Superior Court of Justice – Ontario
RE: JEAN-PIERRE N. ASFAR and EQUITY CHEQUE CARD CORPORATION LIMITED, Plaintiffs/Responding Parties
AND:
SUN LIFE ASSURANCE COMPANY OF CANADA, SUN LIFE FINANCIAL INC. and SUN LIFE FINANCIAL CANADA, Defendants/Moving Parties
BEFORE: Justice S. Nakatsuru
COUNSEL: John Asfar Self-Represented and for Equity Cheque Card Corporation Ltd. Plaintiffs/Responding Parties
Stephen Shantz, for the Defendants/Moving Parties
HEARD: May 16, 2019
ENDORSEMENT
1Mr. Jean-Pierre Asfar lives in British Columbia. He is the principal of Equity Cheque Card Corporation Ltd. (“ECCC”) which is incorporated in New Zealand. Mr. Asfar was a principal of the company, Blanshard Manor Holdings Ltd. (“Blanshard”). Blanshard is said to have assigned its rights to ECCC. Both Mr. Asfar and ECCC are the Plaintiffs in this action that involves events that goes back over a decade.
2The Defendant, Sun Life Assurance Company of Canada (“Sun Life”) is an insurance company and financial institution with its head office in Toronto.
3The Plaintiffs have sued the Defendant. The Notice of Action was issued April 26, 2018. The Statement of Claim is dated May 28, 2018. The Plaintiffs are suing for a number of things including a so-called constructive plea of “non contendere” amounting to a settlement, a breach of contract, negligent or fraudulent misrepresentation, breach of trust, unjust enrichment, civil conspiracy, unlawful conversion, fraud etc. The action relates to five mortgages by Sun Life. It is alleged that pursuant to the mortgage terms, “Sun Life made no advances for cash or credit and instead securitized and repackaged these mortgages and derived a revenue and profit therefrom without a juristic reason.” In the Statement of Claim, the Plaintiffs attack various aspects of the mortgage process, the conditions of the mortgage, the fees and interest charged, and the profits made by Sun Life. The Plaintiffs claim them to be fraudulent, forged, deceitful, and illegal.
4Sun Life has moved to have the Plaintiffs’ action dismissed. They move under Rule 21.01(3)(d) on the grounds that the action is frivolous, vexatious, and an abuse of process. Sun Life has also moved for summary judgment on the grounds that the Plaintiffs’ claims are statute-barred.
A. A FRIVOLOUS AND VEXATIOUS ACTION
5Sun Life strongly submits this action is frivolous and vexatious. Sun Life submits that Mr. Asfar has been threatening Sun Life and its executives for a long time. They claim he is on a campaign of harassment that has taken a number of forms since 2006. This included threats to start a class action, inundating the Defendant with various nonsensical legal looking documents, publishing an allegedly libelous Class Action Notice in the Globe and Mail newspaper, threatening to disrupt an annual general meeting, and ultimately starting this action in 2018.
6My focus is more narrow under Rule 21.01(3)(d). I must focus on the Statement of Claim. The frivolous and vexatious nature of the proceedings must be apparent on the face of the claim: Riga v. Ontario Lottery and Gaming Corporation, 2018 ONCA 714; Nikou v. Kargeorgos, 2019 ONCA 83 at paras. 8-9.
7Certainly, Mr. Asfar’s pleadings share some characteristics of a frivolous and vexatious action in form and content. It does raise the suspicion that it is not a bona fide dispute and is vexatious: Van Sluytman v. Muskoka (District Municipality), 2018 ONCA 32 at para. 9; Gao v. Ontario WSIB, 2014 ONSC 6497 at paras. 15-16.
8However, I must remind myself that the law does not compel me to dismiss the Plaintiffs’ claims simply because I have difficulty in understanding all of what they claim. Mr. Asfar is self-represented. I will say that Mr. Asfar seems certainly passionate about pursuing what he believes was a wrong done to him by Sun Life. However, the way he was gone about it is fundamentally misguided. He seems to believe that by using arcane legalistic language and peppering his pleadings with twisted legal concepts, he may be more persuasive to a legal audience. But the result is that his Statement of Claim becomes incomprehensible. Plain and simple is what persuades. Ordinary and every day words that are clear. I feel that Mr. Asfar has never been given this advice. Or if he has, his mind is not open to it.
