COURT FILE NO.: CV-17-412

DATE: 2019 09 11

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

SYLVIA CATHERINE FINAMORE

Self-Represented

Plaintiff

• and -

JIM MOON, MOON LAW OFFICE, SANDRA SPIELGELBERG, PROTOPAPAS & SPIEGELBERG BARRISTERS AND SOLICITORS, LESS PROTOPAPAS, PROTOPAPAS & SPIEGELBERG, BARRISTERS AND SOLICITORS, IAN JAMES HOWARD BROWN, BROWN FAMILY LAW, and ROBERT DOWHAN, SMITH VALERIOTE LAW FIRM LLP

Michael Bordin, for the Defendants Les Protopapas, Sandra Spiegelberg and Protopapas & Spiegelberg, Barristers and Solicitors

Richard Greene, for Ian James Howard Brown and Brown Family Law

Dawn Phillips-Brown, for Jim Moon and Moon Law Office

Defendants

HEARD: March 4, 2019

REASONS FOR JUDGMENT

Fowler Byrne J.

[1] The Plaintiff, Sylvia Catherine Finamore, commenced an action against five lawyers and their law firms claiming damages in the sum of $147,483.28. She alleges these damages were sustained as a result of the Defendants’ breach of their fiduciary duty to her. Four of these lawyers and their firms have brought a motion for summary judgment seeking to dismiss this action. The action against the fifth lawyer has already been dismissed.

The Parties

[2] The Plaintiff and her husband Paul Finamore (who is not party to this lawsuit) were involved in family law proceedings resulting from their separation on September 7, 2009.

[3] From the commencement of these family law proceedings, the Plaintiff was represented by the Defendants Sandra Spiegelberg and her firm Protopapas and Spiegelberg, Barristers and Solicitors (collectively “Spiegelberg”). On July 8, 2013, the Plaintiff served a Notice of Change in Representation indicating that she would henceforth be representing herself.

[4] During the family law proceedings, the Plaintiff, Paul Finamore, and their jointly owned company, 11990255 Ontario Limited (“the Corporation”) were sued by Meridian Credit Union. The Defendants Les Protopapas and his firm Protopapas and Spiegelberg, Barristers and Solicitors (collectively “Protopapas”) acted as counsel for the Plaintiff only in that action. Protopapas also provided advice to the Plaintiff in 2012 with respect to the corporate aspects of her family law proceedings.

[5] The Defendants Jim Moon and his firm Moon Law Office (collectively “Moon”) acted for both the Plaintiff and Paul Finamore on the sale of their matrimonial home during the family law proceedings.

[6] The Defendants Ian James Howard Brown and his firm Brown Family Law (collectively “Brown”) never represented the Plaintiff. At all material times, Brown only represented Paul Finamore in the family law proceedings.

[7] The Plaintiff also named Robert Dowhan and his firm Smith Valeriote Law Firm LLP, who acted as corporate counsel for the Corporation during the marriage and thereafter. This part of her claim was dismissed on consent, by way of the Order of Lemon J. dated January 15, 2018.

Issues

[8] The following issues must be determined on this motion:

a) Is this an appropriate motion for summary judgment?

b) If so,

(i) Is this action statute barred by the Limitations Act, 2002?

(ii) Can a claim of breach of fiduciary duty be raised against all the Defendants? and

(iii) Are the issues raised by the Plaintiff in her claim an abuse of process or a collateral attack on the judgment of Bellegham J. of June 3, 2014?

Analysis

A. Summary Judgment

[9] The following rules from the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, are relevant:

20.02 (2) In response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial. O. Reg. 438/08, s. 12

20.04 (2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or

(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.

20.04 (2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

[10] In determining whether a motion for summary judgment is appropriate, a judge must first determine whether there is a genuine issue requiring a trial based only on the evidence before him or her. There is no genuine issue requiring a trial if the evidence presented: (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. In determining if there is a genuine issue requiring a trial, the court is authorized under r. 20.04(2.1) to weigh evidence, decide credibility and draw reasonable inferences: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR 87, at paras. 42-49.

