an affidavit on July 22, 2015. g. On August 5, 2015 Master Short granted the motion that was brought by Teresa and Liliana for leave to obtain a CPL on terms that it could be vacated upon the payment of $1,500,000 into court. This order was not appealed. h. On or about October 22, 2015, Filomena brought a motion in the 2013 Action seeking an order adding her as a plaintiff in the action. Filomena abandoned this motion and, instead, commenced the 2015 Action. i. In late 2015, 2377544 brought a motion in the 2013 Action for an order approving the sale of the Property to third party purchaser and a declaration that the CPL would be vacated upon payment into court of $1,500,000. j. In the 2015 Action, Filomena brought a motion for a CPL on the Property. k. In response to 2377544’s motion, Liliana relied upon her three affidavits that were sworn October 28, 2015, March 21, 2016, and March 23, 2016. l. In her March 23, 2016 affidavit, Liliana gave evidence regarding a letter and email written by her in 2013 and sent to Rosanna and other members of the Di Toro family. m. On April 21, 2016, Liliana was cross-examined on her affidavits sworn for the motions. n. On June 10, 2016, Diamond J. dismissed Filomena’s motion for a CPL and granted the relief sought by 2377544. o. The sale of the Property to a third party purchaser closed in or around July 26, 2016. The purchase price was $6.9 million. In accordance with Master Short’s Order, $1,500,000 of the proceeds were paid into court. p. On December 19, 2016, Belobaba J. dismissed a further motion brought by some of the Di Toro defendants under rule 21.01(3)(d) to dismiss the 2013 action as an abuse of process. q. On November 2, 2017, Teresa’s claims in the 2013 Action against Rosanna, Egidio Di Toro, 1416314, 2377544, Daniela Di Toro and Robert Di Toro were settled and the action was dismissed as against these defendants, on consent, without costs. As part of this settlement, Teresa’s crossclaim against the same defendants in the 2015 Action was dismissed, on consent, without costs.

[23] This motion for summary judgment was brought by Rosanna, Egidio Di Toro and Daniela Di Toro by notice of motion dated June 18, 2018.

Analysis

[24] This action was commenced by Liliana and Teresa by statement of claim issued on November 26, 2013.

[25] The issue on this motion is whether summary judgment should be granted dismissing the action on the ground that there is no genuine issue requiring a trial in relation to whether Liliana’s claim is statute-barred under the Limitations Act, 2002, S.O. 2002, c. 24, Sch B (the “Act”). The answer to this question depends on whether I am satisfied that there is no genuine issue requiring a trial in relation to whether Liliana has discharged her onus to prove that her claim was discovered no earlier than two years before her statement of claim was issued.

[26] The moving parties submit that I should use the powers in r. 20.04(2.1) and make a finding that Liliana’s statements (made or adopted in five affidavits sworn before her July 4, 2018 affidavit and in her unsworn 2013 letter) that she read the Colliers report in 2008 when she obtained it should be preferred to the contrary evidence (given in response to questions asked during parts of her cross-examination in 2016 and in her July 4, 2018 affidavit) that she first read the Colliers report in April 2013. The moving parties alternatively submit that I should not accept any of Liliana’s evidence, in which case she would not have satisfied her evidentiary burden under the Act. In the further alternative, the moving parties submit that I should find that Liliana ought to have been aware of her claim before April 2013 through the exercise of reasonable diligence and that, for this reason, her action is statute barred.

[27] Liliana relies upon her evidence that she read the 2008 Colliers valuation report for the first time in April 2013 and that this report made it clear that she had been deceived out of approximately $750,000. On this basis, Liliana submits that her claim was discovered in April 2013, well within the statutory limitation period. Liliana submits that for me to grant summary judgment because of her prior inconsistent statements on this issue would not be proper on the evidentiary record that is before me, and that a trial is required. Liliana relies upon her July 14, 2018 affidavit and the affidavits of her daughter sworn July 3, 2018 and her common law spouse sworn July 4, 2018, as well as the affidavit of a lawyer at the firm that represents her setting out the procedural history of the 2013 Action and the 2015 Action.

Test for Summary Judgment

[28] Pursuant to r. 20.04 (2) (a) of the Rules of Civil Procedure, the court shall grant summary judgment where it is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence. Pursuant to r. 20.04(2.1), in making this determination, the court shall consider the evidence submitted by the parties and may weigh evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence, unless it is in the interest of justice for such powers to be exercised only at trial.

[29] In Hryniak v. Maudlin, 2014 SCC 7 the Supreme Court of Canada addressed the new powers conferred pursuant to r. 20.04(2.1) and (2.2) of the Rules of Civil Procedure:

[57] On a summary judgment motion, the evidence need not be equivalent to that at trial, but must be such that the judge is confident that she can fairly resolve the dispute. A documentary record, particularly when supplemented by the new fact-finding tools, including ordering oral testimony, is often sufficient to resolve material issues fairly and justly. The powers provided in Rules 20.04(2.1) and 20.04(2.2) can provide an equally valid, if less extensive, manner of fact-finding.

[58] This inquiry into the interest of justice is, by its nature, comparative. Proportionality is assessed in relation to the full trial. It may require the motion judge to assess the relative efficiencies of proceeding by way of summary judgment, as opposed to trial. This would involve a comparison of, among other things, the cost and speed of both procedures. (Although summary judgment may be expensive and time-consuming, as in this case, a trial may be even more expensive and slower.) It may also involve a comparison of the evidence that will be available at trial and on the motion as well as the opportunity to fairly evaluate it. (Even if the evidence available on the motion is limited, there may be no reason to think better evidence would be available at trial.)

[59] In practice, whether it is against the “interest of justice” to use the new fact-finding powers will often coincide with whether there is a “genuine issue requiring a trial”. It is logical that, when the use of the new powers would enable a judge to fairly and justly adjudicate a claim, it will generally not be against the interest of justice to do so. What is fair and just turns on the nature of the issues, the nature and strength of the evidence and what is the proportional procedure.

[30] Pursuant to r. 20.02 (2), a responding party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in an affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial. The responding party is not entitled to sit back and rely on the possibility that more favourable facts may develop for trial. The responding party must put its “best foot forward”: Sweda Farms v. Egg Farmers of Ontario, 2014 ONSC 1200 at para. 32.