9All that said, found within the Statement of Claim are sufficiently comprehensible allegations such that I should not dismiss his action on this basis. While Sun Life may view them as outlandish and totally without credibility, on their face, they are not all frivolous or vexatious. For instance, Mr. Asfar alleges that Sun Life was not entitled in law to charge an application fee and they charged a criminal rate of interest. Another aspect of the Statement of Claim is an allegation that the Plaintiffs have a 2006 settlement agreement with Sun Life which they wish to enforce. Regardless of what one might say about the legal validity of that agreement and the surrounding nonsensical legal nomenclature that may be used by the Plaintiffs, what does come across is the Plaintiffs’ position that Sun Life should be made to abide by it. That is neither frivolous nor vexatious per se.
10As a result, I will not dismiss this action under the rule. I find it more appropriate to dispose of this action by granting summary judgment in favour of the Defendant.
A. TEST FOR SUMMARY JUDGMENT
11Pursuant to Rule 20 of the Rules of Civil Procedure, R.R.O. Reg. 194, 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.
12In 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.
13Determination of a motion for summary judgment involves a two-step approach. As stated in Hryniak at para. 66, the motions judge must:
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.
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.
14Notably, 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.
15If 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 they 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: Hryniak at para. 66.
16The 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: Hryniak at para. 57.
17A 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., 1999 664 (SCC), [1999] 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.
B. ANALYSIS
18When this claim was discovered under the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B is a key issue on this motion. Section 5 of the Act states:
5 (1) A claim is discovered on the earlier of,
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person against whom the claim is made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).
19In this case, all the claims relate to the five mortgages that the Plaintiffs had with Sun Life. The Statement of Claim acknowledges that the last of the five mortgages was discharged in 2006.
20Mr. Asfar presented his affidavit in response to the motion by the Defendants. This affidavit provides important evidence regarding when the Plaintiffs’ claims were discovered.
21I have done my best to discern what Mr. Asfar is claiming. As it can be seen, it is not entirely clear. In his affidavit, Mr. Asfar avers that between approximately December 15, 1996 and January 31, 1997, he was induced by employees or agents of Sun Life to have $2.1 million paid to his company Blanshard when no such payment had occurred in fact. Mr. Asfar then provided a security to be registered in Victoria, B.C. Mr. Asfar alleges those monies were converted by Sun Life. He received no consideration. He alleges that it was a nominal agreement that was made in the form of a wager and/or founded and made conditional on a gratuitous transfer of the assets from Blanshard to Sun Life. Mr. Asfar claims that on January 31, 1997, he was induced by Sun Life to provide credit and registration of certain securities with a nominal value of circa $10 million in favour of Sun Life under false pretenses and fraud.
22At the time, Mr. Asfar avers he was extremely busy with managing his apartment/hotels in and around Victoria. He recalls meeting with Sun Life to sign and swear the security documents but does not recall them in detail. He was under the impression it was all routine and above board.
23Mr. Asfar avers that over 10 years up until May of 2006, Blanshard paid to Sun Life an additional $3.5 million on these nominal securities.
24Material to the issue of discoverability, in paragraphs 15 - 16, Mr. Asfar states:
In or about May of 2006 it was brought to my attention the said securities and collateral documentation contained several independent defects where each independently qualifies the writing as a “false document” in fact and also under the Criminal Code and for which there are numerous and independent automatic or strict-liability consequences.
To me the said defects are obvious and obviously wrongful in and of themselves, they provided for the unearned and unjust enrichment of the owners of Sun Life and/or “the said employees/agents”, and at the commensurate expense of the victim(s) in fact (myself, Blanshard, and Harvey Richman and his company Premier Holdings Ltd). There is no doubt in my mind that the acts that I committed, by signing and providing for the registration of the writings/securities at the behest of the “the said employees/agents” of Sun Life, were wrongful and offensive to equity and to multiple provisions of the criminal law.
