Court File and Parties

COURT FILE NO.: CV-17-581114 DATE: 20190717 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

LUIGI RUFFOLO Plaintiff – and – THE TORONTO-DOMINION BANK Defendant

Counsel: Andrew Ostrom, for the Plaintiff Jeffrey Kukla, for the Defendant

HEARD: July 11, 2019

Endorsement

SANFILIPPO J.

Overview

[1] In 2002, the Plaintiff, Luigi Ruffolo, defaulted on a mortgage that he had granted to the Defendant, The Toronto-Dominion Bank. On March 5, 2002, the TD Bank exercised its rights under its mortgage and on August 19, 2002 the TD Bank sold Mr. Ruffolo’s property pursuant to its power of sale.

[2] There was no surplus from the sale available for transfer to Mr. Ruffolo. Indeed, there was not enough money realized on the sale to discharge all the encumbrances registered against title to the property, leaving Mr. Ruffolo with continued liabilities to secured lenders.

[3] Mr. Ruffolo learned of the amount of the net proceeds realized on the sale on September 23, 2002, when TD Bank notified him that the sale had been completed. He was not content. He had been a real estate agent for some 23 years and thought that the Property had been sold under-value. The sale price was less than the amount he paid to purchase the property in 1990, and less than the value at which it had been appraised in 1989 and 1995. Mr. Ruffolo deposed that this was, in 2002, “a source of disquiet” for him.

[4] Mr. Ruffolo took no steps for some four years. On August 27, 2006, he asked the TD Bank for detail of its handling of the 2002 power of sale. He did not receive a satisfactory response and retained a lawyer, who wrote a letter to the TD Bank on his behalf on February 9, 2009, seeking a copy of their sale file, including any appraisal relied upon. Mr. Ruffolo received these materials from the TD Bank on April 27, 2009.

[5] Mr. Ruffolo challenged the TD Bank’s realization on his Property by further letter to the TD Bank through his counsel on May 12, 2009; by a letter to the President of TD Bank Financial Group on April 11, 2009; by letters to the Office of the Privacy Commission of Canada on April 11, 2009 and July 5, 2009; and by a letter to TD Bank’s Ombudsman on January 12, 2010. Each of these letters had at its core his complaint that the Property had been undersold through the fault of the TD Bank and he thereby sustained a loss.

[6] On August 18, 2017, being 15 years less a day after the sale of the property and over 10 years after the TD Bank provided him with its file material pertaining to its sale, Mr. Ruffolo brought this action claiming the TD Bank is liable to him in negligence, breach of contract and negligent infliction of emotional distress by reason of failing to take reasonable care to obtain a proper sale price for the property.

[7] The TD Bank pleaded that this action ought to be dismissed because it was brought beyond the time permitted by the Limitations Act, 2002, S.O. 2002, c. 24 (the “Limitations Act”). The TD Bank brought this motion to seek summary judgment on this basis.

[8] For the reasons that follow, I find that the Plaintiff initiated this action after the expiry of the applicable limitation period. The Defendant’s motion for summary judgment dismissing this action as statute-barred is granted. This action is dismissed.

I. This Action

(a) Factual Basis for Claim

[9] On April 20, 1990, the Plaintiff purchased a farm property known municipally as 1831 Gilford Road, Innisfil, Ontario (the “Property”) for $680,000. On November 16, 1995, he granted a mortgage to the TD Bank, registered against title to the Property and securing repayment of the principal amount of $247,500 (the “TD Bank Mortgage”).

[10] On May 21, 1997, Mr. Ruffolo further encumbered the Property by a mortgage in favour of the Royal Bank of Canada, securing repayment of the amount of $110,000 (the “RBC Mortgage”) and by a mortgage registered that same day in third priority position to secure the amount of $180,000 borrowed from private individuals (the “Private Mortgage”).

[11] In April 1999, the Plaintiff listed the Property for sale, with a listing price of $599,000. The listing expired on June 26, 1999 without a sale.

[12] In 2002, the Plaintiff defaulted in payment of the TD Bank Mortgage. On March 5, 2002, the TD Bank issued a Notice of Sale, which Mr. Ruffolo did not redeem. The Plaintiff re-listed the Property for sale, again at the asking price of $599,000. Again, it did not sell.