The Limitations Act and when a claim is discovered

[31] The Act provides in s. 4 that “[u]nless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered”. The Act provides in s. 5(1) and s. 5(2):

5(1) A claim is discovered on the earlier of,

(a) the day in 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 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.

[32] In Johnson v. Studley, 2014 ONSC 1732, Perell J. addressed the onus of proof on a plaintiff where a limitation period defence is raised:

When a limitation period defences raised, the onus is on the plaintiff to show that its claim is not statute-barred and that it behaved as a reasonable person in the same or similar circumstances using reasonable diligence in discovering the facts relating to the limitation issue. That the onus is on the plaintiff accords with the presumption in s. 5(2) of the Act that a person with a claim shall be presumed to have discovered the claim on the day the act or omission on which the claim is based took place, unless the contrary is proved.

[33] The day the act on which Liliana’s claim is based took place is July 16, 2008 when the Property was transferred from Filomena to 1416134 pursuant to a quitclaim deed that was executed on Filomena’s behalf by Teresa, Liliana and Rosanna in consideration for a mortgage advance of $250,000 to each of the three sisters. By virtue of s. 5(2) of the Act, Liliana is presumed to have discovered her claim on July 16, 2008. Liliana’s action in respect of her claim was commenced on November 26, 2013, after the second anniversary of the day on which Liliana is presumed to have discovered her claim. Liliana’s action is, therefore, presumptively statute-barred.

[34] The onus is on Liliana to rebut the presumption that she discovered her claim on July 16, 2008: Sutton v. Balinsky, 2015 ONSC 3081 at paras. 9 and 117-118. Because she started her action on November 26, 2013, the onus is on Liliana to prove that her claim was discovered no earlier than two years before this date.

Review of the relevant evidence

[35] Liliana has sworn six affidavits that are before me on this motion. Liliana was cross-examined on two occasions, on April 21, 2016 and on July 24, 2018, on her affidavit evidence. I review this evidence below.

Liliana’s July 4, 2018 affidavit

[36] Liliana relies upon her affidavit sworn on July 4, 2018 in response to this motion. In this affidavit, Liliana swears to the truth of the following statements:

a. The Colliers Report dated July 30, 2008 was not opened until April 2013. b. Liliana swore previous affidavits and was cross-examined on them. Liliana appended as exhibits to her July 4, 2018 affidavit five affidavits sworn July 14, 2014, July 22, 2015, October 28, 2015, March 21, 2016 and March 23, 2016. She states that she repeats and relies upon all of her affidavits delivered in this case. c. As a supplement to her affidavits on which she was already cross-examined and upon which she continues to rely, Liliana provides additional documentation with respect to the problems that she and her common-law partner suffered at 619 Clinton Street, Toronto. According to this affidavit, this is a property that Liliana’s common-law partner, Agostino Piccin, purchased in or about October 2012 through Egidio and through Robert, acting under his business name, Stonebrook Homes. Liliana’s evidence is that there were deficiencies at this property and that it was “in complete shambles”, and that she became very suspicious of the DiToro family after this home that was purchased by Mr. Piccin was in a “state of disarray”. d. Liliana relies upon her March 23, 2016 affidavit which extensively discusses the letter that she wrote in April 2013. Liliana’s affidavit states that she wrote this letter in a moment of “extraordinary anger” when she realized that she had been “duped” by Rosanna and the DiToro family. She confirms that she has already been cross-examined on the comments that she made in that letter. e. With respect to paragraphs 24 and 25 of her July 14, 2014 affidavit, Liliana states paragraph 24 must be read with paragraph 25. She states that the drafting of this affidavit was done by her former lawyer and “the wording is a bit confusing”. Liliana states that, to clarify, she highlights “that whole context of these paragraphs was a reflection of what I learned in 2013”. She highlighted [in bold type] “the passage of that affidavit which was supposed to make that clear”:

24. In what seems peculiar now but was not pointed out then, the legal meeting involved all three sisters…

25. … I sought an independent valuation of the property in 2008. I was no (sic) scient in the valuation of real estate, the valuation provided seemed inconsistent with the three valuations that my sister had assured us had all aligned with her professional view that the property was encumbered and worth much less than would otherwise be the case. I naively felt that a professionally designated sister would not deceive us regarding the family farm. Teresa was not advised of the valuation.

f. With respect to the 2008 Colliers report, Liliana’s affidavit contains the following statements:

10. In 2008 I requested information with respect to the Family Farm because the adjacent property was up for sale at that time. When I received mail from Colliers in July 2008, I did not open it. I trusted my sister Rosanna as I have already deposed to. I felt ashamed that I had even requested the Colliers information because it might have suggested that I was doubting my sister so I put it aside. With hindsight, I regret that I did not open the envelope in July 2008. The whole notion that this claim is time-barred is patently absurd. Had I opened the 2008 Colliers Report back in 2008, I would have started a lawsuit then. Who would sit back for five years and allow themselves to be knowingly ripped off out of hundreds of thousands of dollars by their own sister?

11. In fact, it was my partner Gus who opened the envelope from Colliers in April 2013, which was still sealed. It is fortunate that I had not thrown out the envelope containing what I now understand to be the 2008 Colliers Report. Gus opened the sealed envelope because we were dealing with all of the deficiencies at 619 Clinton Street and our suspicions were heightened at that time.

Liliana’s July 14, 2014 Affidavit

[37] The relevant statements from Liliana’s July 14, 2014 affidavit (which are partially reproduced in the passages from her July 4, 2018 affidavit that I have quoted above) are:

23. Teresa and I had at that time (and still) very little exposure to or experience with lawyers. Maurizio Occhiuto presented us with documents to sign. He asked us if we knew what we were signing. He did not provide us with any explanation whatsoever as to what we were signing. He did not walk us through them. He did not explain what affect they had upon our legal rights. He did not provide us with a copy of anything we signed. To this day, neither of us are clear as to the terms of what we signed, why we signed them or the consequences of such exercise upon our rights.

24. In what seems peculiar now but was not pointed out then, the legal meeting involved all three sisters even though Teresa and I were transferring our property rights to Rosana, the latter having not only supplied her lawyer at her expense, but also was acting as agent, seller and purchaser. Perhaps that confusion in roles and interests is what led Rosana to interject feverishly that “they [her sisters] know what they’re signing”. We did not. Neither Rosana nor Mr. Occhiuto explained anything; rather, they simply insisted that we execute the documents.