25In my view, based on these paragraphs, there is no doubt that Mr. Asfar was aware in May of 2006 that he suffered loss or damages by Sun Life. Mr. Asfar then goes on in his affidavit and avers that it was also brought to his attention concurrently that he and Blanshard had nominally agreed with Sun Life to disregard certain civil, regulatory, and criminal laws that otherwise prohibited and made criminal the Sun Life proposal and arrangement. Mr. Asfar claims that he was made to certify it complied with the law when it did not so comply. He alleges that Sun Life falsely induced him to believe it was in the business of making loans and not advancing credit with the intent of concealing from him the details of the true arrangement.
26Mr. Asfar’s affidavit goes on. In my opinion, the following paragraphs of his affidavit again supports the factual conclusion that he found out in May of 2006 that he suffered his loss or damages. As important, these paragraphs show that it was in that period of time, he was aware that a legal proceeding was the remedy for the loss or damages that he suffered as required by s. 5(1)(a)(iv) of the Act:
In or about May of 2006 it was brought to my attention, and I understand and believe that on the basis of any one or more of the defects in the broadly-defined process and/or documentation, that as and when it received custodial possession of the money and various writings/securities and/or the benefit of their registration, Sun Life had no capacity by which to claim or hold a right of property in them, and that a constructive trust was established at that moment, such that the beneficial ownership of them was and remains vested in their issuer(s) (Blanchard, myself, and/or Harvey Richman/Premier, respectively) and has never ceased to be vested in their issuer(s).
I carefully examined and authenticated the evidence and in or about June of 2006. I contacted certain of or among “the said employees/agents” to request and demand an accounting of the discrepancies and defects as stated above, and for an otherwise accounting of its use of Blanchard’s property in the ten-year meantime.
I was then contacted by solicitors purporting to represent Sun Life who said that the matter was closed and that their client Sun Life was not willing to discuss the matter any further.
Over the following circa four month period I had Sun Life and certain of or among “the said employees/agents” served, through my solicitor, with a Commercial Affidavit of Fact and five collateral process documents, by signature-required registered mail with Canada Post as third party witness.
The substance of the communication was a notice that Blanshard was electing to impose a constructive waiver of tort for otherwise unauthorized use of Blanchard’s assets by Sun Life and/or “the said employees/agents” for the period of 1997 to 2006, and that should Sun Life and/or “the said employees/agents” object to any of the provisions- or have any different information- then it/they must respond within the reasonable time allowed.
Under the constructive waiver of tort and/or proposed settlement agreement Blanshard permitted Sun Life to continue its custodial possession of the assets owned by Blanshard and to use them in its business under a stipulated gains-sharing arrangement with Blanshard.
Sun Life and “the said employees/agents” did not directly respond to any of the process documents but has/have continued to employ the assets belonging to Blanshard since 2006, as it/they have in fact since 1996.
27I do not accept any submission by Mr. Asfar that it was only in 2016 that he discovered his claim. His own affidavit says otherwise. When one looks at his affidavit, I find it clear that it was in 2006 that he understood he had suffered loss or damage at the hands of Sun Life and that he could bring a legal action against them. He essentially admits this. He admits he retained lawyers. He admits he created legal documents to try and enforce his claims.
28In addition to this, I find that the other evidence submitted by Sun Life on the motion regarding Mr. Asfar’s actions at the time in 2006 support the finding. This evidence was provided by Ms. Valerie Greifenberger, Assistant Vice-President and Senior Counsel for Sun Life. Sun Life verified that mortgages referred to in the Statement of Claim were discharged by May 2006 and that Sun Life had no further dealings with the five mortgages since then. Further, Sun Life has no record of ever having any dealings with ECCC.
29On May 10, 2006, Mr. Asfar wrote a “without prejudice” letter to Sun Life’s Executive Officer in which he complained about its mortgage and lending practices and the profits made by the company. Mr. Asfar made demands and threatened to commence a law suit against Sun Life, including a class action law suit, if his demands were not made. Mr. Asfar referred Sun Life to a website which on the site included a draft Statement of Claim and a proposed press release.