[13] On August 19, 2002, the TD Bank sold the Property under its power of sale for the sum of $400,000. On September 23, 2002, the TD Bank’s lawyers notified Mr. Ruffolo that the sale transaction had completed and provided him with a copy of the Statement of Adjustments and Reconciliation Statement. These materials showed that the proceeds realized on the sale of the Property were applied to pay in full the TD Bank Mortgage and the RBC Mortgage. The net amount of $2,875.74 was applied to the Private Mortgage, leaving a balance outstanding for which Mr. Ruffolo remained liable.

(b) Claim Advanced

[14] Mr. Ruffolo claims against the TD Bank in negligence, breach of contract and for negligent infliction of emotional distress. All three claims are based on the same core allegation.

[15] Mr. Ruffolo’s claim in negligence is based on failure “to take reasonable care to obtain a proper sale price for the Property”: statement of claim, paras. 24-25. His claim in breach of contract is based on breach of an implied contract term that in exercising any power of sale the TD Bank would “take reasonable care to obtain a proper sale price for the Property”: statement of claim, paras. 26-27. Mr. Ruffolo pleaded that he suffers from a provable psychiatric illness that was caused by the TD Bank’s “breach of the standard of care in failing to obtain a proper value for the Property”: statement of claim, para. 28.

[16] The Plaintiff alleged that these breaches by the TD Bank have caused him monetary damages in his continued liability for the balance outstanding under the Private Mortgage, the loss of equity in the Property and damages for emotional distress. The Plaintiff seeks $500,000 in damages for negligence and breach of contract, and $4,500,000 in damages for negligent infliction of emotional distress.

[17] The TD Bank seeks summary dismissal of this action based on its limitation defence.

II. This Motion for Summary Judgment

A. Applicable Rule

[18] The Defendant’s motion for summary judgment is based on Rule 20.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which provides as follows:

A defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim.

[19] Rule 20.04(2) directs that if a court is satisfied that there is no genuine issue requiring a trial with respect to a claim, the court shall grant summary judgment. Rule 20.04(2.1) provides that in determining whether there is a genuine issue requiring a trial, the Court shall consider the evidence submitted by the parties, and may weigh the evidence, evaluate the credibility of a deponent or draw any reasonable inference from the evidence, unless it is in the interest of justice for such powers to be exercised only at a trial.

B. Applicable Principles in Summary Judgment

[20] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court emphasized that the important objective of ensuring access to justice requires an effective and accessible process for the enforcement of rights. The procedural tool refined in Hryniak, the summary judgment motion, was emphasized as a means to achieve timely and efficient adjudication in certain, but not all, cases. In Hryniak, the Supreme Court provided the template by which Rule 20 is to be applied.

[21] In Hryniak, at para. 66, the court sets out a two-part test for considering summary judgment under Rule 20.04(2)(a), termed the “Roadmap”. The first step is that the motion judge must determine whether there is a genuine issue requiring trial based only on the evidence contained in the motion record, specifically without using any of the powers set out in Rule 20.04(2.1). There will be no genuine issue requiring trial where the evidentiary record on the motion provides the judge with the evidence necessary to reach a fair and just determination in a process that is timely, proportionate and affordable, as is stated in Hryniak at paras. 4, 28, 66 and specifically at 49. Paragraph 49 states:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the 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 proportionate, more expeditious and less expensive means to achieve a just result.

[22] The second step in the “Roadmap” is activated when a judge finds that there is a genuine issue requiring a trial. The court should then determine whether the issue can be decided using the powers set out in Rules 20.04(2.1) and 20.04(2.2). These powers are to be employed where they will lead to a fair and just result but not where they do not serve the goals of affordability and proportionality, as stated in Hryniak at para. 66:

She may, at her discretion, use those powers, provided that their use is not against the interest of justice. 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.

[23] The foundational themes in Hryniak focus on the goals of proportionate, cost-effective and timely adjudication on an evidentiary record and in a process that allows for a fair and just determination. The Supreme Court emphasized that when a judge can fairly and justly adjudicate a case using the new powers under Rules 20.04(2.1) and 20.04(2.2), it will be in the interest of justice to do so. The decision to use these powers is within the discretion of the judge: Hryniak at para. 68.