25. The total amount of time expended in what I believe was a complicated legal process whereby I ostensibly surrendered significant legal interests and rights was 10 minutes. I sought an independent valuation of the property in 2008. I was not scient in the valuation of real estate, the valuation provided seemed inconsistent with the three valuations that my sister had assured us had all aligned with her professional view that the property was encumbered and worth much less than would otherwise be the case. I naively felt that a professionally-designated sister would not deceive us regarding the family farm. Teresa was not advised of the valuation.

26. From that period forward, Teresa and I both felt regretful that we were forced to sell our interests in the family farm, but were begrudgingly accepting that we had been paid what we were advised was in excess of fair market value for what we were advised was an inferior tract of land. Notwithstanding a valuation that seemed to differ, Rosanna insisted that she had overpaid.

27. I first became suspicious in April 2013, because of another commercial interaction with the DiToro family. My life-partner, Gus Piccin, and I purchased a home that was being built by the DiToro family. They were the builder, contractor and vendor of the home, located at 619 Clinton St. in Toronto, Ontario.

[38] Liliana addresses in subsequent paragraphs of her July 14, 2014 affidavit the deficiencies at the Clinton property and her loss of confidence in Rosanna to resolve these issues, her requests for copies of the appraisals for the Property that Rosanna had claimed she received, her meeting with the lawyer, Mr. Occhiuto, after feeling that she might have been “duped”, and her request of Rosanna for a copy of the land transfer documents.

[39] Liliana makes it clear in this July 14, 2014 affidavit that she knows that the limitation period is a live issue, and she made statements addressing this issue:

45. It was only in 2013, and only then, that I had the shocking revelation that my sister Rosana had indeed used her power over me to breach my trust and confidence in her and to manipulate Teresa and I to relinquish our rights and interest in the property based upon misrepresentation and deceit, even to the point of using her legal counsel to facilitate our surrender of those rights without independent legal advice.

46. By her own words and admission, Rosana referenced the passing of two years in what I now anticipate to be an apparent reference to a limitation period of which I was unaware but about which she appears to have been acutely so.

47. It was not until 2013 when (a) in his office and with my mother in attendance, Mr. Occhiuto confirmed Rosana’s improper motivation and conduct, and his apparent but perplexing disgust at such conduct; and (b) Rosanna then confirmed to me by her reticence, recalcitrance and misrepresentation regarding (i) a bogus reference to privacy regarding providing documents to me that should have been provided contemporaneously, and (ii) mockingly referring to two years and homework, that I first became aware that I had a claim against the defendants.

48. It was at that point that I first knew that the loss and damage had occurred, that that loss and damage was caused by or contributed to by an act or omission on the part of the defendants, and that a legal proceeding would be an appropriate means by which to remedy it.

49. I am advised by legal counsel that it is incumbent upon me to demonstrate that a reasonable person with the abilities and in the circumstances first should have known that the damage or loss had occurred, was caused by an act or omission, and this proceeding could be brought. In this my affidavit and under oath, I repeat and swear that I trusted my sister Rosana as my sister and my real estate advisor and agent, and that I assumed that my interests were being protected by her and her lawyer Mr. Occhiuto. It was only when the DiToros unexpectedly caused loss and damage to me in the context of my home purchase from them that I had a revelation that, unbelievably, my sister and her family were prepared to purposefully and intentionally deceive me and my sister Teresa for purposes of their own greed and profit.

[40] The words “[i]n what seems peculiar now but was not pointed out then” that are highlighted in Liliana’s July 4, 2018 affidavit relate to Liliana’s statement in her July 14, 2014 affidavit that the meeting in 2007 with Mr. Occhiuto involved all of the three sisters, even though Liliana and Teresa were transferring their property rights to the other sister, Rosanna, who was acting as agent, seller, and purchaser. Liliana describes this in her July 14, 2014 affidavit as a “confusion in roles and interests”.

[41] Liliana was cross-examined on her July 4, 2018 affidavit on July 24, 2018 and she gave this evidence in respect of statements made in her July 14, 2014 affidavit:

62. Q. All right. So we have dealt with this second paragraph 10 and the correction and clarification of paragraph 25 of your July 2014 affidavit. And you agree with me … And, again, these affidavits are all listed in the second paragraph 4 in your July 2018 affidavit. So, with respect to the affidavits that are set out there in that second paragraph 4, you have not corrected or clarified any other paragraph in any other affidavit that is set out in the second paragraph 4?

A. No, not to my knowledge, I haven’t.

63. Q. Okay. And you agree with me that, to the extent that there was any other paragraph in either that July 2014 affidavit or any other affidavit listed in paragraph 4, you had the opportunity to do so, to provide any corrections or clarifications in this July 2018 affidavit?

A. Yes.

[42] On this cross-examination on July 24, 2018, Liliana was asked to confirm that paragraph 26 of her July 14, 2014 affidavit is accurate and she responded “[i]f taken in context, yes, it is accurate”. Liliana was not asked in re-examination to provide any further explanation for the “context” that she had said is needed in order for paragraph 26 of her affidavit to be accurate.

Liliana’s July 22, 2015 and October 28, 2015 affidavits

[43] In her July 22, 2015 affidavit, Liliana swore to the truth of the following statements:

7. On or about July 30, 2008, after I had executed the quitclaim deed, I obtained an appraisal report from Colliers which indicated the value of the property to be somewhere between $50,000.00 and $55,000.00 per acre. Attached herein as Exhibit “C” is a true copy of the report.

8. Until I retained my former lawyer, Mark Ellis, I did not know that the term fiduciary duty applied to Rosanna, as a professional real estate agent, and that she had a duty to act truthfully and not to deceive me. So, when I obtained a valuation from Colliers in July 2008, valuating the land at $55,000.00 per acre, I was very upset but unaware that I could do anything about it.

[44] The July 22, 2015 affidavit was sworn one week after the statement of defence of the DiToro defendants was served in which they specifically plead that the plaintiffs’ claims are statute barred.

[45] Liliana also swore an affidavit on October 28, 2015. In paragraph 2 of that affidavit, she swore that she relied on her July 22, 2015 affidavit.

