COURT FILE NOS.: CV-19-620609, CV-19-631840, CV-19-633071

DATE: 20210406

SUPERIOR COURT OF JUSTICE – ONTARIO

B E T W E E N :

THE ESTATE OF ANNA NTAKOS, deceased, by PETER NTAKOS,

TAMMY BOULIAS and OLGA FOUSTERIS, the representatives of the Estate

and DUPONT CONSTRUCTION SUPPLIES LTD.

Plaintiffs

• and -

KONSTANTINOS NTAKOS a.k.a.

GUS NTAKOS, RUBINOVICH NEWTON LLP, FOGLER RUBINOFF LLP

and PAUL ROONEY

Defendants

B E T W E E N :

DUPONT CONSTRUCTION SUPPLIES LTD., THE ESTATE OF ANNA NTAKOS

Represented by PETER NTAKOS, OLGA FOUSTERIS, and TAMMY BOULIAS,

in their personal capacities and as executors, and NTAKOS HOLDINGS LTD.

Applicants

• and -

SHIMMERMAN PENN LLP, DOUG HARTKORN, BRAUTI THORNING LLP,

KONSTANTINOS NTAKOS a.k.a. GUS NTAKOS, KREITMAER INC., LEASIDE

CONCRETE, MASONRY AND LANDSCAPING SUPPLIES LTD., PAUL

ROONEY, and 2324973 ONTARIO LTD.

Respondents

B E T W E E N :

THEOFANIS NTAKOS

Plaintiff

• and -

KONSTANTINO NTAKOS a.k.a.

GUS NTAKOS, RUBINOVICH NEWTON LLP, FOGLER RUBINOFF LLP and

PAUL ROONEY

Defendants

BEFORE: Paul B. Schabas J.

COUNSEL: David Steinberg and Eric Freeman, for Konstatinos Ntakos

William Pepall and Jameel Madhany, for Paul Rooney

Michael Kestenberg, for Fogler Rubinoff LLP

Paul Robson, Richard Watson and Samir Chhina, for the Estate of Anna Ntakos represented by Peter Ntakos, Olga Fousteris and Tammy Boulias in their personal capacities and as executors, Dupont Construction Supplies Ltd., Ntakos Holdings Ltd., and Theofanis Ntakos

HEARD: December 16 and 17, 2020

reasons for judgment

Introduction

[1] In 2020 I was appointed to case manage four proceedings commenced in 2019. They involve the same parties and arise from disputes over a family business, Dupont Construction Supplies Inc. These disputes date back over 20 years and have been the subject of another action in this Court, which was settled and dismissed in 2015. The issues have also been addressed in litigation in the Tax Court of Canada.

[2] On December 16 and 17, 2020, I heard motions brought by the defendants/respondents in seeking the dismissal of three of the proceedings brought against them. For the reasons set out below, those motions are granted. In short, among other things I am satisfied that the proceedings are an abuse of process as they amount to an attempt to re-litigate issues that were resolved long ago, are barred by releases signed by the plaintiffs and, in any event, are statute-barred by the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, and the Trustee Act, R.S.O. 1990, c. T.23.

Background

[3] In 1978, three brothers who had immigrated to Canada from Greece – John, Konstantinos (“Gus”) and Theofanis (“Ted”) Ntakos – purchased a business, Dupont Construction Supplies Ltd. (“Dupont”), which supplied cement and other construction materials to local contractors and customers in the Toronto area. The brothers were equal shareholders in Dupont.

[4] The business did well, and the brothers also acquired rural investment properties together. Dupont became a wholly owned subsidiary of Ntakos Holdings Ltd. (“Holdings”), which the three brothers also owned equally. Dupont remained the operating company and was operated by the family. John, Gus and Ted worked there, along with some of their children.

[5] John died in 1995 and his shares in Holdings went to his wife, Anna Ntakos (“Anna”). In 2004, Anna transferred control over her shares to her son, Peter Ntakos (“Peter”), and following her death in October 2004 ownership of her shares passed to her three children, Peter, Olga Fousteris (“Olga”), and Tammy Boulias (“Tammy”). Peter, Olga and Tammy also worked at Dupont.

[6] Prior to his death in 1995, John had overseen financial management of Dupont. Not long after John died, differences emerged between Ted and Gus regarding the company’s finances. In particular, disputes arose over shareholder contributions, draws and advances, and the relative interests of the three shareholders. These issues raised significant tax implications for the shareholders and the companies.

[7] In about 2003, Dupont and Holdings retained a lawyer, Paul Rooney (“Rooney”), to advise the companies as they worked with their accountants – Rubinovitch Newton LLP and, after 2003, Shimmerman Penn LLP – to review and rectify these issues.

[8] In July 2004, based on a report from Rooney, Gus, Ted and Anna appeared to reach agreement on the issues, and they signed acknowledgements confirming amounts they each had received from and owed to Dupont and/or Holdings (“the companies”). These were not insubstantial. A shareholders agreement prepared by Rooney was signed by each of them. They each confirmed they had independent legal advice.

[9] However, there continued to be conflict. In particular, it appears that Ted owed the companies approximately $900,000 which he was not able to repay. As a result, in 2005 Ted was bought out by Gus and Anna’s children (Peter, Olga and Tammy).

[10] Under the terms of the Share Purchase Agreement (“SPA”) executed on or about July 19, 2005, Ted’s debt to the companies was forgiven and he was paid $500,000. The parties also signed releases. Ted’s Full and Final Release (the “2005 Release”) was broad in scope. It “irrevocably and unconditionally” released Holdings, Dupont, “and their respective directors, officers, employees, agents and representatives, current or former”, as well as Gus, Peter, Olga and Tammy from, among other things:

any and all Claims (as hereinafter defined) which the Releasor has now, or may have in the future, against any Released Person, relating to or arising out of any cause, matter or thing whatsoever existing up to and including the date hereof, including, without limitation, any and all Claims of the Releasor arising from or by reason of:

(a) the Releasor having been an officer, director, shareholder and/or employee of the Corporation or Dupont Construction; and/or

(b) the termination of the Releasor's employment with the Corporation or Dupont Construction;

including, without limitation…any and all Claims of the Releasor for damages in tort or contract…

[11] The term “Claims” was defined to mean “all actions, causes of action, suits, duties, debts, accounts, contracts and covenants (whether express or implied), claims and demands whatsoever for damages, indemnity, costs, interests, loss or injury of every nature and kind in law or in equity.”