[11] On a motion for summary judgment, the court will assume that all necessary evidence has been tendered as parties are expected to put their best foot forward. A motion judge is entitled to presume that the evidentiary record is complete and there will be nothing further if the issue were to go to trial. Finally, a motion judge is not required to resort to the summary judgment enhanced powers to remedy a party’s evidentiary shortcomings: Broadgrain Commodities Inc. v. Continental Casualty Company, 2018 ONCA 438, at para. 7.

[12] After considering the evidence submitted by all parties, I am satisfied that there is no genuine issue requiring a trial and that summary judgment is an appropriate, more expeditious and less expensive manner in which to proceed.

B. Limitation Period

[13] The relevant provisions of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B. are as follows:

4 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. 2002, c. 24, Sched. B, s. 4.

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). 2002, c. 24, Sched. B, s. 5 (1).

(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. 2002, c. 24, Sched. B, s. 5 (2).

[14] The Plaintiff has alleged that the two-year limitation period commenced on March 1, 2016. This is the date she received a package from the Canada Revenue Agency (“CRA”) containing information on the taxes, fees and penalties relating to the Corporation and the personal liability of both her and Paul Finamore. In the alternative, the Plaintiff states that a person has six years to advance a claim for equalization in a matrimonial proceeding as per s. 7(3) of the Family Law Act, R.S.O. 1990, c. F. 43. The Plaintiff also relies on the ten-year limitation period as set forth in the Real Property Limitations Act, R.S.O. 1990, c. L. 15, and argues that Paul Finamore was unjustly enriched by the alleged errors of counsel with regards to the sale of the matrimonial home.

[15] The two-year limitation period is the applicable limitation period. The six-year limitation period set forth in the Family Law Act commences from the date of separation, which was in 2009 and thus expired in September 2015. In any event, this deadline was met when the Plaintiff responded to Paul Finamore’s family law application. Unfortunately, the Plaintiff did not receive the result to which she believed she was entitled in that proceeding.

[16] With respect to the ten-year limitation period, this limitation period has no application to these facts. The Plaintiff has not made a claim against Paul Finamore for unjust enrichment. She has claimed against various lawyers who received no benefit from these transactions, save and except the fees they charged. In any event, her action is based in negligence, and she seeks no interest in land.

[17] The date on which the Plaintiff can be said to be in receipt of sufficient information to cause the limitation period to commence will depend on the circumstances of each case: Tender Choice Foods Inc. v. Versacold Logistics Canada Inc., 2013 ONSC 80, at para. 53, aff’d 2013 ONCA 474. Accordingly, in order to determine whether this claim is statute barred, a review of the relevant facts is necessary. The following facts have either been agreed to by all parties, are supported by documentation, or admitted by the Plaintiff in her affidavits or in her cross-examination in preparation for this motion.

[18] The Plaintiff and Paul Finamore separated on September 7, 2009. Paul Finamore commenced family law proceedings on May 25, 2011. Brown represented Paul Finamore and Spiegelberg represented the Plaintiff.

[19] On August 2, 2012, Protopapas attended a meeting with the Plaintiff and counsel from the law offices of Smith Valeriote, which acted as corporate counsel of the Corporation. Paul Finamore and a trustee in bankruptcy were also in attendance. The dire financial circumstances of the Corporation were discussed. At that time, it was estimated that the Corporation had source deductions owing to the CRA of approximately $163,948.00 and a further $65,000.00 owing for unpaid HST. These are debts for which directors may be personally responsible.

[20] In October 2012, the Corporation filed for bankruptcy.

[21] On December 11, 2012, Skarica J. made an Order within the family law proceedings that the matrimonial home located at 14 Walnut Drive be sold. Skarica J. ordered that the proceeds of sale be divided equally after paying the line of credit, real estate commission and legal fees, save and except the sum of approximately $36,000.00 which was to be held back from the Plaintiff’s portion until she provided certain disclosure. Paul Finamore was awarded costs on this motion in the sum of $3,500.00 which were to be paid from the Plaintiff’s share of the sale proceeds. The house was listed for sale and sold on January 14, 2013. The closing was scheduled for May 10, 2013.