[46] When Liliana was cross-examined on July 24, 2018 on the statement in paragraph 8 of her July 22, 2015 affidavit that she “obtained a valuation from Colliers in July 2008, valuating the land at $55,000.00 per acre” she was asked whether paragraphs 7 and 8 of this affidavit are accurate. She responded “[y]es, if taken in context”. She did not provide any additional context for these statements by which she explained how her statements made in her July 22, 2015 affidavit, that were confirmed in her October 28, 2015 affidavit, that she obtained a valuation report from Colliers in July 2008 that valued the land at $55,000 per acre could be true and, at the same time, her statement in her July 4, 2018 affidavit that the 2008 Colliers valuation was unopened until April 2013 could also be true. There was no re-examination through which Liliana was asked to explain this context.

[47] Liliana was cross-examined on April 21, 2016 and she gave the following evidence:

51 Q. Did you do any independent checking of your own to see whether or not the information that was being communicated to you was, in fact, correct?

A. I did eventually as a very spontaneous act. I was driving up Airport Road one day and I noticed the land adjacent to my mother’s property was for sale and I requested a valuation. The valuation came in, I tossed it to to (sic) the side. I looked at it. I didn’t understand it and it stayed tossed to the side up until I realized that I got duped on the house that we purchased, my partner and I, in December 2012.

52 Q. Sorry. You tossed this valuation aside and you didn’t look at it for six years?

A. Yes.

53 Q. And who did that valuation?

A. It was the same person who I requested another one from in Colliers that is very familiar with the Caledon area.

54 Q. Just one second. Are you talking about the July 30th, 2008 valuation by Colliers?

A. Yes.

[48] Liliana was asked at question 86 on her cross-examination on July 24, 2018 whether her answer to the question asked at question 51 of her earlier cross-examination was accurate, and she responded “It is, taken in context”.

[49] Later in her cross-examination on April 21, 2016, Liliana gave the following evidence with respect to the Colliers valuation:

276 Q. Now, when you read this it was quite obvious that you would’ve seen that they put a valuation of the property of 50 to 55-thousand per acre or 2,340,000 or 2,574,000 for the entire parcel, yes?

A. I did not go through this document when I received it.

277 Q. I’m sorry?

A. I did not go through this document when I received it.

278 Q. You didn’t read it?

A. No. I just saw that I had it and I put it aside. I did not read it.

279 Q. I’m sorry. What do you mean you saw when you had it; you put it aside. I don’t understand that?

A. I received it in the mail and I put it aside. I did not look at it.

280 Q. Never?

A. No. I looked at it only when I became very suspicious about my sister.

281 Q. In 2013?

A. Correct.

[50] Liliana answered other questions on her April 21, 2016 cross-examination responding that she showed her partner the 2008 Colliers valuation report that she had kept and not opened.

[51] Liliana did not explain when she gave this evidence why she had testified earlier, on the same day, that she looked at the Colliers valuation when it came in, that she did not understand it, and that she tossed it to the side. This evidence conflicts directly with the evidence that Liliana gave that she did not open or read the Colliers valuation until 2013. The conflict called for an explanation, but none was given. There was no re-examination.

[52] When Liliana was cross-examined on July 24, 2018, she was asked to confirm that she had not corrected or clarified any portions from the April 2016 transcript, and she answered that this was correct.

Liliana’s March 21, 2016 affidavit

[53] In Liliana’s affidavit sworn on March 21, 2016, at paragraph 9, she states that she relies upon her affidavit dated October 28, 2015 that was appended as an exhibit to her affidavit as well as her July 22, 2015 affidavit. By making this statement, Liliana adopted as sworn evidence the statements that she had made in these earlier affidavits.

Liliana’s 2013 letter to Rosanna and her March 23, 2016 affidavit

[54] Robert DiToro swore an affidavit on March 22, 2016. In this affidavit, he referred to an undated letter sent by Liliana, likely in 2013 according to Robert, which refers to matters that occurred in 2007, 2008, and 2013. The letter was marked as an exhibit to his affidavit. According to Robert’s affidavit, the letter was provided to him by his counsel who found the letter while he was reviewing documents in another action that Robert and his brother have against Teresa.

[55] In this 2013 letter, Liliana made, among others, the following statements:

Dear Rosanna DiToro, my sister (readers... In case you forgot)

I didn’t think I would be revealing this, as I’ve kept it to myself for all these years. However, here it goes. I have in my possession a land evaluation of mommy and daddy’s farm dated July 30, 2008. Less than one year after you gave us what we thought was a fair market value for our share of our inheritance. The document I now possess was prepared by experts who are very familiar with land value and Caledon, namely Sandhill were mommy and daddy’s farm is located.

I decided to look into this for my own satisfaction and secondly because mommy was constantly asking both Teresa and I why our portions were worth so little. Mommy knew that the parcel of land was worth so much more.

These conversations between me and mom happened after we were convinced (by you and your husband) that our family farm was worth so little.

When I received my report that I requested from the specialists of the area the year after, to my surprise, the report indicated that in 2006 through 2007 the value ranged between $50K - $55K per acre. The portion due to be inherited by all 3 sisters was a total of 46.81 acres, equally divided into 1/3 portions per sister.

I have known since 2008 that property similar to ours sold for $50,000 per acre in 2006 (1 year prior to you screwing us) and $55,000 per acre in 2007 (the same year that you screwed us). We should have been given $55,000.00 per acre - which translates to $2,574,550.00 for 46.81 acres! – NOT $16,000.00 per acre like what we received!

The sad part of this is that you two thieves are never satisfied because you screwed me out of another $80,000 on the house that I foolishly purchased from you in October 2012. And to tell you the truth, this incident is what prompted the farm inheritance investigation. You know the saying, “the last straw that broke the camel’s back?” While here it is, that $80K is what did it! My original intentions were not to let these documents surface, given that I’ve kept them to myself since July 30, 2008. I was trying to keep peace in the family.

But when I saw how you screwed us on this last “deal” I basically said FUCK IT. Enough is enough; I’m going public with the farm and how we got screwed over by our own sister! [Emphasis in original]

[56] Liliana provided evidence in respect of this letter in a supplementary affidavit that was sworn on March 23, 2016. In this affidavit, Liliana explained that when she wrote the letter, she was understandably upset. In paragraphs 8 and 9 of this affidavit, Liliana addressed the question of when she read the 2008 Colliers valuation:

8. … As aforementioned in my pleadings in the Brampton court file number, which I now state in response to Robert Di Toro’s affidavit, I did not understand what the 2008 valuation meant since I trusted Rosanna’s representations. She was my real estate agent. Her representations were that the property was worth $750,000. …

9. It was not until April 2013 that I learned that Rosanna Di Toro had completely misstated the value of the property when she told us that it was worth a mere $750,000 in total back in 2008. …

[57] There was no suggestion in either the 2013 letter or Liliana’s March 23, 2016 affidavit that the 2008 Colliers valuation remained unopened until 2013, or that statements in Liliana’s 2013 letter to the contrary were untrue.