30On May 12, 2006, a Victoria lawyer retained by Mr. Asfar wrote to Sun Life reiterating Mr. Asfar’s complaints. In the month of May, counsel for Sun Life exchanged correspondence with Mr. Asfar’s lawyer.
31On May 25, 2006, Sun Life’s counsel wrote that it saw no value in any further exchange of correspondence.
32In July of 2006, Mr. Asfar sent various material to several Sun Life executives including documents titled “Notice of Non-Judicial Proceeding” and “Affidavit of Notice, Declaration and Demand”. On July 26, 2006, Sun Life’s counsel wrote to Mr. Asfar’s lawyer and made it clear that Sun Life would not be responding to Mr. Asfar advising that Sun Life saw no value in communicating with him about his frivolous and incomprehensible claim.
33From then to November of 2006, Mr. Asfar sent numerous documents to Sun Life. It had titles such as “Commercial Affidavit, Notice of Default, Notice of Agreement, Affidavit of Notice, Notice of Attachment and Issuance of Negotiable Bill of Lading, Certificate of Fact, and Certificate of Estoppel”. After November of 2006, Sun Life has no record of receiving any further communication from Mr. Asfar for nearly the next 10 years.
34It was only on or about April 15, 2016, that Sun Life received a letter from a lawyer in South Africa requesting a meeting on behalf of his client ECCC. Since then further correspondence was received and Mr. Asfar again threatened a class action. I do not need to go on and outline the more recent events.
35From this record, I find it clear that Mr. Asfar knew by May of 2006, that an action was the appropriate remedy for the losses and damages he believed that the Plaintiffs suffered at the hands of Sun Life. He took actions that individuals normally would in such a situation. He retained counsel. He sent numerous legal looking documents. He made demands. As well, these actions are consistent with his own affidavit.
36I have assessed the substance of what Mr. Asfar was claiming in 2006 with the substance of his claims in his Statement of Claim. The rather rambling and incoherent nature of his allegations both in 2006 and in his Statement of Claim does not make it an easy task. However, I find that they are fundamentally the same. Mr. Asfar takes issue with the financial dealings that he and his company had with Sun Life back in the 1990s and early 2000s. This constitutes the backbone of his claims. They are fundamentally the same.
37Based on this record, there is no genuine issue requiring a trial regarding discoverability. I can readily find that Mr. Asfar’s claim was discovered by May of 2006. By then, Mr. Asfar knew that the Plaintiffs had suffered injury, loss, or damages by the actions of Sun Life and/or their employees or agents and that a legal proceeding was the appropriate way to remedy it. I can readily apply the law to these findings of fact.
38At this summary judgment motion, in responding to the Defendant’s argument that the claims are statute-barred, Mr. Asfar submitted that fraud unravels everything. Put another way, because of the fraud, his claims are not statute-barred. He submitted that the fraud, forgery, and the criminal acts he alleges, suspends the limitation period.
39This position is not accurate. I agree that the doctrine of fraudulent concealment can “toll” or suspend the running of limitation periods. Where there has been a fraudulent concealment of the existence of the cause of action, the limitation period will not begin to run until the earlier date on which the victim actually discovers the fraud, or until the date it is deemed the victim, with reasonable diligence, ought to have discovered the loss: Guerin ats Canada, 1984 25 (SCC), [1984] 2 S.C.R. 335.
40In this case, I find that Mr. Asfar discovered the fraud in May of 2006. Thus, while there may be an arguable case that the doctrine of fraudulent concealment tolled the period from the time the mortgages were entered into until May of 2006, I find that by May of 2006, Mr. Asfar was fully aware of the alleged fraudulent nature of Sun Life’s conduct. Thus, the limitation period began to run from that date. Mr. Asfar is not correct in his position that because of fraud any limitation period defence is irrelevant. It remains very relevant.
