Court File and Parties
Court File No.: CV-18-2884 Date: 2020 08 05
Superior Court of Justice - Ontario
Re: Jayesh Kumar Trivedi (Plaintiff, Responding Party) and Anthony Hudd and ASH Payment Solution Inc. (Defendants, Moving Party)
Before: D. E. Harris J.
Counsel: S.R. Mackay for defendants, moving party K. Sooch for plaintiff, responding party
Endorsement
[1] The defendants move for summary judgment to dismiss this action on three grounds: 1. It is statute barred by reason of the Limitations Act, 2002 S.O. 2002, c. 24, Sch. B; 2. Cause of action estoppel; and 3. A failure to pay a previous costs award.
[2] The parties were in a business together beginning in 2011 of purchasing and renting point of sale electronic payment terminals. The parties had a falling out in 2015.
[3] The plaintiff brought a small claims action in 2016 against ASH Payment Solution Inc. alleging a failure to pay commissions after the break down of the business relationship. Mr. Hudd is a principal in ASH. In the fall of 2017, the small claims action was dismissed. On July 22, 2018, this action was commenced.
[4] Despite ongoing correspondence between them, the plaintiff had Mr. Hudd noted in default. When the plaintiff refused to consent to setting aside the noting in default, the defendants brought a motion. The default was set aside on November 12, 2019, Justice Woollcombe commenting in her endorsement that the plaintiff had unreasonably withheld consent to the motion. She ordered costs of $4000 which the plaintiff has yet to pay. He now proposes to pay costs on a lengthy installment plan.
The Limitations Act, 2002 Issue
[5] Section 4 of the Act specifies that no action shall be taken after the second anniversary of the day the claim was discovered. Section 5(1) and (2) provide,
5(1) Discovery
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).
5(2) Presumption
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.
[6] I agree with the defendants that this action is statute barred. The claim was “discovered” at the latest in January of 2016. These are the circumstances. The plaintiff’s statement of claim asserts in paragraphs 12-14 that when there was money missing from the business for reasons unknown in July 2015, the plaintiff injected his own funds to get the business back up and on track. These monies are the subject matter of this action.
[7] Emails between the plaintiff and the personal defendant leave no doubt about the time of discovery. The plaintiff wrote the defendant an email dated January 28, 2016 in which he said that if the defendant had a lawyer draw up papers than the plaintiff would not have to take legal action. If not, he would prove that the defendant had committed negligence. Later in the same email, he specified that he had lost $56,000 and another $13,000 that had not been paid in residuals. The $56,000 corresponds to the claim in this action while the $13,000 relates to the small claim action.
[8] The defendant wrote back a few minutes later to allege that the plaintiff was picking numbers out of his head. He said, “Do what you have to do Jay but remember that every action has an equal or greater reaction, and I am happy to hand down the greater reaction.” This message, in misstating Newton’s Third Law of Motion for use as business braggadocio, laid down the gauntlet. He was saying, as counsel paraphrased, “Come get me.”
[9] The plaintiff did not do so until July 2018, two years and six months plus after this email exchange, opt for legal action. The email message proves that the claim was discovered in the legal sense, at the latest, in January of 2016. That is: i. The loss was alleged by the plaintiff; ii. He wrote that the defendant owed him compensation for it; iii. The omission of act was that of the defendant; and iv. Often the most difficult criteria, there was explicit recognition in the plaintiff’s email that a legal proceeding would be the appropriate means to pursue a remedy: see generally Tender Choice Foods Inc. v. Versacold Logistics Canada Inc., 2013 ONSC 80 at paras. 52-65.
[10] The email exchange is the equivalent of a smoking gun for the purposes of the Limitations Act, 2002. The facts are not in dispute and there is no genuine issue requiring a trial. Summary judgment is appropriate: Alexis v. Darnley, 2009 ONCA 847, [2009] O.J. No. 5170 at para. 12. It is unnecessary to consider the defendants’ other two arguments. The plaintiff’s action against the defendants is dismissed. If costs cannot be agreed upon, the defendants shall deliver submissions of not more than 2 pages, excluding the bill of costs, within 30 days; the plaintiff shall have the same limit and shall file within 20 days of the defendant.
D.E. HARRIS J.