[24] The burden of persuading the court, through evidence, that there is no genuine issue requiring a trial rests with the moving party. This burden shifts to the responding party only after the moving party has discharged its evidentiary burden of establishing that there is no genuine issue requiring trial: Sanzone v. Schechter, 2016 ONCA 566, 402 D.L.R. (4th) 135 at para. 30; Connerty v. Coles, 2012 ONSC 5218 at para. 9.

[25] This means that the moving party, the TD Bank, has the onus to prove all the elements on which its limitation defence is based, including the date on which the cause of action arose: Nasr Hospitality Services Inc. v. Intact Insurance, 2018 ONCA 725, 142 O.R. (3d) 561 at para. 66; Crombie Property Holdings Ltd. v. McColl-Frontenac Inc., 2017 ONCA 16, 406 D.L.R. (4th) 252 at para. 33.

III. The Limitation Defence

[26] The TD Bank’s sale of the Property, under power of sale, completed on August 19, 2002. At that time, the limitation period for the Plaintiff to have initiated an action against TD Bank was six years, in accordance with section 45(1)(g) of the governing legislation then in place, specifically, the Limitations Act, R.S.O. 1990, c. L.15 (the “Former Act”).

[27] Since then, the Limitations Act, 2002 came into force on January 1, 2004. Section 24(5) of the Limitations Act provides that where the former limitation period for a claim had not expired before January 1, 2004, and no action was initiated until after 2004, as in the present case, the limitation period applicable to the Plaintiff’s claim will depend on whether the Plaintiff discovered his claim during the time in which the Former Act governed or after the Limitations Act came into force. Specifically, if the Plaintiff discovered his claim against the TD Bank before January 1, 2004, the limitation under the Former Act is applicable, and Mr. Ruffolo would have six years from discovery to initiate his claim. If Mr. Ruffolo discovered his claim against the TD Bank on or after January 1, 2004, the Limitations Act applies.

[28] Section 4 of the Limitations Act provides a basic limitation period of two years from the date on which a claim is discovered: “Unless 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”. This is subject to the ultimate limitation period of fifteen years set out in section 15(2) of the Limitations Act: “No proceeding shall be commenced in respect of any claim after the 15th anniversary of the day on which the act or omission on which the claim is based took place.”

[29] Section 5(1) of the Limitations Act sets out the elements that establish when a claim is “discovered”:

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).

[30] The requirements of section 5(1)(a) of the Limitations Act are conjunctive: Longo v. MacLaren Art Centre Inc., 2014 ONCA 526, 323 O.A.C. 246 at para. 41.

IV. Issue

[31] The issue on this motion is whether the claims pleaded by the Plaintiff in this action are outside of the applicable limitation period. The test on a summary judgment motion involving a limitation defence is whether there is an issue regarding discoverability that requires a trial for determination.

[32] In the alternative, the moving party states that the Plaintiff’s claim is barred on the equitable basis of laches.

V. Analysis

A. The Onus

[33] The moving party Defendant established that the Plaintiff’s claim is based on conduct on the part of the TD Bank in the sale of the Property, which closed on August 19, 2002. The limitation period in place at that time provided the Plaintiff with six years to advance his claim. This action was instead initiated almost nine years after the expiry of this six-year limitation period.

[34] Section 5(2) of the Limitations Act creates a statutory presumption that a claimant acquired knowledge of his or her claim on the date the act or omission took place: Miaskowski v. Persaud, 2015 ONCA 758, 393 D.L.R. (4th) 237 at para. 24; Placzek v. Green, 2009 ONCA 83, 307 D.L.R. (4th) 441 at para. 23; Liu v. Silver, 2010 ONSC 2218, 101 O.R. (3d) 702 at para. 10, affirmed 2010 ONCA 731.

[35] When a limitation defence is raised, the onus is on the plaintiff to displace the statutory presumption of the date on which he discovered his claim: Miaskowski at para. 27. The Plaintiff bears the onus of establishing that his claim was not discoverable within the limitation period, and that he acted on his claim when discovered or when a reasonable person in the same or similar circumstances using reasonable diligence would have discovered the material facts upon which the claim is based: Soper v. Southcott (1998), 39 O.R. (3d) 737 (C.A.); Bolton Oak Inc. v. McColl-Frontenac Inc., 2011 ONSC 6567, 64 C.E.L.R. (3d) 239 at paras. 12-14; Clemens v. Brown (1958), 13 D.L.R. (2d) 488 (Ont. C.A.); Huang v. Mai, 2014 ONSC 1156, 119 O.R. (3d) 117, approved in Collins v. Cortez, 2014 ONCA 685, 39 C.C.L.I (5th) 1 at para. 11.