[12] The evidence is clear that the parties were represented by counsel during the negotiations of the settlement with Ted. Ted was represented by Stockwoods LLP, and Gus was represented by Fogler Rubinoff LLP, which had been advising Gus since 2001.

[13] Following execution of the SPA in 2005 Ted had no further involvement in the Dupont business and was estranged from the family until contacted by Peter in late 2019. In 2007 Ted declared bankruptcy.

[14] Pursuant to the SPA Gus became a 50 percent shareholder in Holdings and, indirectly, in Dupont; Peter, Olga, and Tammy held the other 50 percent. But there was no peace. About six months after Ted’s departure, in February 2006, Peter, Olga, and Tammy commenced an action against Gus and others, including Rooney and Shimmerman Penn LLP (the “2006 Action”). This action was brought by Peter, Olga and Tammy in their personal capacities and as executors of Anna’s Estate. Dupont and Holdings were also named as plaintiffs.

[15] The 2006 Action alleged that Gus had misappropriated money from Dupont and that he had orchestrated an improper accounting of shareholder distributions and benefits. These were the same issues that the parties had been addressing in the years leading up to the acknowledgements, shareholders agreement and Ted’s buyout in 2004 and 2005.

[16] The 2006 Action pleaded that Rooney and Shimmerman Penn LLP were negligent and acted in breach of their fiduciary and other duties to the plaintiffs, and in particular to Anna Ntakos. The claim against Rooney included allegations that he had a conflict of interest and that Anna should not have signed the acknowledgement prepared by Rooney in 2004, which resulted in significant tax liabilities to her. Nevertheless, Rooney continued to provide legal services to Dupont and Holdings until July 2007.

[17] In 2007, Peter, Olga and Tammy, as Trustees Anna’s Estate, also commenced an appeal to the Tax Court of Canada regarding reassessments of Anna’s income arising from management fees in 2004 which the Estate claimed Anna did not receive, but which she had acknowledged receiving in the 2004 documents prepared by Rooney. The veracity of the receipt of these fees was also an issue in the 2006 Action.

[18] Fogler Rubinoff LLP defended Gus in the 2006 Action. There was extensive oral and documentary discovery. Forensic accountants were engaged to review Dupont’s books and records. Olga and Tammy were the custodians of many of the documents as they ran the Dupont office. Rooney produced over 1600 documents and was examined for discovery for four days.

[19] In March 2012, after six years of litigation, a settlement of the 2006 Action was negotiated with Gus, through counsel. The plaintiffs and Gus signed detailed Minutes of Settlement in which, among other things, Gus surrendered his shares in Holdings, and Holdings transferred two of three rural properties to Gus. The 2006 Action was to be dismissed on consent against Gus and related defendants but continued against Rooney.

[20] As part of the 2012 settlement, Gus undertook to make best efforts to discharge a mortgage on one of the rural properties held by Rooney as security for unpaid legal fees (the “Rooney Mortgage”). However, it was agreed that failing such a discharge Dupont and Holdings would indemnify Gus for any amounts payable under the mortgage.

[21] The plaintiffs provided a Release to Gus (the “2012 Release”), which included his:

agents, employees, representatives and solicitors, including their successors and assigns, from all manner of actions, causes of action, suits, debts, duties, dues, accounts, bonds, covenants, contracts, liabilities, indemnities, complaints, costs, claims and demands for damages, monies, losses, indemnity, interest in loss, or injuries which the Releasors now have or hereafter can, shall or may have, either at equity or in law, for, or by reason of any cause, manner or thing whatsoever, and in particular, with respect to all matters raised or which could have been raised out of the matters pleaded in the [2006 Action] including all damage, loss or injury not now known or anticipated but which may arise in the future and all effects and consequences thereafter.

[22] The 2012 Release also provided that it “shall operate conclusively as an estoppel in the event of any claim, action, complaint or proceeding which might be brought in the future by the Releasors with respect to the matters covered by this Full and Final Release.”

[23] Following the settlement with Gus, in October 2012 Anna’s Estate continued to assert the same misconduct by Gus in the trial of its tax appeal launched in 2007. In a decision of the Tax Court of Canada released on November 21, 2012, Anna’s Estate was successful in its appeal. Miller J. concluded that Anna had not received the management fees that had been acknowledged in 2004, and that the invoice for those management services “created a fiction”: Ntakos Estate v. Her Majesty The Queen, 2012 TCC 409, at para. 29.

[24] In 2015 Rooney brought a motion for summary judgment in the 2006 Action. This led to a settlement in which the action was dismissed by Conway J. on March 10, 2015 “on a without costs basis in accordance with the parties’ minutes of settlement” (the “2015 Dismissal Order”).

[25] Five days later, the plaintiffs, including Dupont, Holdings, Peter, Olga, Tammy and Anna’s Estate, released Rooney from

any and all actions, causes of action, claims, suits, debts, accounts, damages and demands of whatsoever nature, whether in contract or in tort or arising as a result of a fiduciary duty or by virtue of any statute or upon or by reason of any damage, loss or injury, existing to the date of the execution of this Release and, without limiting the generality of the foregoing, from any and all matters that were pleaded in, or could have been pleaded by the Releasers against the Releasee, in [the 2006 Action].

The Release also stated that it was “intended to cover, and does cover, not only all known injuries, losses and damages, but also injuries, losses and damages not now known or anticipated but which may later develop or be discovered, including all the effects and consequences thereof” (the “2015 Release”).