[22] Moon was retained by both the Plaintiff and Paul Finamore to act on their behalf on the sale of the matrimonial home. Neither Spielberg nor Brown acted on the real estate transaction, but Moon was in contact with them and was aware they were retained in the family law proceedings.

[23] On January 8, 2013, the Plaintiff advised Spiegelberg that the CRA maintained that she was personally liable for a large debt of the Corporation in relation to source deductions and unpaid HST and GST. The Plaintiff intended to appeal, but it would not be resolved until after the sale of the matrimonial home closed.

[24] On January 9, 2013, Spiegelberg wrote to Brown indicating that the Corporation owed the CRA for unpaid source deductions and remittances, and for unpaid HST, GST and PST. The Plaintiff sought an indemnity from Paul Finamore for these debts. Brown indicated in a letter on January 17, 2013 that his client would not provide an indemnity at that time and preferred to deal with that issue within the entire property and spousal support settlement.

[25] In February 2013, the Meridian Credit Union commenced an action against the Corporation, the Plaintiff and Paul Finamore seeking damages of $142,287.79 plus interest and costs. The lawsuit was commenced as a result of the Corporation failing to repay a line of credit which was personally guaranteed by the Plaintiff and Paul Finamore. Protopapas was retained by the Plaintiff to file a Statement of Defence and Crossclaim, which was served on or about March 26, 2013. While it was not known until closer to the closing, Paul Finamore did not defend the lawsuit and Meridian Credit Union obtained a default judgment against him and filed a Writ of Seizure and Sale with the sheriff.

[26] In February 2013, the Plaintiff received a Statement of Arrears from the CRA to the Corporation for source deductions in the amount of $186,000.00. In March 2013, the Plaintiff received a letter from the CRA containing a Certificate of Registration Letter claiming that she owed the sum of $83,246.34. This letter indicated that a lien was registered against the title of her property. The Plaintiff believed it was with regards to the unpaid HST of the Corporation. She appealed this assessment and the source deduction debt by alleging “due diligence” in her role as a director of the Corporation. She received no response with respect to her appeals prior to the closing of the sale of the matrimonial home.

[27] On April 10, 2013, Spiegelberg wrote to Brown inquiring whether Paul Finamore also received a Certificate of Registration Letter. Spiegelberg also inquired whether Brown was aware if the Meridian Credit Union had filed a Certificate of Pending Litigation on title to the matrimonial home (neither Spiegelberg nor the Plaintiff were aware that the Meridian Credit Union had obtained the default judgment around that time).

[28] On that same day, Spiegelberg also wrote to Moon requesting that a sub-search of title be completed. Spiegelberg was concerned that there would be insufficient funds to close if both parties received a Certificate of Registration Letter and if the Meridian Credit Union filed a Certificate of Pending Litigation. The Plaintiff was copied on both these letters.

[29] On or about May 1, 2013, Moon received a requisition letter from counsel for the purchasers of the matrimonial home. Several requisitions involved joint debts and liens on title. In particular, the purchaser’s counsel required:

a) proof of discharge of the registered mortgage given to CIBC;

b) release of two separate liens placed on title by the CRA, (WC369173 and WC369174) each in the sum of $83,246.00; and

c) the withdrawal of three separate executions against Paul Finamore personally, which included:

(i) a judgment against Paul Finamore by EMCO Corporation in the sum of $61,106.91;

(ii) a judgment against Paul Finamore by the Meridian Credit Union in the sum of $149,140.19; and

(iii) a requirement that Paul Finamore pay the sum of $1,500.00 to the Ontario Superior Court of Justice for bail he pledged for a former employee, who left the province.

[30] There is no evidence that this requisition letter was sent to the Plaintiff or Paul Finamore.