B. Legal Principles

[36] “Discoverability” of a cause of action is a general rule applied to avoid the injustice of depriving a plaintiff of the opportunity to bring an action before that party knows to raise it: Peixeiro v. Haberman, [1997] 3 S.C.R. 549 at p. 563; Central Trust Co. v. Rafuse, [1986] 2 S.C.R. 147 at p. 224; Kamloops (City of) v. Nielsen, [1984] 2 S.C.R. 2.

[37] The Limitations Act requires both a subjective and an objective assessment of when a claim is discovered. The limitation period is activated on the earlier of when the plaintiff is actually aware of all the elements of section 5(1)(a), or when a reasonable person with the abilities, and in the circumstances, of the plaintiff first ought to have known of all these matters: Irps-Bleeker v. Van Gaalen, 2019 ONCA 592 at para. 7; Longo v. MacLaren Art Centre Inc. at para. 41; Van Allen v. Vos, 2014 ONCA 552, 121 O.R. (3d) 72 at paras. 33-34; Castronovo v. Sunnybrook & Women’s College Health Sciences Centre at para. 54.

[38] It is not necessary that a plaintiff “knows with certainty that … injuries were caused by the fault of the defendant” in order for a limitation period to be activated. The question to be posed when assessing whether a claim was discoverable, as stated by the Ontario Court of Appeal in Dale v. Frank, 2017 ONCA 32, 136 O.R. (3d) 315 at para. 7 is “whether the prospective plaintiff knows enough facts on which to base an allegation of negligence against the defendant”, relying on Lawless v. Anderson, 2011 ONCA 102, 81 C.C.L.T. (3d) 220; Soper; and McSween v. Louis (1999), 132 O.R. (3d) 304 (C.A.) at para. 51. In Tremain v. Muir, 2014 ONSC 185 at para. 60, this was characterized as knowing “sufficient particulars” to “meaningfully call into question the actions and prescribed treatment of the named defendants.”

[39] In Lochner v. Toronto (Police Services), 2015 ONCA 626, 128 O.R. (3d) 318 at para. 7, the Court of Appeal explained that “knowledge of liability” is not part of discoverability for the purpose of starting a limitation period, as it is the lawsuit itself that will determine liability. Similarly, “certainty of a defendant’s responsibility for the act or omission that caused or contributed to the loss is not a requirement”: Kowal v. Shyiak, 2012 ONCA 512, 13 C.L.R. (4th) 7 at para. 18. The Court of Appeal stated that “it is enough to have prima facie grounds to infer that the acts or omissions were caused by the party or parties identified”: Kowal at para. 18, relying on Gaudet v. Levy (1984), 47 O.R. (2d) 577 (H.C.).

C. The Responding Party’s Position

[40] The Responding Party admits that he became aware of the sale price of the Property in 2002, and therefore knew that it had been sold for less than the price that he had paid in purchase and less than the appraised value for financing purposes. However, he contends that dissatisfaction, or as he states “disquiet”, concerning the low realization value was insufficient to advance a claim for improvident sale. Rather, he submitted that he could not discover his claim without first knowing about the process that the TD Bank had employed in the sale of the Property.

[41] The Plaintiff relied on the finding by Lederer J. in Toronto-Dominion Bank v. 466888 Ontario Limited, 2010 ONSC 3798, 103 O.R. (3d) 502 at para. 20, that the mortgagee acting on its power of sale is “not bound to obtain true market value, but to take reasonable precautions to obtain that value”. Similarly, the finding by Price J. in Montemurro v. Jardim, 2012 ONSC 6209, 25 R.P.R. (5th) 310 at para. 46, that a claim in improvident sale requires that the plaintiff establish two elements: “first, that the mortgagee failed to take reasonable steps to sell the property, and second, that the failure to take those steps resulted in loss to the mortgagor”.

[42] The Plaintiff contended that the TD Bank did not respond to requests by Mr. Ruffolo for production of the appraisal that it relied on, and its power of sale file, until April 27, 2009. As such, he submitted that his claim against the TD Bank was not discoverable until then as he had no opportunity to know the process by which the Property was sold.