[58] Liliana was asked about her 2013 letter when she was cross-examined on April 21, 2016 and she gave the following evidence:

449. Q. And it says as follows starting at the first paragraph, “I have known since 2008 that property similar to ours sold for 50-thousand per acre in 2006 one year prior to you screwing us and 55-thousand per acre in 2007 the same year that you screwed us.” What did you mean by making this statement?

A. This statement came about because I was embarrassed that I didn’t know this ahead of time. So I wanted to kind of give myself some power here and obviously it was written and it went on deaf ears. She didn’t seem to give a damn.

450. Q. So you, again, were not making a true statement. This was a lie?

A. Again, yes. A white lie.

451. Q. Because although you said you’ve known since 2008 –

A. Due to embarrassment because I had the documentation and I didn’t read it.

452 Q. I see but you were attempting to make them believe that you knew it since 2008 but never raised the issue with them?

A. Correct.

642 Q. You would agree with me, madam, and that you are quite prepared to tell lies when you believe it will suit your purpose?

A. In this particular case, yes.

643 Q. And in the other cases that you admitted to telling white lies in answer to questions asked by Mr. Price, correct?

A. What? That I was trying to get a reaction from my sister?

644 Q. You already told us under oath that you told white lies, correct?

A. Yes. That was a clear white lie.

645 Q. Well, you admitted there were more than one, correct?

A. They repeated themselves if you paid attention to what was written.

[59] Liliana gave evidence that she had lied when she made other statements in her 2013 letter in relation to when she read the 2008 Colliers valuation report (she described each as a “white lie”). See the transcript of her cross-examination on April 21, 2016 at questions 453 to 456 and at questions 637 to 647.

[60] Liliana was also cross-examined in respect of her 2013 letter on July 24, 2018. She gave the following evidence:

169. Q. Okay. Then if we turn to 248, which is the next, and the second paragraph on that, you write at the beginning of that paragraph:

“… When I received my report that I requested from the specialists of the area the year after, to my surprise the report indicated that, in 2006 through 2007, the value ranged between 50,000 to 55,000 per acre …”

So my question is, was that accurate at the time you wrote it?

A. In April 2013, which is when this all came to light, yes, it was accurate in April 2013.

170. Q. What you wrote was accurate in April 2013?

A. Exactly, when I learned of this.

171. Q. I’m just asking … My question is very simple. The sentence I just read, when you wrote it in April 2013, it was accurate?

A. Yes.

172. Q. Okay. The next, 249 of the record, top paragraph:

“… I have known since 2008 that property similar to ours sold for 50,000 per acre in 2006, one year prior to you screwing us, and $55,000 per acre in 2007, the same year that you screwed us …”

Again, at the time you wrote that sentence that I’ve just read, that was accurate?

A. In 2013, yes, that was accurate.

173. Q. Then, page 250, under the heading “So get back what is rightfully ours”… I’m not sure if it is a heading or just an all caps, bolded sentence, but under that sentence, the next paragraph, the last sentence in that paragraph:

“… My original intentions were not to let these documents surface. Given that I’ve kept them to myself since July 30, 2008, I was trying to keep peace in the family …”

The portion I’ve just read, at the time that you wrote it, it was accurate?

A. 2013 is when I wrote the letter in anger. I was very upset, I was embarrassed, and I was very foolish that I did not open the envelope. So I wanted Rosanna to understand that I was not stupid and that’s the reason why this letter was written in this manner.

174. My question is more specific. The portion I’ve just read, which I’m happy to read again, at the time you wrote that, that was accurate?

MR. FISKE: Asked and answered.

[175-194: Exchanges between counsel]

195. Q. The sentence that I read:

“… My original intentions were not to let these documents surface. Given that I’ve kept them to myself since July 30, 2008, I was trying to keep peace in the family …”

Do you agree with me that that was accurate at the time you wrote it?

MR. FISKE: And the position that I have … I have made the objection, is that she did answer that question.

[61] Liliana’s answer to question 173 was that she did not open the envelope containing the 2008 Colliers report when she received it. This answer must be taken to mean that the portion of the 2013 letter that was read to her was not accurate when she wrote it, even though she did not respond directly to the question that was asked.

[62] There was no re-examination in order to elicit evidence that would clarify the apparently conflicting answers.

[63] Although on this cross-examination on July 24, 2018 Liliana answered several questions by saying that what she wrote in 2013 was accurate in 2013, I take from her answers that she was trying to say that she only knew the content of the Colliers valuation report in 2013. By giving her answers in an indirect and non-responsive way, I find that Liliana was trying not to admit that she made untrue statements in her 2013 letter and, at the same time, she was trying to maintain consistency with the conflicting statements made in her July 4, 2018 affidavit that she only read the 2008 Colliers report in 2013.

Evidence of Cristienne Aceto

[64] Ms. Aceto is Liliana’s daughter. She provided her affidavit as evidence of Liliana’s character, including that it would be out of character for Liliana, if she had known of the contents of the Colliers report in 2008, to have kept that information to herself for several years.

[65] Ms. Aceto acknowledges that she does not know when her mother discovered that the Property was allegedly worth more than the money she received for it in 2008.

[66] I do not regard Ms. Aceto’s affidavit to be helpful for the resolution of the issues on this motion for summary judgment and I do not see a need to address it further.

Evidence of Agostino Piccin

[67] Liliana also relies upon the evidence of Augustino Piccin, her common-law spouse. Mr. Piccin’s evidence is that around February 2013 he began to question everything that the DiToro family had ever done with Liliana or him following significant problems with respect to the property that he purchased at 619 Clinton St. that was built by Egidio and sold to him through Robert. His evidence is that sometime around March or April 2013, he encouraged Liliana to look through her files to see if there were other dealings that she had with the DiToro family, and that Liliana discovered that she had an unopened envelope from Colliers from 2008. Mr. Piccin’s evidence is that Liliana handed the unopened sealed envelope from Colliers to him and that he opened it and reviewed it. Upon reviewing the Colliers report, he told Liliana that she had been ripped off by her family and that he was going to make an appointment with his lawyer to see if she had a case against her own family. A lawsuit was issued a few months later. There was no cross-examination on this affidavit.