[31] After receiving the requisition letter, Moon wrote to the CIBC, the solicitors for Emco Corporation, the solicitors for the Meridian Credit Union, the CRA, and the Ontario Superior Court of Justice, seeking payout statements. In his letter to the CRA, both writs were referenced.

[32] On May 3, 2013, Spiegelberg wrote to Brown and indicated that the CRA had filed twice against both the Plaintiff and Paul Finamore for the sum of $83,246.00 and indicated that the total debt owing was only $83,246.00. Spiegelberg believed a further debt of approximately $187,000.00 for source deductions and remittances was still outstanding, but the CRA would not be able to register that Certificate prior to closing. The Plaintiff was copied on this letter, but not Moon.

[33] On May 7, 2013, Brown provided Moon with a copy of the Order of Skarica J., dated December 11, 2012, which outlined how the funds were to be disbursed.

[34] On May 8, 2013, Paul Finamore attended at Moon’s office to sign the real estate documentation to close the transaction. At that meeting, he was given a draft trust summary which showed how the proceeds were to be paid out. Brown maintains that Paul Finamore was not aware of the executions against him until that day. The draft trust summary showed that from the proceeds of sale, the following would be paid:

a) the CIBC mortgage;

b) one of the registered liens of the CRA in the sum of $83,317.64;

c) the sum of $1,500.00 owed to the Ontario Superior Court of Justice;

d) the sum of $61,092.12 owing to Emco Corporation; and

e) approximately $149,000.00 owing to the Meridian Credit Union.

After the usual real estate commission, legal fees and other adjustments, only approximately $12,000.00 would be left. No provision was made in the draft trust summary outlining the fact that most of the debts listed were those of Paul Finamore only. Paul Finamore signed the necessary closing documentation and indicated he would speak to Brown.

[35] On May 9, 2013, the Plaintiff attended at Moon’s office to sign the real estate documentation. On that day, for the first time, she was made aware of the additional debts and was provided with a copy of the same draft trust summary. Despite being aware of amounts to be paid, the Plaintiff did sign the necessary closing papers on that day and indicated to Moon that she would be discussing the debt payments with Spiegelberg.

[36] On May 9, 2013, Spiegelberg sent an urgent letter to Brown demanding an explanation for the Emco Corporation debt and the Meridian Credit Union debt. Moon was not copied on that letter. At no time was Moon instructed by the Plaintiff, Paul Finamore, Spiegelberg or Brown to disperse the proceeds of sale any differently than was set out in the draft trust summary. At no time did Moon receive any instructions from either the Plaintiff, Paul Finamore or their counsel to not close the transaction.

[37] On May 9, 2013, Moon also received two payout letters from the CRA. The first letter referenced Sylvia Finamore and lien WC369174. The CRA stated that the amount required to pay out that lien was $83,317.64. The second letter referenced Paul Finamore and lien WC369173, and requested the same amount to discharge that lien. No explanation was provided by Moon why only one lien of the CRA was paid from the proceeds of the sale.

[38] On the scheduled closing date of May 10, 2013, Moon communicated with both the Plaintiff and Paul Finamore to deal with a last-minute abatement to the purchase price to deal with some items that were missing from the home. No objections were raised to closing, and the transaction closed on May 10, 2013. The funds were paid out in accordance with the trust summary.

[39] On May 16, 2013, Protopapas wrote to Moon and highlighted that the Emco Corporation debt and the Meridian Credit Union debt were debts of Paul Finamore and should not have been paid from the Plaintiff’s share of the proceeds. Accordingly, by at least that date, the Plaintiff was aware that these two debts were in the name of Paul Finamore alone. As a result, Protopapas demanded reimbursement of $105,000 on behalf of the Plaintiff. Moon responded indicating that both the Plaintiff and Paul Finamore had reviewed the draft trust summary prior to closing and at no time advised him to adjust it in any way, or to not complete the sale.

[40] In addition, on May 17, 2013, Moon sent the Plaintiff documentation by e-mail showing the final Trust Ledger Statement and proof of all payments that were made from the proceeds of sale.