[43] This position on discoverability would, however, nonetheless cause the limitation period to begin to run on April 27, 2009 and expire on April 27, 2011, and thereby does not assist the Plaintiff in resisting dismissal of his action as his action was not initiated until August 18, 2017. The Plaintiff deposed that he did not know until 2016 or 2017 that the TD Bank’s sale process was flawed as he learned then, he says through comments made to him by others, that the TD Bank had ignored a higher potential offer, and that the TD Bank ignored a higher appraisal that was available to it in 2002.

[44] To assess the issues raised on this motion, I will analyse the evidentiary record, with application of the legal principles pertaining to discoverability.

D. The Evidentiary Record

[45] After the Plaintiff learned on September 23, 2002 of the sale of the Property and the sale price, the first step he took was some four years later, on August 27, 2006, when the Plaintiff forwarded a letter to the TD Bank requesting a copy of the appraisal it used in assessing the sale of the Property, and other materials pertaining to the sale. The TD Bank did not respond to this inquiry.

[46] By February 2009, Mr. Ruffolo had retained a lawyer to assist him in seeking the TD Bank’s file material. By letter dated February 9, 2009, Mr. J.B. Donnelly forwarded a letter to the TD Bank, on Mr. Ruffolo’s behalf, seeking production of the TD Bank file in relation to the power of sale of the Property.

[47] On February 26, 2009, Mr. Ruffolo forwarded a letter to the TD Bank’s Ombudsman, in which he stated that he “felt that the property was undersold”. The Plaintiff stated that he had contacted the Canadian Appraisal Association and had confirmed his understanding that an appraisal must have at least three comparables to determine a property’s fair market value. Mr. Ruffolo stated as follows:

I am not interested in filing complaints. I just want to see the file and how it is that they came to deem that the property was worth only $400,000. I was a real estate agent from 1967 to 1990 and I do know something about market value. … I know that I was not treated fairly nor was the property sold for market value. [Emphasis added]

[48] On April 11, 2009, Mr. Ruffolo wrote to the President of the TD Bank Financial Group to file a privacy complaint. Mr. Ruffolo stated that he wanted to see the TD Bank file, and the appraisals that he believed to be contained in it. Mr. Ruffolo stated: “I believe that I have been scammed for hundreds of thousands of dollars because the appraisers contracted by TD Bank under-appraised the property and I believe that this is the reason they are not letting me see the file.”

[49] On April 27, 2009, the TD Bank delivered to Mr. Ruffolo a copy of its file in relation to the sale of the Property, which included an appraisal dated June 14, 2002 prepared by Appraisers Canada Inc. (the “Appraisers Canada Appraisal”).

[50] On May 12, 2009, Mr. Donnelly forwarded a letter to the TD Bank as Mr. Ruffolo’s lawyer, raising questions concerning the Appraisers Canada Appraisal. Mr. Donnelly inquired why a second appraisal was not obtained, why the Appraisers Canada Appraisal was not signed and why the appraisal did not consider the property as a working horse farm with a two-story barn and residence.

[51] On June 9, 2009, the TD Bank forwarded a further letter to Mr. Ruffolo, in which the TD Bank stated its view that it had “acted in accordance with its contractual and statutory rights and obligations relating to the enforcement of its mortgage security, including the sale of 1831 Gilford Road, Innisfil”. The TD Bank reiterated that it had forwarded to Mr. Ruffolo, and its counsel, the content of its file.

[52] On January 12, 2010, Mr. Ruffolo forwarded a further letter to the TD Bank Ombudsman, making further complaints of the TD Bank’s handling of its power of sale proceeding. The TD Bank Ombudsman by letter on July 14, 2010, stating that the TD Bank had concluded its review, found that “all the proper policies and procedures were followed” and terminated the attempted resolution process.

E. Application of Legal Principles to the Limitation Analysis

[53] In Dale v. Frank at para. 7, the Court of Appeal affirmed that the proper test for assessing whether a claim was discoverable or discovered is that set out by Rouleau J.A. in Lawless, at paras. 23 and 28:

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

[W]hat a prospective plaintiff must know are the material facts necessary to make a claim, whatever form they come in. [Emphasis in original]

[54] The parties’ submissions necessitate examination of four points in time material to the TD Bank’s limitation defence. I will consider these in order:

(a) The Ultimate Limitation Period – Act or Omission Prior to August 19, 2002

[55] The TD Bank submitted that I should find that the act or omission on which Mr. Ruffolo’s claim is based took place before the closing of the sale of the Property on August 19, 2002. As the statement of claim was not issued until August 18, 2017, the TD Bank contended that I should dismiss this action as limitation-barred, as it contravenes the 15-year ultimate limitation period set out in section 15(2) of the Limitations Act:

No proceeding shall be commenced in respect of any claim after the 15th anniversary of the day on which the act or omission on which the claim is based took place.