[26] Matters did not end there, however, as in 2015 and the years following, Anna’s Estate was continuing to address tax issues dating back to the 1998-2003 period. This included an application to the Tax Court of Canada for an extension of time to file notices of objections for those tax years. Following a hearing at which Lionel Newton, who had been the accountant for the companies during those years, testified, on November 14, 2018 Bocock J. found that Anna had lacked the mental capacity to have made certain filings in 2003 relating to adjustments in income for 1999, 2001 and 2002: Ntakos Estate v. Canada, 2018 TCC 224. In reaching his conclusion, among other things Bocock J. did not accept the evidence of Mr. Newton and raised concerns that Ted and/or Gus had caused the filings to be made.

[27] As a result of the decision of Bocock J., Peter has asserted on this motion, on behalf of Anna’s Estate, himself, Olga, Tammy, Dupont and Holdings, that “it was clear to the Court that there had been an abundance of inscrutable steps taken by both Rubinovich [Newton LLP] and Gus, which effectively caused great benefit to fall upon Gus and great detriment to fall upon Anna and Ted.” As Peter went on to state, “[t]he decision gave us a new light on the dispute with Gus and provided us with confirmation of the fraudulent actions taken up by Gus and the Gus Defendants that we had never possessed before.”

[28] Peter has also stated that, prior to the October 2018 hearing before Bocock J., they “came across certain correspondence” from Rubinovitch Newton, which included an invoice to Dupont which referred to Fogler Rubinoff LLP as “your lawyers.” This, Peter states, “sparked a journey of investigation” by him, Olga and Tammy which he believes supports a claim that Fogler Rubinoff LLP, Rooney and Gus participated in unlawful acts to assist Gus in stealing from Anna’s Estate, Ted and the companies.

[29] Peter has also identified a few documents that indicate that Fogler Rubinoff LLP assisted in preparing certain mortgage documents for Gus and Ted to sign on behalf of Holdings in 2003 and 2009 which, it is asserted, demonstrates that Fogler Rubinoff LLP was in a conflict of interest acting for both Gus and the companies.

[30] In addition, Peter notes that Fogler Rubinoff LLP had access to the companies’ minute books and that it was provided with financial information about the companies; however, it is not explained how this supports the allegations of fraud and conspiracy now asserted against Gus, Rooney and Fogler Rubinoff LLP. Nor does Peter explain why any of these documents are only being raised now.

[31] Peter has also stated on this motion that the reason for the 2012 settlement with Gus was that “we were unable to keep up with the rising legal fees and realized that we could not sustain both proceedings [the 2006 Action and the tax appeal that was then being pursued], and therefore out of a vulnerable and impecunious position, decided to settle the 2006 Action with Gus.”

The current proceedings

[32] In early May 2019 Gus and his numbered company, 2324793 Ontario Limited, commenced an application against Holdings and Peter to enforce an arbitration agreement arising from the Rooney Mortgage (“Gus’s Application”). The Rooney Mortgage had been assigned by Rooney to Gus’s company following enforcement proceedings initiated by Rooney in 2014. That enforcement action, which was against Holdings, Peter and Gus, was resolved by way of a payment of a sum of money into escrow and an agreement to arbitrate the issues, which Gus now seeks to enforce.

[33] Two weeks after Gus issued his application to enforce the arbitration agreement, on May 24, 2019 the Estate (through its representatives Peter, Tammy and Olga) and Dupont issued a Statement of Claim against Gus, Rooney, Fogler Rubinoff LLP and Rubinovich Newton LLP (the “Estate Action”). The Estate Action, as I will elaborate below, sues the defendants for actions allegedly taken by them in the early 2000s which are similar, if not identical, to the claims made in the 2006 Action.

[34] Six months later, on November 28, 2019, Dupont, the Estate, Holdings and Peter, Olga and Tammy, issued an application against Gus, his numbered company, Rooney, Shimmerman Penn LLP and others seeking declarations that the 2012 Minutes of Settlement, the 2015 Release and the arbitration agreement with Gus that is the subject of Gus’s Application, be found void ab initio (the “Estate Application”).

[35] Finally, in December 2019, following what he describes as a “surprising call” from Peter after being estranged from the family for many years, Ted commenced an action against Gus, Rubinovich Newton LLP, Fogler Rubinoff LLP and Rooney (“Ted’s Action”). This action also deals with allegations of wrongdoing between 1997 and 2004 leading to the settlement and buyout of Ted in 2005.

[36] Ted, Anna’s Estate, Dupont, Holdings, Peter, Olga and Tammy are all represented by the same counsel in each of these four proceedings, Paul Robson.

[37] On April 22, 2020, following my appointment as case management judge, I held a case conference to determine how the cases should proceed. At that time, Mr. Robson advised that he was abandoning proceedings against some additional parties named as respondents in the Estate Application. I directed that motions for summary judgment and/or to strike out the Estate Action, the Estate Application and Ted’s Action should proceed and be heard together. Gus’s Application to enforce the arbitration agreement was adjourned pending the outcome of the motions.

[38] A schedule was set for the exchange of evidence, cross-examinations and factums, and a hearing was scheduled for September 2020. However, in early September I granted Mr. Robson’s request for an adjournment to December 16 and 17, 2020, on which date the motions were heard.

Issues

[39] Gus moves for summary judgment dismissing the Estate Action and Ted’s Action pursuant to Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), on the following grounds:

(a) That the actions are barred by the settlements and releases signed in 2005 and 2012, and by the 2015 Dismissal Order, and there are no grounds to set aside those settlements;

(b) The claims are statute-barred pursuant to the Limitations Act, 2002, and the Trustee Act;

(c) The claims in the Estate Action are res judicata and an abuse of process; and

(d) Ted is an undischarged bankrupt without capacity to commence or pursue his action.

[40] Gus also moves for an order under Rule 21 dismissing, staying, or striking para. 1(c) of the Estate Application, which seeks to have the 2012 Settlement declared void, on the ground that this is already being sought in the Estate Action and is an abuse of process.