[41] Accordingly, the evidence shows that as of May 17, 2013, if not May 9, 2013, the Plaintiff was aware that she improperly paid for one half of Paul Finamore’s Meridian Credit Union judgment, Emco Corporation judgment and his debt to the Ontario Superior Court of Justice.

[42] Given that the Meridian Credit Union debt was paid in full from the proceeds of sale, it discontinued its action against the Plaintiff by filing a Notice of Discontinuance on May 31, 2013. Protopapas maintains that the Plaintiff agreed to discontinue her crossclaim in the Meridian Credit Union action against Paul Finamore as any funds she paid could be pursued in the matrimonial proceeding.

[43] In June 2013, the Plaintiff made independent efforts to ascertain the origin of the Emco Corporation debt, the payment to the Meridian Credit Union, and the source of the $1,500.00 payment made to the Ontario Superior Court of Justice. She travelled to the courthouse in St. Catharines where the Meridian Credit Union claim was commenced and to the courthouse in Toronto where the Emco Corporation judgment was obtained. The Plaintiff admitted in her cross-examination that by mid-June 2013, she understood more about both debts and how they came to be registered against the property.

[44] Spiegelberg ceased representing the Plaintiff in July 2013. The Plaintiff acknowledged receipt of the relevant documents from her matrimonial file on November 15, 2013.

[45] The trial of the family law proceedings was held before Belleghem J. on January 23, 24, and 29, and February 5 and 18, 2014. The Plaintiff represented herself at trial and Paul Finamore was represented by Brown.

[46] The issues of compliance with the Order of Skarica J. and post-separation adjustments took up a great deal of time at the trial. In his judgment, which was released on June 3, 2014, Belleghem J. specifically ordered that one half of the Emco Corporation debt, which was paid by both parties equally on the proceeds of sale of the matrimonial home, be paid back by Paul Finamore to the Plaintiff. Belleghem J. also ordered some other minor financial adjustments in the Plaintiff’s favour.

[47] Belleghem J.’s reasons included minimal discussion on the Meridian Credit Union judgment and whether it should have been paid by Paul Finamore alone. Belleghem J. found that this line of credit was a joint debt and divided it accordingly on the net family property calculation. Belleghem J. accepted the evidence of Paul Finamore that he would never have assumed all the debts of the Corporation given that he and the Plaintiff were joint owners. Belleghem J. did specifically deny the Plaintiff’s request for a post-separation adjustment for the Meridian Credit Union line of credit, but from the judgment, it appears that the request dealt with the Plaintiff’s allegation that Paul Finamore withdrew cash from the line for personal use, post separation. No mention was made of the Plaintiff paying for half of the Meridian judgment against Paul Finamore from her share of the proceeds of sale.

[48] The Plaintiff has provided affidavit evidence, sworn July 25, 2018, and confirmed in her cross-examination that at the trial before Belleghem J., she raised the issues of the Emco Corporation debt and the Meridian Credit Union judgment. She stated that Belleghem J. held that since she was a joint owner of the Corporation, she was jointly responsible for the Meridian Credit Union judgment. She also swears that she advised Belleghem J. that the issue of the CRA debt was still under appeal and that she had not yet received a response.

[49] Finally, the Plaintiff maintains that she tried to raise the issue of the $1,500.00 payment to the Ontario Superior Court of Justice, but that Belleghem J. did not want to hear argument on that issue. She stated in her cross-examination prior to this motion that at the time, she fully understood the nature of the debt to the Ontario Superior Court of Justice, that she knew it was not her debt, and that she discussed it with Spiegelberg within a month of the closing in mid-June 2013.

[50] At the end of the trial, between the equalization payment owed to her and other adjustments, which included one half of the Emco Corporation debt, Paul Finamore was ordered to pay the Plaintiff the sum of $131,407.74.

[51] It should be noted that the Plaintiff has indicated that she is no longer seeking reimbursement for one half of the Emco Corporation debt as she was granted that by Belleghem J. at trial.