[56] I do not accept this submission. The act or omission on which the Plaintiff’s claim is based is the improvident sale of the Property. Any defect in the TD Bank’s power of sale process was not actionable if the Property was not transferred in sale. This was not completed until August 19, 2002. The statement of claim was issued before the 15th anniversary of the day on which the closing occurred and thereby is within the ultimate limitation period.

(b) Discoverability on August 19, 2002

[57] The TD Bank contended that I should find that Mr. Ruffolo discovered the material facts necessary to make a claim at the time of closing of the sale of the Property: August 19, 2002. It submitted that the applicable limitation period would then be the six-year limitation period set out in the Former Act, with the result that the time for Mr. Ruffolo to advance his claim expired on August 19, 2008, almost nine years before he started this action on August 18, 2017.

[58] I reject this submission. While Mr. Ruffolo felt that the TD Bank had undersold the Property immediately upon learning of its sale, he did not have a basis at that time to question the process by which the TD Bank had conducted its power of sale. He was dissatisfied with the sale price but lacked information that would allow for an understanding of whether “the mortgagee failed to take reasonable steps to sell the property”, as is required to establish a claim in improvident sale: Montemurro at para. 46. He asked the TD Bank to provide a copy of the Property appraisal and other material relied on by them in the sale of the Property, as he was entitled to do, on August 27, 2006, but did not receive the material from the TD Bank until April 27, 2009. The TD Bank’s delay in response prevented Mr. Ruffolo from discovering his claim earlier.

[59] Further, I must assess not only when Mr. Ruffolo knew of the material facts supporting his claim, but when a reasonable person, with the abilities and in the circumstances of Mr. Ruffolo, first ought to have known of the material facts supporting his claim: Longo at para. 41. Mr. Ruffolo deposed that in addition to not having the detail of the power or sale process employed by the TD Bank, he had health set-backs and challenges that affected his ability to address his claim. He swore that he suffered from depression from 2002 onwards and had a stroke in or around 2008. As the plaintiff, Mr. Ruffolo was required to show that he acted as a reasonable person in the same or similar circumstances using reasonable diligence would have acted.

[60] Mr. Ruffolo withdrew in argument the position stated in his responding record and factum that the limitation period was suspended by reason of his health conditions, but asked that I take into consideration his circumstances and abilities as part of my assessment of discoverability. I have done so, and it bolsters my determination, made by reason of Mr. Ruffolo’s lack of information concerning the TD Bank’s sale process, that his cause of action was not discoverable on August 19, 2002.

(c) Discoverability on April 27, 2009

[61] I find that the Plaintiff discovered his claim against the TD Bank on April 27, 2009. By this date, the Plaintiff had expressed in written communication of February 26, 2009 to the TD Bank that he knew that the Property had been undersold and he had not been treated fairly. On April 27, 2009, Mr. Ruffolo received from the TD Bank all the documents that it had in relation to the sale, including a copy of the long-sought appraisal. Mr. Ruffolo deposed that he was able to investigate TD Bank’s power of sale process on receipt of these materials. At that time, Mr. Ruffolo also had the advice of his lawyer, Mr. Donnelly, who remained active on his behalf, as evidenced by Mr. Donnelly’s letter to the TD Bank on May 12, 2009, by which he made further investigations on Mr. Ruffolo’s behalf, including questioning the sale process and the reliance by the TD Bank on the Appraisers Canada Appraisal.

[62] Mr. Ruffolo’s statement of claim validates my conclusion that he discovered all the material facts necessary to know of his claim on April 27, 2009. Paragraph 24 of the statement of claim pleads that the TD Bank owed a duty of care to take reasonable care to obtain a proper sale price for the Property. In support of his allegation that the TD Bank fell below this standard, Mr. Ruffolo pleads that the TD Bank failed to obtain a valid second appraisal prior to the sale of the Property (para. 25(b)), that the TD Bank failed to take into consideration appraisals that it had prior to August 2002 (para. 25(c) and para. 25(d)(ii)), and that the TD Bank failed to exercise due diligence in reviewing the Appraisers Canada Appraisal (paras. 25(d)(i) to 25(d)(x), inclusive). This claim could have been pleaded upon receipt of the TD Bank file material on April 27, 2009, which included the Appraisers Canada Appraisal, proving that the claim pleaded in the statement of claim was known on April 27, 2009.