[41] Rooney seeks to have the Estate Action and the Estate Application dismissed against him pursuant to Rule 21 of the Rules on the grounds that:

(a) The action is an abuse of process as it is an attempt to relitigate matters that were the subject of another action that has been dismissed;

(b) The action is barred by the 2015 Release and the 2015 Dismissal Order; and

(c) The claims are statute-barred pursuant to the Limitations Act, 2002 and the Trustee Act.

[42] Rooney also moves for summary judgment in Ted’s Action on the following grounds:

(a) The action is barred by the 2005 Release;

(b) The action is statute-barred by the Limitations Act, 2002;

(c) Ted has no cause of actions against Rooney; and

(d) Ted’s causes of action, if any, vested in his trustee in bankruptcy, and Ted does not have the capacity to commence or continue this action.

[43] Fogler Rubinoff LLP seeks summary judgment dismissing the Estate Action and Ted’s Action on the following grounds:

(a) the claims are statute-barred pursuant to the Limitations Act, 2002 and the Trustee Act;

(b) the claims are an abuse of process in light of the 2012 Release; and

(c) that Fogler Rubinoff LLP owed no duties to the plaintiffs.

[44] Fogler Rubinoff LLP also seeks a dismissal of the actions as being an abuse of process pursuant to Rule 21.

[45] Rubinovich Newton LLP has not brought any motions at this time.

Appropriateness of Summary Judgment

[46] At the outset of the hearing of these motions on December 16, 2020, Mr. Robson submitted that the motions for summary judgment should not proceed. Although these motions had been scheduled by me eight months earlier in April 2020, this was the first time Mr. Robson made such an objection.

[47] Mr. Robson submitted that as Rubinovich Newton LLP is not a party to these motions the proceedings will not be resolved. He also argued that as Rubinovich Newton LLP has pleaded that Fogler Rubinoff LLP acted for Dupont, there is a risk of inconsistent findings. The actions, it is also said, require the laying of a detailed factual foundation. Further, as the plaintiffs challenge the credibility of Gus’s evidence and complained that the cross-examination of Gus had been frustrated, the matters need to be dealt with at a trial.

[48] In my view, the summary judgment motions are appropriate.

[49] Rule 20.04(2)(a) of the Rules states that “the court shall grant summary judgment if […] the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.” The word “requiring” was added in 2010. At that time Rule 20 was also amended to provide judges with the discretion to use additional fact-finding powers designed to expand the scope and use of summary judgment.

[50] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 (“Hryniak”), the Supreme Court of Canada addressed the issue of summary judgment, including when it is appropriate and the test to be met. Karakatsanis J. summarized the Court’s position as follows, at para. 4:

In my view, a trial is not required if a summary judgment motion can achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.

[51] At para. 49 of Hryniak Karakatsanis J. continued:

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.

[52] Recently, in Royal Bank of Canada v. 1643937 Ontario Inc., 2021 ONCA 98 (“Royal Bank”), the Court of Appeal noted, at para. 27, that “motion judges are required to engage with the Hryniak framework process… look at the evidentiary record, determine whether there is a genuine issue requiring a trial, and assess, in their discretion, whether resort should be taken to the enhanced powers under rr. 20.04(2.1) and (2.2) of the Rules of Civil Procedure.”

[53] The Hryniak framework is summarized by the Court of Appeal at para. 24 of Royal Bank as follows:

1. First, the motion judge should have determined if there was a genuine issue requiring a trial based only on the evidence before her, without using the enhanced fact-finding powers under r. 20.04(2.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

2. Second, if there appeared to be a genuine issue requiring a trial, the motion judge should have determined if the need for a trial could be avoided by using the enhanced powers under r. 20.04(2.1) – which allowed her to weigh evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence – and under r. 20.04(2.2) to order that oral evidence be presented by one or more parties.

[54] In this case I do not need to utilize the enhanced fact-finding powers contained in Rule 20. The issues raised involve facts which are largely not in dispute. They depend on a review of prior court proceedings, judgments and documentary evidence including settlements and releases signed by the plaintiffs to support arguments that the actions and application are res judicata, an abuse of process and barred by limitation periods. These issues do not depend on findings of credibility. They are threshold or “gating” issues that do not require a dive into the merits of the allegations of fraud, conspiracy and misappropriation. Summary judgment can thereby “save the parties the cost and delay associated with going to trial on a number of other issues”: 2287913 Ontario Inc. v. Blue Falls Manufacturing Ltd., 2015 ONSC 7982, at para. 10.

[55] The fact that these threshold issues do not involve consideration of the merits of the allegations in the claims answers the concern about the absence of Rubinovich Newton LLP and its pleading, as well as the allegedly frustrated cross-examination of Gus.

[56] I do not see the absence of Rubinovch Newton LLP on these motions as a bar to considering summary judgment. The fact that one party chooses not to bring a motion for summary judgment does not operate as a veto to prevent others from bringing such a motion. While in some cases there may be a concern about inconsistent verdicts due to the need to delve into the merits, it does not arise here.

[57] The fact that Rubinovich Newton LLP has pleaded that Fogler Rubinoff LLP was retained by Dupont may be relevant to the merits of the action but is not relevant to the issues raised by the moving parties. This is quite different from the situation in Healthy Lifestyle Medical Group Inc. v. Chand Morningside Plaza Inc., 2019 ONCA 6, in which a motions judge refused to consider a defence which she had observed might raise a genuine issue for trial had it been properly pleaded. In light of the issues raised on these motions, I disagree with Mr. Robson that it was necessary for Fogler Rubinoff LLP to “dislodge” the pleading by Rubinovich Newton LLP, which goes to the merits of the action, not to the issues and defences put forward on these motions.

[58] Although Rubinovich Newton LLP has not joined the others in moving to have the actions dismissed or struck out, it too has pleaded a defence under the Limitations Act, 2002, and may have chosen to see how the other parties fare on that issue, and others, before bringing its own motion.