[52] In October 2014, prior to the judgment being paid, Paul Finamore made an assignment in bankruptcy.

[53] The Plaintiff has sworn that in August 2014, she was advised by the CRA that her appeal was successful and that she was not responsible for the Corporation’s source deductions debt. In October 2014, the Plaintiff received a second letter from the CRA indicating that she was successful in her appeal and was not responsible for the CRA debt which was the subject of the Certificate of Registration Letter. The Plaintiff indicated that this second letter was with respect to the Corporation’s GST and HST debt. The October letter from the CRA stated:

In regards to the lien registered in your name as instrument number WC369174, no funds were realized by the Agency; therefore, no funds will be refunded.

[54] Following receipt of these letters from the CRA, the Plaintiff requested her file in order to better understand what occurred. Despite her request for further information, it is clear that by October 2014, the Plaintiff was made aware that according to the CRA, the lien that was paid at the closing of the sale of the matrimonial home was the lien registered in the name of Paul Finamore, and not the lien registered in the name of the Plaintiff. Therefore, one half of Paul Finamore’s CRA debt was paid by the Plaintiff. She has admitted to this in her cross-examination in anticipation of this motion.

[55] The evidence also supports this finding. The parties appeared before Belleghem J. on November 10, 2015. From the order made that day, it appears that the Plaintiff sought an adjustment in the judgment. The Plaintiff has also provided evidence that she advised Belleghem J. of the position of the CRA in February 2015 and sought to adjust his judgment accordingly. She was advised by Belleghem J. that he was dealing with costs only and that this issue would have to be addressed in appeal and urged her to retain counsel. Paul Finamore confirmed this in his evidence.

[56] After Paul Finamore declared bankruptcy, the Plaintiff retained new counsel, Mr. Paul Amey, to collect on the unpaid judgment of Belleghem J. In April 2015, Mr. Amey was successful and obtained a judgment ordering that approximately $161,699.10 from Paul Finamore’s RRSP vest to the Plaintiff. This amount included payment for Mr. Amey’s legal fees.

[57] On June 8, 2015, Belleghem J. awarded costs of the trial to Ms. Finamore in the sum of $13,500.00 plus $825.00 in disbursements.

[58] On or about March 1, 2016, the Plaintiff received a package from CRA containing her file. The package contained an internal e-mail dated November 16, 2015, in which the CRA stated that they collected on the lien from Paul Finamore’s share of the equity in the home, and that “the lawyer didn’t calculate things correctly when they did the payout, it actually had nothing to do with us.” The Plaintiff states that is when she “discovered” her cause of action.

[59] After obtaining an extension, the Plaintiff appealed the judgment of Belleghem J. The appeal was argued before the Court of Appeal for Ontario on January 24, 2017 and was dismissed on February 1, 2017. In its reasons, the Court of Appeal stated that the Plaintiff wanted to recalculate the equalization payment because certain debts should not have been treated as joint, but should have only been attributable to Paul Finamore. The Court of Appeal rejected this position indicating that an increase in Paul Finamore’s debts would result in lower equalization payment, and noted that the equalization payment was eliminated by Paul Finamore’s bankruptcy. The Court of Appeal also noted that the Plaintiff had already received an Order that $161,699.10 of Paul Finamore’s RRSP’s be vested in her name.

[60] The Plaintiff states that when she was before the Court of Appeal, she was advised to consider suing the lawyers involved. The Plaintiff then commenced this action on October 12, 2017.

[61] Based on these facts, it is clear that the action is statute barred. The alleged loss occurred on May 10, 2013 when the house transaction closed and the debts were paid. The evidence is clear, and has been admitted by the Plaintiff, that by mid-June 2013, she knew that the judgment by Emco Corporation was against Paul Finamore alone, and that she paid for one half of it through her share of the proceeds of sale of the matrimonial home. It is also clear that by the same time, she was aware that she paid for half of Meridian Credit Union’s judgment against Paul Finamore, and that she improperly paid for one half of Paul Finamore’s debt to the Superior Court of Justice for the bail he posted for a former employee. These payments were made because they were not properly allocated on the trust summary, and either nobody noticed it, or nobody instructed it to be altered before the transaction closed.