No affidavit evidence from the moving parties

[68] The moving parties have not tendered evidence from a witness with personal knowledge who can say that Liliana read the 2008 Colliers valuation report in 2008, when she received it. Liliana asks me to draw an adverse inference from the fact that the moving parties did not deliver affidavits. I see no basis upon which to draw such an inference, since the moving parties do not have personal knowledge of when Liliana read the 2008 Colliers report.

Assessment of the evidence

[69] The evidence on this motion is conflicting. The conflicting evidence is not, however, as is frequently the case, inconsistent evidence from two or more witnesses tendered by opposing parties who offer different versions of relevant events. The conflict arises from the evidence of Liliana herself, through her evidence on her cross-examination on April 21, 2016 and in her July 4, 2018 affidavit in which she contradicts sworn evidence that she gave or adopted in five previous affidavits sworn July 14, 2014, July 22, 2015, October 28, 2015, March 21, 2016 and March 23, 2016, and unsworn statements that she made in her 2013 letter.

[70] Because of the conflicting evidence given by Liliana, the evidentiary record is such that I am not able to determine if there is a genuine issue requiring a trial without using the fact-finding powers in r. 20.04(2.1) of the Rules of Civil Procedure. In determining whether there is a genuine issue requiring a trial, I must consider whether it is in the interest of justice for me to exercise the powers conferred pursuant to r. 20.04 (2.1) to weigh the evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence.

[71] If this action were to proceed to trial, there would be yet another occasion, the ninth occasion (six prior affidavits and two cross-examinations), on which Liliana would be called upon to give sworn evidence with respect to a fact that is within her knowledge and in respect of which she has given extensive evidence, that is, when she first read the 2008 Colliers report. Given the substantial evidentiary record that is before me on this motion, a trial judge would be in no better position to make the necessary findings in this respect. Liliana has put her best foot forward in her evidence on this motion. In my view, nothing would be gained by having Liliana’s evidence given again, and tested again on cross-examination, at a trial.

[72] In this regard, I consider and endorse the following comments made by Dunphy J. in Sutton v. Balinsky at para. 113:

The Limitations Act is a statute of repose and the policy of the Act is that claims barred by it should not be subject to further inquiry. By its very nature, a limitation period bids the meritorious claim to sleep undisturbed alongside the meritless. Reserving judgment on a limitations defence until after a full trial has subjected the parties to a thorough investigation into the merits of a claim that the Limitations Act has decreed should be allowed to rest undisturbed defeats the policy of the Limitations Act to a degree. If the facts underlying an allegation that the action is barred under the Limitations Act can properly be brought as a summary judgment motion under Rule 20.04 of the Rules of Civil Procedure, it seems to me to advance the policy of the Act to do so and the interests of justice will tend to weigh against requiring a trial in such circumstances. That is not to say that every case should necessarily proceed by way of summary judgment without first ascertaining whether justice can be done in doing so or whether a trial is necessary. I do however suggest that it is appropriate to recognize the public policy underlying the Limitations Act when making the decision as to whether the interests of justice require a trial and consider it as a factor to be weighed. A factor to be considered does not rise to the level of presumption. Neither plaintiff nor defendant interests are served by undergoing a lengthy trial on numerous issues when the entire matter could potentially be resolved by a consideration of only a few. The policy of the Limitations Act is thus a factor but cannot be presumed to be the controlling one in considering the requirements of justice in a particular case.

[73] I am satisfied that the substantial evidentiary record before me, evaluated using the powers in r. 20.04(2.1), is such that I am able to reach a fair and just decision on the question of whether the moving parties have shown that there is no genuine issue requiring a trial with respect to Liliana’s claim. In this case, the interest of justice does not require that the powers in r. 20.04(2.1) be exercised only at a trial.

[74] It is clear from paragraphs 23 to 26 of Liliana’s July 14, 2014 affidavit that Liliana sought an independent evaluation of the Property in 2008. Although she states in the second paragraph 10 of her July 4, 2018 affidavit that she “requested information with respect to the Family Farm”, her statements in this paragraph are clear that the purpose of obtaining the Colliers report was to investigate the accuracy of Rosanna’s statements concerning the value of the Property. Liliana’s evidence in her July 14, 2014 affidavit is that the valuation that was provided to her at that time “seemed inconsistent” with the three valuations that Rosanna had obtained. She could not have known this unless she read the Colliers report. There is no statement or suggestion in Liliana’s July 14, 2014 affidavit that she did not read the Colliers valuation that was provided in 2008 until 2013. The statements that Liliana made in paragraphs 23-26 of her July 14, 2014 affidavit conflict directly with the statements made in paragraphs 3, 10 (first), 10 (second), and 11 of her July 4, 2018 affidavit.

[75] Liliana submits that the relevant context that explains the contradictory evidence is evidence to which she referred in her July 4, 2018 affidavit, that in April 2013 she learned that her common-law partner had been deceived by the Di Toro defendants with respect to the 619 Clinton Street home that he had purchased, and that Liliana then questioned the Property purchase for the first time. The fact that Liliana had a separate dispute with the Di Toro family in respect of the Clinton Street property that came to a head in 2013 does not explain why she would have provided affidavit evidence, or adopted evidence already given, in 2014, 2015 and 2016 that she had read the 2008 Colliers report when she received it, or why she wrote in her 2013 letter that she read the Colliers report in 2008. This explanation of “context” does not resolve the conflicts in Liliana’s evidence.

[76] When Liliana’s July 14, 2014 affidavit was sworn, she knew that the limitation period was a live issue. If, in truth, Liliana did not open the 2008 Colliers report until 2013, the time to say so was when she first addressed the limitation period issue. Instead, Liliana took a different approach in her affidavit with respect to the limitation period issue, and gave evidence that, although she read the 2008 Colliers report in 2008 when she obtained it, she trusted her sister as her sister and her real estate advisor and agent, and that she assumed that her interests were being protected by Rosanna and her lawyer. The context that Liliana provides in her July 4, 2018 affidavit, the problems with the Clinton Street property, was also relied upon in her July 14, 2014 affidavit to explain how she later had a “shocking revelation” that her sister and her family were prepared to deceive her “for purposes of their own greed and profit”. I do not find it to be credible that Liliana would somehow mistakenly have given untrue evidence that is harmful to her legal position when she first addressed the limitation period issue in 2014. If Liliana truly read the 2008 Colliers report for the first time in 2013, she surely would have said so when she was confronted squarely with the limitation period issue and addressed it in paragraphs 45-50 of her July 14, 2014 affidavit.