[59] As for Gus’s cross-examination, which the plaintiffs chose to conduct largely in writing, I note that it focused on the merits of the claim and appears to have been more like an examination for discovery on issues dating back to the early 2000s. It did not address the issues raised by the moving parties set out in Gus’s affidavit.

[60] On a motion for summary judgment, the parties are required to put their best foot forward on the issues. As the Court of Appeal stated in Toronto-Dominion Bank v. Hylton, 2012 ONCA 614, at para. 5:

A party moving for summary judgment has the evidentiary burden of showing there is no genuine issue for trial. Once this burden is discharged the responding party must prove that its defence has a real chance of success. Each party must put its best foot forward to establish whether or not there is an issue for trial. The court is entitled to assume that the record contains all the evidence the parties would present at trial. [Emphasis added.]

[61] The best foot forward requirement also means the full foot forward. As Corbett J. stated in Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at para. 33: “The court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial.” Or, as Karakatsanis J. stated when she was a judge of this court: “The court is entitled to assume that the record contains all the evidence which the parties will present if there is a trial”: New Solutions Extrusion Corporation v. Gauthier, 2010 ONSC 1037, at para. 12.

[62] I appreciate that in some cases discoverability is an issue that may need to be addressed at a trial; however, as noted by Myers J. in RNC Corp. v. Johnstone, 2020 ONSC 7751, at para. 3:

A limitation period can present a neat issue with its own set of facts. In many cases, a motion for summary judgment on a limitation period can require the court to review just a few facts that are discrete or separate from the facts that form the merits of the claim and require no findings on the credibility of any witness’s testimony. Resolving a case on that basis can be a very efficient, affordable process that avoids the need for lengthy, complex, expensive discovery and trial on the merits.

[63] In my view, this is such a case. The issues raised by the moving parties are discrete and, if successful, will avoid a review of the underlying claims which would indeed require lengthy discovery and a trial. Summary judgment is intended for precisely these types of issues. The responding party has not been frustrated in putting its best foot forward on the relevant issues. In my view, the issues raised by the moving parties do not require a fuller appreciation of the facts that might occur at a trial, and the risk of “inconsistent findings and substantive injustice” is low: Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438, at para. 37.

The Estate Action

Abuse of Process

[64] The Estate Action sues the defendants for actions allegedly taken by Gus, Rooney, Fogler Rubinoff LLP and Rubinovich Newton LLP many years ago. This is clear in the opening claim in paragraph 1(a) of the Statement of Claim which seeks general damages “as a result of the 14 years it has taken to unravel the misconduct of the defendants….”

[65] Indeed, all the alleged wrongful acts of the defendants pleaded in the Statement of Claim deal with events in and prior to 2005. The only events mentioned after that date relate to the Tax Court proceedings. Referring to the role of Fogler Rubinoff LLP, it is alleged that “[t]he conflict of that retainer remained unknown to Anna and the other shareholders and the representatives of the Estate until 2016 when the Estate initiated recent Tax Court litigation.” The Statement of Claim goes on to assert, vaguely, that “it was subsequently learned by the representatives of the Estate that Gus and Rooney” had made false entries to the detriment of Anna, and that it was the Tax Court decision of November 2018 “and the testimony given by” Lionel Newton which made the Estate “aware how deeply conflicted Fogler Rubinoff and Rooney were as the parties primarily responsible for the misconduct described herein.”

[66] The Estate Action effectively resurrects the claims made in the 2006 Action and recycles the same allegations concerning the same underlying issues and events that occurred between 1995, when John died, and 2005. A comparison of the two pleadings shows that both actions allege that, following John’s death, Gus and Ted misappropriated funds from Dupont, treating mortgage payments by Dupont on Anna’s home as income, inducing Anna to sign documents acknowledging receipt of funds as “management fees” that were never paid, and that as a result she incurred tax liabilities that were improper. As to Rooney, the allegations against him are virtually identical in both actions, which claim that Rooney assisted Gus in his misappropriations.

[67] Similarly, the affidavits from Peter and Olga filed on this motion, when compared to their previous evidence, and the evidence of Tammy, makes clear that they were well aware of the facts underlying these fundamentally identical claims, and made similar allegations in the 2006 Action and in the Tax Court proceedings.

[68] The only new feature of the Estate Action is that it now includes Fogler Rubinoff LLP and Rubinovich Newton LLP based on a novel conspiracy claim, but the claims against Gus and Rooney have not changed in any meaningful way and all claims arise from the same set of facts as the 2006 Action.

[69] The law is clear that it is an abuse of process to relitigate a determination by a court in the hope of a different outcome. As the Court of Appeal has recently stated, “abuse of process applies where issues ‘could have been determined’ but were not….Moreover, it also applies to prevent re-litigation of previously decided facts”: The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354, 145 O.R. (3d) 759, at para. 67; see also Behn v. Moulton Contracting Ltd., 2013 SCC 26, [2013] 2 SCR 227, at para. 40.

[70] It makes no difference if the prior action is determined on consent rather than by a trial and finding on the merits: D’Addario v. EnGlobe Corp., 2012 ONSC 1918 at paras. 268-269; appeal dismissed, 2014 ONCA 376. A cause of action estoppel applies to prevent relitigation. As the Court of Appeal stated long ago in Ontario Sugar Co. (Re) (1911), 24 O.L.R. 332 (C.A.), leave to appeal denied (1911), 1911 CanLII 8 (SCC), 44 S.C.R. 659, citing an even older English case (Re South American and Mexican Co., ex p. Bank of England, [1885] 1 Ch. 37):

The basis of the estoppel is that, when parties have once litigated a matter, it is in the interest of the state that litigation should come to an end; and if they agree upon a result, or upon a verdict, or upon a judgment, or upon a verdict and judgment, as the case may be, an estoppel is raised as to all the matters in respect of which an estoppel would have been raised by judgment if the case had been fought out to the bitter end.