[62] The Plaintiff’s understanding of these errors was confirmed at the trial in her family law proceedings in January and February 2014. The Plaintiff gave evidence that the issue of post-separation adjustments, which included these debts, was argued before Belleghem J. In fact, the issue of the debt she paid to Emco Corporation was successfully resolved at trial and Paul Finamore was ordered to pay to the Plaintiff one half of the judgment. Unfortunately, the other two debts were not resolved to the Plaintiff’s satisfaction.

[63] With respect to the CRA debt, no party was aware that this was a debt that should have been paid by Paul Finamore alone until October 2014 when the Plaintiff received a letter from the CRA which stated as such. When the CRA debt was paid in May 2013, the liens of both parties were referenced and as far as the Plaintiff was aware, she was equally responsible for these debts as a director of the Corporation. The Plaintiff’s understanding that she was not responsible for this CRA debt was clear from October 2014, which is supported by her attempt to raise the issue with Belleghem J. in a post-trial attendance to address costs in February 2015. The Plaintiff had sufficient knowledge at that time that she was not liable for the CRA debt, that Paul Finamore was responsible, and that she paid for one-half of his debt at the closing of the sale of the matrimonial home.

[64] Despite all the correspondence and communication referenced above, the Plaintiff claims she did not realize her claim until March 2016 because “she was under severe duress and unable to clearly comprehend what was unfolding due to the loss of the marriage, the loss of the family business, loss of financial income as we all relied on the family business for income, loss of the matrimonial home, defending civil law suit, physical and emotional needs of Paula (adult dependant child) and depending on the lawyer’s direction to fairly represent me.”

[65] The evidence does not support the Plaintiff’s position. Her affidavit evidence and her evidence on cross-examination clearly show that she understood the nature of her claim well in advance. She attempted to advance her claim at her family law trial and was successful on the Emco Corporation issue. She waited over four years after realizing she paid for Paul Finamore’s debts, and three years after arguing these issues again at her family law trial, before she commenced this action.

[66] When determining when a claim was “discovered”, helpful guidance was provided by the Court of Appeal for Ontario in Tender Choice Foods Inc. v. Versacold Logistics Canada Inc., 2013 ONSC 80, aff’d 2013 ONCA 474. At paragraphs 58 to 61, Perell J. states:

[58] The question is whether the prospective plaintiff knows enough facts to base a cause of action against the defendant, and, if so, then the claim has been discovered and the limitation period begins to run: Lawless v. Anderson, 2011 ONCA 102 at para. 23; Soper v. Southcott supra; McSween v. Louis (2000), 2000 CanLII 5744 (ON CA), 132 O.A.C. 304 (C.A.); Gaudet v. Levy (1984), 1984 CanLII 2047 (ON SC), 47 O.R. (2d) 577 (H.C.J.) at p. 582.

[59] However, the discovery of a claim does not depend upon the plaintiff knowing that his or her claim is likely to succeed; the limitation period runs from when the prospective plaintiff has or ought to have had, knowledge of a potential claim, and the later discovery of facts which change a borderline claim into a viable one does not postpone the discovery of the claim: Oakville Hydro Electricity Distribution Inc. v. Tyco Electronics Canada Ltd. (2004), 2004 CanLII 13633 (ON SC), 71 O.R. (3d) 330 (S.C.J.) at paras. 10-13; Giakoumakis v. Toronto (City), [2009] O.J. No. 55 at para. 20 (S.C.J.).

[60] Discovery does not depend upon awareness of the totality of the defendant’s wrongdoing. Section 5(1)(a) of the Limitations Act, 2002 prescribes that discovery occurs when the plaintiff knows or ought to know of an injury caused by an act or omission of the defendant and having regard to the nature of the injury legal proceedings would be an appropriate way to seek a remedy. For the limitation period to begin to run, it is enough for the plaintiff to have prima facie grounds to infer that the defendant caused him or her harm, and 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 at para. 18; Gaudet v. Levy, supra.