(d) The Responding Party’s Position: Discoverability in 2016

[63] I do not accept the responding party’s submission that he could not discover his claim until “in or around 2016”, when he claims to have had a discussion with a certain Joe Sawyer who he claims told him that he was prepared to offer $24,900 more than the TD Bank sold the Property for, but did not do so before the Property sold. This evidence is hearsay. Mr. Ruffolo could have, but did not tender evidence directly from this witness.

[64] I also do not accept Mr. Ruffolo’s submission that he could not discover his claim until “in or around January or February 2017” because he was advised at that time by an unnamed source that the TD Bank had received a second appraisal of the Property at a higher value and failed to take this into consideration. Mr. Ruffolo swore that he saw a second appraisal provided to him by the unnamed source but does not have a copy of it. Again, this is hearsay and inadmissible as evidence of a material fact.

[65] Parties to a summary judgment motion have an obligation to “put their best foot forward” with respect to the existence or non-existence of material issues to be tried: Hryniak at paras. 57, 66; Miaskowski at para. 27; Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372 at para. 11, citing Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 28 O.R. (3d) 423 (Gen. Div.) at p. 434. Mr. Ruffolo could have adduced the evidence from Mr. Sawyer or from his unnamed source by affidavit or by summons to witness under Rule 39.03. He did neither.

[66] Further, a Court is entitled to assume that the record on a motion for summary judgment contains all the evidence that would be presented at trial: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200 at para. 27, aff’d 2014 ONCA 878, leave to appeal dismissed, [2015] S.C.C.A. No. 97. Allegations contained in the pleadings cannot be used as the evidentiary basis for positions taken in summary judgment motions. “Pleadings are not evidence”: Hawthorne v. Markham Stouffville Hospital, 2016 ONCA 10 at para. 8.

[67] However, even if the evidence of Mr. Ruffolo’s two alleged discoveries in 2016 to 2017 were admissible, it would not change my analysis. This evidence may support Mr. Ruffolo’s claim, if capable of being proven, but is not required to make the claim discovered because a plaintiff need not know that a defendant is culpable in order for the loss that it causes to be discovered: Dale at para. 7. The Court of Appeal has emphasized that requiring a plaintiff to know for certain that her damages were caused by the fault of the defendant would require the plaintiff to arrive at a legal conclusion, which “is too high a bar for the plaintiff to have to meet”: Dale at para. 7, relying on Kowal at para. 18.

(e) Conclusion

[68] On the analysis set out above, I have concluded that a reasonably prudent person with the abilities and in the circumstances of the Plaintiff would have known of the claim pleaded in this action on April 27, 2009, which is eight years before this action was initiated on August 18, 2017. This action is limitation-barred as having been brought beyond the applicable two-year limitation period.

F. The TD Bank’s Alternative Position - Laches

[69] In light of my determination that this action is limitation-barred, it is not necessary to determine the TD Bank’s alternative submission that this action ought to be dismissed on the basis of laches. However, I will address this issue for completeness of analysis.

[70] Had I concluded that the limitation period was not contravened, I would not have dismissed this action based on laches. This is because the knowledge required for determining discoverability in this case is the same knowledge that would be assessed to determine the applicability of the doctrine of laches. If the Plaintiff’s knowledge was insufficient to establish that the claim was discoverable, then his knowledge would have been insufficient to support dismissing the claim based on laches.

[71] Laches is an equitable doctrine that is based on the principle that a party is obligated to assert legal rights on a timely basis or risk losing them. As Penny J. stated in Indcondo Building Corp. v. Sloan, 2014 ONSC 4018, 121 O.R. (3d) 160 at paras. 157-159, “laches is a form of equitable limitation period”. This equitable limitation period should be resolved as a matter of justice between the parties. Mere delay is insufficient to trigger laches. Rather, the question is whether the delay has made the prosecution of the action unreasonable, or constitutes acquiescence by the plaintiff: M.(K.) v. M.(H.), [1992] 3 S.C.R. 6 at paras. 98-99.