[71] As it is an abuse of process to attempt to relitigate not only claims that were brought but also those that could have been brought in prior proceedings, it is not enough for the plaintiffs to assert, as they do here, that they see matters in a “new light” or that the Tax Court decision, which was on a motion for an extension of time, provided them with “confirmation” of the fraudulent actions. Indeed, such language highlights that the plaintiffs are asserting the same issues in the Estate Action as were asserted, or could have been asserted, previously, including against additional parties such as Fogler Rubinoff LLP.

[72] Only under limited circumstances may a party be entitled to relitigate a matter. Examples of such discretionary circumstances were set out by the Supreme Court of Canada in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 52: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context.

[73] None of these circumstances apply to this case.

[74] There is no evidence that the 2006 Action and its resolution were tainted by fraud. Indeed, the plaintiffs do not allege any wrongdoing associated with the settlement but state that the only reason they settled with Gus was because they could not afford to continue to litigate against him and decided to prioritize the tax case. The parties, both well represented, reached a resolution after six years of litigation. Compromise was reached on both sides. Gus gave up his interests in Dupont and Holdings – a fact that the plaintiffs do not address or propose to reverse even as they seek to relitigate the issues and effectively undo the settlement.

[75] The plaintiffs’ assertion, however, is that “fraud unravels everything”, citing Denning J., as he then was, in Lazarus Estates Ltd. v. Beasley, [1956] 1 Q.B. 702 at p. 712:

No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of the Court, no order of a minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The Court is careful not to find fraud unless it is distinctly pleaded and proved; once it is proved it vitiates judgments, contracts, and all transactions whatsoever….

[76] But fraud cannot be in the air. There must be a causal connection between the fraud and the acts sought to be unraveled. Here, the plaintiffs have previously sued over what they now call fraudulent conduct and chose to settle and provide releases. But they have led no evidence that fraud occurred in litigating the 2006 Action or in reaching the settlements which might justify unraveling them. Nor is there any new evidence which impeaches the original result.

[77] The plaintiffs identify an invoice from Rubinovich Newton LLP that refers to Fogler Rubinoff LLP as Dupont’s lawyers. But there is no explanation how that invoice came to light, which would have been in Dupont’s possession – where Peter has worked his entire life, along with Olga and Tammy who did the bookkeeping – or why it was not available and known to the parties in the hard-fought litigation over so many years. One invoice, from 2001, from an accounting firm which refers to a law firm as the company’s lawyers, is too thin a reed on which to base a claim. It is also inconsistent with all the other contemporaneous evidence that Folger Rubinoff LLP was Gus’s lawyer and never acted for any of the plaintiffs, as well as the evidence on this motion from Peter who acknowledged that the plaintiffs had their own counsel.

[78] I conclude that the Estate Action, which raises the same issues addressed, compromised and resolved in the 2006 Action and the 2015 Dismissal Order, is res judicata and an abuse of process and should be dismissed against both Gus and Rooney on that basis.

[79] I also dismiss the Estate Action against Fogler Rubinoff LLP on this basis. Although not a party to the 2006 Action, an action against Fogler Rubinoff LLP for the same issues would be a misuse, and abuse, of the court’s process. As the Supreme Court stated in Toronto v. C..U.P.E, at para 37, quoting Goudge J.A. dissenting in Canam Enterprises Inc. v. Coles (2000), 2000 CanLII 8514 (ON CA), 51 O.R. (3d) 481 (C.A.), at paras. 55-56:

The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel. See House of Spring Gardens Ltd. v. Waite, [1990] 3 W.L.R. 347 at p. 358, [1990] 2 All E.R. 990 (C.A.).

One circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attempt to relitigate a claim which the court has already determined. [Emphasis added by the SCC.]

[80] One cannot get around the rule against relitigating issues simply by adding new defendants. The rule would be meaningless if this were the case. Further, it would be unfair to Fogler Rubinoff LLP to be subjected to this attempt at relitigation.

The Releases

[81] Another reason why the Estate Action must be dismissed against the moving parties is that the 2012 and 2015 Releases (the “Releases”) constitute a clear and complete bar.

[82] Both Releases are broad and were intended to cover all claims regarding matters that were or could have been pleaded in the 2006 Action. The Releases include unknown or unanticipated losses that might be discovered in the future. For example, the 2012 Release of Gus expressly releases him from “unknown claims arising in the future with respect to all matters raised or which could have been raised in the [2006 Action].” The 2015 Release in favour of Rooney addresses “not only all known injuries, losses and damages, but also injuries, losses and damages not now known or anticipated but which may later develop or be discovered, including all the effects and consequences thereof.”

[83] In Biancaniello v. DMCT LLP, 2017 ONCA 386, 138 O.R. (3d) 210, the Court of Appeal concluded that a release for future and unknown claims is enforceable to bar claims discovered after execution of the release, even when the release does not clearly say so.

[84] The plaintiffs have led no evidence, nor do they even allege, that the Releases were themselves the product of any fraudulent misrepresentation. There is no fraud that would “unravel” the Releases. This is not a case like York University v. Markicevic and Brown, 2016 ONSC 3718 at paras. 140-147, aff’d 2018 ONCA 893, where the Court set aside a settlement agreement found to have been procured through fraudulent misrepresentation on which the plaintiff detrimentally relied.

[85] I note that although Peter has asserted that he did not sign minutes of settlement providing full indemnity to Gus for the mortgage, this is contradicted in detail by Ross McDougall of Fogler Rubinoff LLP and in any event is only relevant to the issues in the arbitration application. This point was not pressed in argument. Peter does not deny the veracity of the settlement of the 2006 Action reflected in minutes he acknowledges signing, nor does he deny the 2012 Release.

[86] The plaintiffs’ explanation is that when they signed the 2012 Release they made a strategic decision to prioritize the tax appeal, likely due to the penalties and interest the Estate was facing from the reassessment. Furthermore, it is clear that the plaintiffs, like Gus, were well represented by counsel when they settled with Gus in 2012, and when they settled with Rooney in 2015.