[77] In her July 22, 2015 affidavit, Liliana gave evidence that she obtained the 2008 Colliers valuation report on or about July 30, 2008. She states that this report indicated that the value of the Property was between $50,000 and $55,000 per acre. Liliana states in her affidavit that she was “very upset” when she obtained this valuation in July 2008, but she was unaware that she could do anything about it. Liliana relied upon this affidavit in her October 28, 2015 affidavit and again in her March 21, 2016 affidavit. Liliana could not have been very upset when she obtained the 2008 Colliers report unless she had read its contents in 2008. The statements to the contrary that Liliana made in her July 4, 2018 affidavit conflict directly with her evidence given in these three affidavits, but she offered no explanation in her most recent affidavit for having made these statements her July 22, 2015 affidavit and having adopted them in two subsequent affidavits.

[78] Liliana submits that her 2013 letter was written and distributed in a moment of unbridled rage and pain and that it cannot be taken to be anything more than an emotional outburst. I disagree. There is no question that the letter appears to have been written at a time when Liliana was very angry and upset. The letter is clear, however, that Liliana read the 2008 Colliers report when she received it in 2008. I do not regard the fact that Liliana was angry and upset when the letter was written as a credible explanation for why she would have made untrue statements about when she read the 2008 Colliers report. I do not accept Liliana’s submission that because the 2013 letter was written when she was angry and upset, I should simply disregard it.

[79] In addition, almost three years after the 2013 letter was written, Liliana swore an affidavit on March 23, 2016 in which she gave evidence with respect to this 2013 letter and stated that “I did not understand what the 2008 valuation meant since I trusted Rosanna’s representations”. This explanation, that she trusted her sister, is the same explanation that Liliana gave in her July 14, 2014 affidavit for why she took no action in 2008 after obtaining the Colliers report. Liliana did not say in her March 23, 2016 affidavit that she left the 2008 Colliers report unopened until 2013. Her evidence that she did not understand what the 2008 valuation meant can only mean that she read the Colliers report in 2008.

[80] Liliana gave answers on her cross-examination on April 21, 2016 to try to explain several statements in her 2013 letter that she read the 2008 Colliers report when she received it in 2008. She described these unsworn statements in her letter as “white lies” told out of embarrassment that she did not know the information in 2008, when she obtained the first Colliers valuation report. Liliana did not explain why she had given directly conflicting evidence earlier that day in when she answered that she looked at the Colliers report when she received it, did not understand it, and tossed it aside. Liliana would have had no reason to say that she had read the 2008 Colliers report in 2008 if the truth was that she only read it in 2013. I do not regard her explanation that she was embarrassed and, for this reason, lied in her 2013 letter about having known of the contents of the 2008 Colliers report since 2008, to be credible.

[81] Liliana did not say when she was cross-examined on July 24, 2018 that her sworn statements made or adopted in five affidavits also included untrue statements. In fact, she states in her July 4, 2018 affidavit that she repeats and relies upon her five earlier affidavits. However, Liliana sidestepped questions when she was asked on cross-examination to confirm the truth of statements made in her July 14, 2014 affidavit and her July 22, 2015 affidavit that she read the Colliers report in 2008 when she obtained it. She did so by agreeing that the statements were true, and adding the qualifying words “if taken in context”. It is clear to me that Liliana used these qualifying words when she was confronted on cross-examination with the contradictory evidence she had given in an attempt to avoid admitting that she had repeatedly given sworn affidavit evidence that conflicts with the evidence in her July 4, 2018 affidavit and, at the same time, in an attempt to avoid the harmful effect of this evidence given in prior affidavits in which Liliana acknowledged that she had read the 2008 Colliers report in 2008, when she obtained it.

[82] It is not uncommon for a witness in a legal proceeding to give evidence that is in error, even in relation to a significant matter in the litigation. When this occurs, the witness may be able to correct the error in his or her evidence in chief, on cross-examination or, sometimes, through proper re-examination. The trier of fact must then assess the evidence as a whole and make a finding on the factual matter at issue. If the witness gives a credible explanation for having initially given incorrect evidence, this may assist the trier of fact to accept the corrected testimony. In this case, however, Liliana delivered five affidavits for use in contentious legal proceedings in which she gave evidence, or adopted evidence previously given, that she had read the 2008 Colliers report in 2008 when she obtained it. When she tried to resile from this evidence, she did not offer a credible explanation for having made incorrect statements on five prior occasions, under oath, and in her unsworn 2013 letter.

[83] In the absence of a credible explanation for why Liliana gave evidence in her July 14, 2014 affidavit, and in subsequent affidavits, that she read the Colliers valuation report in 2008, evidence that affected the limitation period issue that was a live issue, and that was against Liliana’s interest, I am unable to find that there is a genuine issue requiring a trial in relation to when Liliana first read the 2008 Colliers valuation report.

[84] Having reviewed the extensive evidentiary record before me, I find that Liliana has not discharged her onus of proving that she discovered her claim in 2013 when she read the 2008 Colliers valuation report, and only then first knew that she had suffered injury, loss or damage that was caused by acts of Rosanna and other defendants. I do not accept Liliana’s evidence given at times during her cross-examination on April 21, 2016, or in her July 4, 2018 affidavit, or on her cross-examination on July 24, 2018, where this evidence contradicts her affidavit evidence given on prior occasions that she had read the Colliers 2008 valuation report when she received it on or about April 30, 2008, or where it contradicts the statements to the same effect in her 2013 letter.

[85] In my assessment of the evidence given by Liliana, I have considered Mr. Piccin’s evidence. Mr. Piccin began dating Liliana in March 2011, and he was in a relationship with Liliana when she swore her five affidavits in 2014, 2015, and 2016, and when she made her unsworn statements in the 2013 letter. Mr. Piccin arranged to retain his lawyer for the action that Liliana commenced in 2013. Mr. Piccin did not provide evidence that conflicts with the sworn statements that Liliana read the 2013 Colliers report in 2008 when she obtained it until his affidavit that was sworn on July 4, 2018, in response to this motion for summary judgment.