[72] I agree with the statement by Morgan J. in Barker v. Barker, 2019 ONSC 3015 at para. 27: “One can’t acquiesce in something one hasn’t discovered”. In M(K), La Forest J. wrote that although both the equitable doctrine of laches and the discoverability principle “share the common requirement of knowledge on the part of the plaintiff” and will mostly result in a common outcome, he did “not wish to be taken as suggesting that an inquiry under the common law will reach the same result as in equity in every case”: para. 104.

[73] Exceptional circumstances would be required to allow for a finding that a plaintiff lacked sufficient knowledge to discover the material facts on which a claim is based but nonetheless had sufficient knowledge of her or his claim to justify dismissal on equitable grounds. Had I accepted the Plaintiff’s submission that he did not have knowledge of his claim until 2016 or 2017, such that it did not contravene the limitation period, I would not have dismissed the claim on the basis of laches as my assessment of the Plaintiff’s knowledge would not have supported the application of this equitable doctrine.

VI. Disposition

[74] The Defendant’s motion for summary judgment is granted. This action is dismissed.

VII. Costs

[75] At the conclusion of the argument on this motion, I heard cost submissions.

[76] The TD Bank submitted that costs should follow the event. As success on the motion means that the action is dismissed, the TD Bank contended that it should receive its costs of the action. The TD Bank submitted that on a substantial indemnity basis, its fees were $23,524.22, plus HST of $3,058.14, plus disbursements, inclusive of HST, of $446.57, for a total of $27,028.93.

[77] The TD Bank did not provide a cost outline on a partial indemnity scale but concurred that the fees would approximate 65% of the substantial indemnity amount. I have thereby calculated the partial indemnity costs incurred by the TD Bank for defence of this action as $15,290.74 for fees, plus HST of $1,987.79, plus disbursements of $446.57, for a total of $17,725.10.

[78] The TD Bank sought costs on a substantial indemnity scale, on the basis that the TD Bank Mortgage provided, in paragraphs 1(g) and 19(g) of its Standard Charge Terms that the bank is contractually entitled to solicitor and client costs in certain circumstances. I reject this submission because the Standard Charge Terms in the TD Bank Mortgage are not relevant to my determination of costs on this motion.

[79] The responding party agreed that costs should follow success on the motion but stated that the costs should be on a partial indemnity basis and that the amount of costs proposed by the TD Bank was excessive. Mr. Ruffolo’s cost outline for the action totaled $11,642.21 on a partial indemnity basis. Mr. Ruffolo submitted an award of $11,000 in costs, all-inclusive, would be reasonable in the circumstances of this case.

[80] I shall follow the principle that, absent special circumstances, costs generally follow the event: Bell Canada v. Olympia & York Developments Ltd., 1994 ONCA 239, 1994 ONCA 239, 17 O.R. (3d) 135; Yelda v. Vu, 2013 ONSC 5903, leave to appeal denied, 2014 ONCA 353, 64 M.V.R. (6th) 177 at para. 11. I thereby award costs to the TD Bank. The costs shall be on a partial indemnity basis, as the TD Bank has not established any basis for entitlement to costs on a substantial indemnity basis.

[81] In terms of the amount of costs, I have considered the factors set out in Rule 57.01(1). The proceeding was not complex (Rule 57.01(1)(c)), but the Defendant made this motion more complicated than was necessary by advancing alternative arguments that were not analytically viable, such as reliance on the ultimate limitation period and the doctrine of laches. The unsuccessful party’s reasonable expectation in costs would have been far closer to the Plaintiff’s costs than those of the Defendant (Rule 57.01(1)(0.b)).

[82] My task is to determine an amount of costs that is fair, reasonable and proportionate, in all the circumstances: Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.); Zesta Engineering Ltd. v. Cloutier (2002), 21 C.C.E.L. (3d) 161 (Ont. C.A.); Beaver v. Hill, 2018 ONCA 840. In the exercise of my discretion under section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and considering the factors contained in Rule 57.01, I have concluded that it is fair, reasonable and proportionate that the TD Bank be awarded costs payable by the Plaintiff in the amount of $11,000, all-inclusive of fees, taxes and disbursements.

Sanfilippo J. Released: July 17, 2019