[87] Although the Releases were directed to Gus and Rooney, the 2012 Release for Gus included Gus’s solicitors and agents among the Releasees. It was known at the time, and is even pleaded by the plaintiffs, that Fogler Rubinoff LLP represented Gus. Indeed, the firm acted for Gus in the 2006 Action. The 2012 Release therefore applies to Fogler Rubinoff LLP as Gus’s solicitors and as his agent.

[88] It should also be observed that the Releases contained “claims-over” provisions preventing the plaintiffs from bringing an action against someone who may claim contribution or indemnity from Gus or Rooney. To quote the 2015 Release in favour of Rooney (the 2012 Release is virtually identical):

…if the Releasors commence or continue such an action… and the Releasee is added to such proceeding in any manner whatsoever… the Releasors will immediately discontinue the proceedings and/or claims, and the Releasors will be jointly and severally liable to the Releasee for the legal costs incurred in any such proceeding, on a substantial indemnity cost basis.

[89] The Releases further provided that they “may be relied upon in any proceeding to dismiss the claim, action, complaint or proceeding on a summary basis.”

[90] As Rubinovich Newton LLP has crossclaimed against Gus, Rooney and Fogler Rubinoff LLP for contribution and indemnity, the Releases bar the claim on this basis as well.

The Trustee Act

[91] The Statement of Claim pleads that Anna died on October 5, 2004. Section 38(3) of the Trustee Act provides that any action brought by the administrator of an estate must be commenced within “two years from the death of the deceased.” Unlike situations where the limitation period runs from when the wrong is discovered, or from when the damage is sustained, the date of death marks the running of time for commencement of an action by an estate. As Abella J.A., as she then was, observed in Waschkowski v. Hopkinson Estate (2000), 2000 CanLII 5646 (ON CA), 47 O.R. (3d) 370 (Ont. C.A.) at para. 9, s. 38(3) of the Trustee Act represents a compromise between the “draconian” common law rule that an action in tort could not be brought on behalf of someone who died by “making access to a remedy available for a limited time without creating indefinite fiscal vulnerability for an estate”.

[92] Although fraudulent concealment can toll the limitation period prescribed by s. 38(3) of the Trustee Act, the Estate has not pleaded or led any evidence that would support a finding of fraudulent concealment. See, e.g., Zeppa v. Woodbridge Heating & Air-Conditioning Ltd., 2019 ONCA 47, 144 O.R. (3d) 385, at paras. 61-64 (“Zeppa”).

[93] As Fogler Rubinoff LLP and Gus have raised this issue as a matter for summary judgment, I conclude that there is no genuine issue requiring a trial as the Estate, which must be taken to have put its best foot forward on this issue, has not led any evidence that would extend the limitation period beyond October 5, 2006, some twelve and half years before the Estate Action was commenced.

[94] In Rooney’s case, having regard to the pleading alone, which states when Anna died, it is plain and obvious that the claim by the Estate is statute-barred and should be dismissed pursuant to Rule 21 as being an abuse of process. Indeed, although not argued, given the passage of time, the Estate may well lack the legal capacity to sue as required by Rule 21.01(3)(b).

Limitations Act, 2002

[95] The Limitations Act, 2002 has a broader impact, barring the actions of all the plaintiffs.

[96] Section 4 of the Limitations Act, 2002 states that, “[u]nless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.”

[97] Section 5(1) of the Limitations Act, 2002 addresses when a claim is “discovered.” It states:

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).

[98] A limitation period begins running when “the material facts on which [the cause of action] is based have been discovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence”: Central Trust Co. v. Rafuse, 1986 CanLII 29 (SCC), [1986] 2 S.C.R. 147, at p. 224, quoted with approval in Pioneer Corp. v. Godfrey, 2019 SCC 42, 437 D.L.R. (4th) 383, at para. 31. See also Lawless v. Anderson, 2011 ONCA 102, at paras. 22-23 (“Lawless”).

[99] It is well-established that full possession of all facts necessary to prove a claim is not required, as that may confuse what is necessary to prove a claim with what is necessary to bring a claim. As Perell J. stated in Tender Choice Foods Inc. v. Versacold Logistics Canada Inc., 2013 ONSC 80, aff’d 2013 ONCA 474, at para. 59, “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.” Rather, as Brown J.A. stated in Zeppa, at para. 42, “the question to be posed in determining whether a person has discovered a claim is whether the prospective plaintiff knows enough facts on which to base a legal allegation against the defendant.”

[100] In this case, it is clear that the plaintiffs had knowledge of facts which caused them to sue Gus and Rooney in 2006. At that time, they were also aware of the role of Fogler Rubinoff LLP as counsel for Gus, and of Rubinovich Newton LLP as the accountants for the companies at least to 2003. The Statement of Claim confirms this, asserting that “it took approximately 14 years” for the Estate “to unravel the misconduct of the defendants.” This is consistent with the conclusion that the plaintiffs discovered their claims long ago. The only change is that the plaintiffs assert that they have more evidence now.

[101] Furthermore, although the Statement of Claim pleads that the alleged newly discovered wrongful conduct which occurred between 2001 and 2004 remained “unknown to Anna and the other shareholders and the representatives of the Estate until 2016,” the action was not commenced until 2019, more than two years later. On its face, therefore, the action is out of time, and it is plain and obvious that the action is barred by the Limitations Act, 2002, and should be dismissed under Rule 21: Amrane v. York University, 2016 ONSC 7847; Beardsley v. Ontario (2001), 2001 CanLII 8621 (ON CA), 57 O.R. (3d) 1 (Ont. C.A.), at para. 21.

[102] The evidence of the plaintiffs on this motion confirms this conclusion and raises no genuine issues requiring a trial. Simply asserting, for example, that at some point prior to the October 2018 hearing in the Tax Court the plaintiffs “came across” one invoice from a third party that described Fogler Rubinoff LLP as the companies’ lawyers, but does not say precisely when that happened or why it was not relied on previously, does not raise a genuine issue requiring a trial, especially in the context of all the other evidence before me.