[61] The circumstance that a potential claimant may not appreciate the legal significance of the facts does not postpone the commencement of the limitation period if he or she knows or ought to know the existence of the material facts, which is to say, the constitute factual elements of his or her cause of action. Error or ignorance of the law or legal consequences of the facts does not postpone the running of the limitation period: Nicholas v. McCarthy Tétrault, 2008 CanLII 54974 (ON SC), [2008] O.J. No. 4258 (S.C.J.), aff’d [2009] O.J. No. 686 (C.A.), leave to appeal to S.C.C. ref’d [2009] S.C.C.A. 476.

[67] The evidence is clear and uncontested that the Plaintiff knew the material facts, the relevant parties and the damages sustained more than two years prior to commencing her claim. The contents of the CRA file received in March 2016 only provided more detail, and was only in relation to the CRA claim.

[68] Accordingly, the action is statute barred. Summary judgment shall be granted dismissing the Plaintiff’s claim in its entirety.

C. Liability of Ian Brown

[69] While the limitation period completely disposes of this action, I feel it is important to add that even if the action was not statute barred, summary judgment would be granted dismissing the action as against Brown.

[70] Brown was never retained by the Plaintiff. As stated by the Court of Appeal for Ontario in Diamond Contracting Ltd. v. MacDearmid, 2006 CanLII 24444, at para. 3, a lawyer owes no duty of care to the clients of opposing counsel in litigation. A lawyer owes a duty of care to their own client, and not other clients represented by other counsel. During the period when the matrimonial home was sold, the Plaintiff had her own counsel. Brown should never have been a party to this lawsuit.

Conclusion

[71] Given my decision, it is not necessary to deal with the remaining issues.

[72] For the reasons set forth herein, I make the following orders:

a) The motion brought by Sandra Spiegelberg, Les Protopapas and Protopapas & Spiegelberg, Barristers and Solicitors, seeking to dismiss this action as against these Defendants, is granted;

b) The motion brought by Jim Moon and Moon Law Office, seeking to dismiss this action as against these Defendants, is granted; and

c) The motion brought by Ian James Howard Brown and Brown Family Law, seeking to dismiss this action as against these Defendants, is granted.

[73] The parties are encouraged to resolve the issue of costs between themselves. If they are not able to do so, the moving parties may serve and file their written submissions on costs, limited to two pages, single sided and double spaced, exclusive of a costs outline, offers, and case law, no later than 4:30 p.m. on September 27, 2019. Responding submissions by the Plaintiff, with the same size restrictions, may be served and filed by 4:30 p.m. on October 18, 2019. The moving parties may serve and file reply submissions, with the same size restrictions, no later than 4:30 p.m. on November 1, 2019. If a moving party does not file costs submissions by September 27, 2019, no costs shall be ordered in favour of that moving party.

Fowler Byrne J.

Released: September 11, 2019

COURT FILE NO.: CV-17-412

DATE: 2019 09 11

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

SYLVIA CATHERINE FINAMORE

Self Represented

• and -

JIM MOON, MOON LAW OFFICE, SANDRA SPIELGELBERG, PROTOPAPAS & SPIEGELBERG BARRISTERS AND SOLICITORS, LESS PROTOPAPAS, PROTOPAPAS & SPIEGELBERG, BARRISTERS AND SOLICITORS, IAN JAMES HOWARD BROWN, BROWN FAMILY LAW, AND ROBERT DOWHAN, SMITH VALERIOTE LAW FIRM LLP

Michael Bordin, for the Defendants Les Protopapas, Sandra Spiegelberg and Protopapas & Spiegelberg, Barristers and Solicitors

Richard Greene, for Ian James Howard Brown and Brown Family Law

Dawn Phillips-Brown, for Jim Moon and Moon Law Office

REASONS FOR JUDGMENT

Fowler Byrne J.

Released: September 11, 2019