[86] There were many opportunities for Mr. Piccin to have provided this evidence on earlier occasions, if it were true, including at the time that Liliana first addressed the limitation period issue in her July 14, 2014 affidavit, but he did not do so. I accept that Mr. Piccin’s affidavit supports Liliana’s July 14, 2018 affidavit where she states that she only read the 2008 Colliers report after Mr. Piccin opened it in 2013. However, I prefer the evidence given by Liliana in her July 14, 2014 affidavit (that she repeated or adopted in four subsequent affidavits and in her 2013 letter) that she read the Colliers report in 2008 when she obtained it, evidence that I accept, to the evidence given by Mr. Piccin.

[87] For these reasons, I find that Liliana read the Colliers valuation report in 2008 when she received it, and there is no genuine issue requiring a trial in relation to this question. As a result of this finding, Liliana has failed to prove that her claim was discovered in April 2013. I conclude that Liliana’s claim was discovered on or about April 30, 2008, when Liliana received and read the Colliers valuation report.

When would a reasonable person with the abilities and in the circumstances of Liliana first have known of the matters in s. 5(1)(a) of the Act?

[88] The moving parties submit that even if I were to accept that Liliana did not review the 2008 Colliers report when she obtained it in July, 2008, I should find that Liliana ought to have been aware of her claim on or about April 30, 2008 through the exercise of reasonable diligence.

[89] In Sutton v. Balinsky, Dunphy J. summarized a number of principles that emerge from jurisprudence under the Act, at paras. 146-147:

[146] Our courts have developed a considerable body of case law since 2002 under the new Limitations Act and the case law under the old is still has application as regards many issues. Several themes that have consistently emerged from that jurisprudence that are of particular relevance here include:

a. It is not necessary to have all of the facts underlying the complete claim - it is enough to have sufficient facts to bring a claim: [citation omitted];

b. It is enough that the plaintiff has prima facie grounds to infer that a defendant’s actions caused or contributed to her loss even if the responsibility of each of multiple possible defendants is not yet known - certainty is not a requirement: [citations omitted];

c. “Neither the extent of damage nor the type of damage need be known. To hold otherwise would inject too much uncertainty into cases where the full scope of the damages may not be ascertained for an extended time beyond the general limitation period”: [citation omitted];

d. “error or ignorance of the law or legal consequences of the facts does not postpone the running of the limitation period”: [citation omitted].

[147] A corollary of these principles is the over-arching obligation of due diligence. Limitation periods are designed to incent claimants not to sleep on their rights. Ignorance of the law is not an excuse if the facts giving rise to legal claims are known. A party alerted to circumstances where a reasonably prudent person of similar abilities and in the same circumstances would seek professional advice must do so or risk having the claim struck as being out of time. Knowledge of the existence of damage, its source and a reasonable understanding of who is or might be expected to be responsible for some of it at least is enough.

[90] Due diligence is part of the evaluation of s. 5(1) (b) of the Act. In deciding when a person in the plaintiff’s circumstances and with her abilities ought reasonably to have discovered the elements of the claim, it is relevant to consider what reasonable steps the plaintiff ought to have taken. Whether a party acts with due diligence is a relevant consideration, but it is not a separate basis for determining whether a limitation period has expired: Fennell v. Deol, 2016 ONCA 249, at para.24.

[91] Liliana gave evidence in her July 14, 2014 affidavit that she “sought an independent valuation of the property in 2008”. In her July 4, 2018 affidavit, she states that she repeats and relies upon all of her affidavits delivered in this case. In the second paragraph 10 of this affidavit, Liliana states that in 2008 she “requested information with respect to the Family Farm because the adjacent property was up for sale at that time”. It is clear from both the July 14, 2014 affidavit and the July 4, 2018 affidavit that Liliana’s purpose in seeking an independent valuation of the Property in 2008 was to investigate whether the information that had been provided by Rosanna concerning the value of the Property was accurate.

[92] In my view, a reasonable person in Liliana’s circumstances who had requested an independent valuation report of the Property for this purpose would not have put the report aside, and left it unopened for five years. A reasonable person who was concerned that information that she had been given about the value of the Property may not have been accurate, and who requested an independent valuation report for the purpose of investigating the value of the Property, would have opened the Colliers 2008 valuation report when it was obtained. A reasonably prudent person in Liliana’s circumstances, upon discovering that the Property may have been worth much more than the amount that this person had received upon a sale of the Property, would have sought professional advice on the remedies that may have been available to him or her.

[93] Even if I had not accepted Liliana’s evidence that she read the Colliers valuation report on or about April 30, 2008 when she obtained it, and concluded that she first knew of the matters referred to in s. 5(1) (a) of the Act on that day, I would conclude that a reasonable person with Liliana’s abilities and in her circumstances first ought to have known of the matters referred to in s. 5(1)(a) of the Act on or about July 30, 2008, when Liliana obtained the Colliers report.

[94] I conclude that Liliana commenced this action after the second anniversary of the day on which her claim was discovered and, as a result, it is statute barred under the Act.

Disposition

[95] For the foregoing reasons, the motions for summary judgment are granted and Liliana’s action is dismissed.

[96] If the parties are unable to agree on costs, the defendants may make written submissions within 20 days. Liliana may make responding submissions within 20 days thereafter. The defendants may make brief reply submissions, if so advised, within five days thereafter.

[97] Liliana and Mr. Occhiuto have agreed that neither of them will be subject to costs of the summary judgment motion or any appeals arising therefrom, vis-à-vis each other, and that this agreement does not affect the liability for costs of the action apart from the summary judgment motion.

Cavanagh J.

Released: November 2, 2018

COURT FILE NO.: CV-13-493578 DATE: 20181102 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: TERESA SCALAMOGNA and LILIANNA SIGGILLINO Plaintiffs – and – ROSANNA DI TORO, EGIDIO DI TORO, 1416134 ONTARIO LIMITED, 2377544 ONTARIO INC., DANIELA DI TORO, ROBERT DI TORO and MAURIZIO OCCHIUTO Defendants REASONS FOR JUDGMENT Cavanagh J. Released: November 2, 2018