41There is another consideration. Although not specifically argued by Mr. Asfar, I have also considered whether other circumstances may have tolled the limitation period. In particular, his affidavit makes reference to some settlement he proposed to Sun Life. I have considered whether there was any agreement to toll the limitation period: Federation Insurance Co. of Canada v. Markel Insurance Co. of Canada, 2012 ONCA 218.
42I find there was no agreement to toll any limitation period. I find there was no settlement as contended by Mr. Asfar. I find there was not even any settlement discussions. The efforts of Mr. Asfar and the communications he had with Sun Life since May of 2006, either directly or through his counsel, Canadian or South African, do not support any basis to suspend the running of the limitation period. Any suggestion that his Commercial Affidavit dated June 30, 2006, Notice of Default dated August 2, 2006, Certificate of Fact dated September 8, 2006, Certification of Estoppel dated September 8, 2006, and other such documents have any legal effect can only spring from an overworked imagination or a misguided knowledge of the Canadian legal system. The documents have no legal validity. They do not impose a “constructive waiver of trust” or any trust obligations on Sun Life. They are largely incoherent. No reasonable person could come to any other conclusion. It seems that the Plaintiffs wanted to impose a one-sided “settlement” on Sun Life that would be deemed to come into effect if Sun Life did not object. Sun Life, for understandable reasons, just simply stopped responding to Mr. Asfar or anyone purporting to represent him. I find that there was nothing in any of this that could have tolled or suspended the running of the limitation period.
43In conclusion, there is no genuine issue requiring a trial. I find that the Plaintiffs’ claims were discovered in May of 2006. The Notice of Action and the Statement of Claim were issued in April and May of 2018. Thus, I can make the findings of fact required for summary judgment on this issue. To these facts, I can apply the law. I can achieve a more proportionate, more expeditious, and less expensive way to a just result.
44Let me say this. I have assessed the Plaintiffs’ claims under two limitation periods. This is because given the evidence presented by the Plaintiffs and the not easily defined claims raised by them, I have considered the two possible limitation periods that could apply.
45First of all, I find that summary judgment can be awarded on the basis that the Plaintiffs’ claims are statute-barred by the general two-year limitation period. The claims deal with Sun Life’s mortgage and lending practices and profits. On this basis, the Plaintiffs’ claims are many years beyond the expiry of the two-year limitation period in May of 2008.
46Secondly, in the alternative, if I am wrong that the two-year limitation period applies, but rather it is the ten-year limitation period found in s. 4 the Real Property Limitations Act, R.S.O. 1990, c. L.15, then my conclusion remains the same. I have considered the ten-year limitation period on the basis that if it can be discerned from the pleadings that what the Plaintiffs are suing for is potentially a constructive or resulting trust in land, then the ten-year limitation period would apply: McConnell v. Huxtable, 2014 ONCA 86; Waterstone Properties Corp. v. Caledon (Town), 2017 ONCA 623. If that’s case, the Plaintiffs’ claim was still discovered in May of 2006. The ten-year limitation period expired in May of 2016. The Plaintiffs’ claims are still statute-barred.
C. CONCLUSION
47Summary judgment is granted in favour of the Defendant. The Plaintiffs’ action is dismissed.
48I have reviewed the Bill of Costs by the Defendant. The Plaintiffs did not provide one. I gave both parties an opportunity to address costs in court. Pursuant to the Courts of Justice Act, s.131 (1), I have a broad discretion when determining the issue of costs. Rule 57.01 (1) sets out the factors to be considered by the court when determining the issue of costs.
49The overall objective of fixing costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant: Boucher v. Public Accountants Counsel for Ontario, 2004 14579 (Ont. C.A.). I have considered these factors, as well as the principle of proportionality (R. 1.01(1.1)), keeping in mind that I should seek to balance the indemnity principle with the fundamental objective of access to justice.
50In this case, Sun Life was successful. Sun Life seeks a very reasonable $5,542.30 on a partial indemnity scale. Taking into account all the appropriate factors, I find that the Plaintiffs shall pay $5,542.30 inclusive of disbursements and HST.
Justice S. Nakatsuru
Released: May 23, 2019