[103] The fact that, following the 2018 Tax Court decision, the plaintiffs now see things in a “new light” as the decision provided “confirmation” of the fraudulent actions they claim, does not rebut the effect of ss. 4 and 5 of the Limitations Act, 2002, let alone raise a genuine issue for trial. All the plaintiffs are saying now, and very vaguely, is that they now feel they have a better case to prove what they have believed for many years, and which they have sued over in a previous action.

[104] Limitations laws are intended to prevent new and seemingly endless litigation over matters that happened long ago. They prevent claimants from sitting on their rights or litigating in stages: see, e.g., Johar v. College of Veterinarians of British Columbia, 2020 BCSC 1085, at paras. 153-169; Lawless, at para. 36; Beniuk v. Leamington (Municipality), 2020 ONCA 238, 150 O.R. (3d) 129, at para. 75; Sosnowski v. MacEwen Petroleum, 2019 ONCA 1005, 441 D.L.R. (4th) 393, at paras. 27-29.

[105] The presence of these concerns is obvious in this case. The plaintiffs clearly discovered their claims at least as long ago as 2006, when they started the 2006 Action and had begun the tax appeal. They settled the 2006 Action in 2012 and 2015 and decided to put their resources into the tax case. Although the plaintiffs succeeded in the Tax Court in 2012, they did not seek to undo their settlement with Gus at the time, or sue Fogler Rubinoff LLP or Rubinovich Newton LLP. In 2015 they settled with Rooney and the 2006 Action was dismissed. Yet the plaintiffs now say, in effect, that because of a decision in different matter which causes them to see things in a “new light” they should be entitled to sue all over again for the same wrongdoing. This is precisely what limitations laws are intended to prevent.

No cause of action against Fogler Rubinoff

[106] Fogler Rubinoff LLP also seeks summary judgment on the grounds that the plaintiffs have no cause of action against it as the firm neither owed or breached any duties to them, as it represented Gus. Claims for negligence, conspiracy and economic tort claims cannot be brought against solicitors representing other parties: Geo. Cluthe Manufacturing Co. v. ZTW Properties Inc. (1995), 1995 CanLII 10684 (ON SC), 23 O.R. (3d) 370 (Div. Ct.), at 380; Edgeworth v. Shapira et al., 2019 ONSC 5792. Furthermore, while Peter’s affidavits assert wrongdoing, they provide no details or supporting evidence. What I must assume to be the plaintiffs’ best foot forward is nothing more than self-serving allegations and does not create a genuine issue for trial: Guarantee Co. of North America v. Gordon Capital Corp., 1999 CanLII 664 (SCC), [1999] 3 S.C.R. 423, at para. 31.

[107] Accordingly, this is yet another basis on which to grant summary judgment.

Ted’s Action

The 2005 Release

[108] Ted’s Action makes essentially the same claims as the Estate Action, alleging that Gus orchestrated a fraud to manipulate shareholder loan accounts to his benefit and thereby misappropriated funds.

[109] In my view, Ted’s Action against Gus and Rooney is barred by the 2005 Release.

[110] The 2005 Release is broadly worded. Ted agreed to release and discharge the “released persons” (which included Holdings, Dupont, Gus, Peter, Olga and Tammy) from “any and all Claims… which the Releasor has now, or may have in the future… relating to or arising out of any cause, matter or thing whatsoever existing up to and including the date hereof”. There were no carve-outs for fraud or discoverability, and it included all causes of action up to the date of the release, July 19, 2005.

[111] Furthermore, the “released persons” included “agents and representatives, current or former” of Holdings and Dupont. This would include Rooney as the companies’ solicitor.

[112] Although Ted now asserts that he was “forced to sign the buyout agreement along with the subject releases it accompanied,” he gives no support for this bald statement which is belied by the fact that he was at all times, including when he signed the SPA and, later, the 2005 Release, represented by counsel and had the benefit of the advice of his own accountant. He also does not address the fact that his settlement relieved him of a debt of approximately $900,000, and that he received a payment of $500,000.

[113] As Ted has not led any evidence that the 2005 Release was induced by fraud, or that there is any other basis to set it aside, I conclude that Ted’s Action, which deals with facts covered by the Release, is barred. There is no genuine issue requiring a trial.

The Limitations Act, 2002

[114] Ted’s action is also barred against Gus, Rooney and Fogler Rubinoff LLP by the Limitations Act, 2002.

[115] First, the action is barred by ss. 4 and 5 of the Limitations Act, 2002. Ted’s evidence reviews his involvement in the events of the late 1990s and early 2000s when he was dealing with the parties and had his own legal and accounting advice. But he does not explain why s. 5(1)(b) does not preclude his claims, which are all based on events that occurred in those years. A vague assertion that he had “no knowledge of the steps that Gus and others had taken” against him until the “surprising call” from Peter in 2019, and an ambiguous sentence that he did not know “about the full extension of the fraud perpetrated by Gus, Rooney, Foglers, and Rubinvich Newton LLP,” do not raise a genuine issue requiring a trial on the issue of discoverability.

[116] Second, Ted’s claims against Rooney are barred by the ultimate limitation period in s. 15 of the Limitations Act, 2002, which states:

15(1) Even if the limitation period established by any other section of this Act in respect of a claim has not expired, no proceeding shall be commenced in respect of the claim after the expiry of a limitation period established by this section. 2002, c.24, Sched. B, s.15 (1).

(2) 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. 2002, c. 24, Sched. B, s. 15 (2).

[117] As a result of transitional provisions in ss. 24(5) and (6) of the Limitations Act, 2002, the ultimate limitation period of 15 years began to run on January 1, 2004: York Condominium Corporation No. 382 v. Jay-M Holdings Limited, 2007 ONCA 49, 84 O.R. (3d) 414, at para. 2. Further, the uncontradicted evidence is that Rooney’s actions which are the subject to of the claim relate to his analysis of shareholder accounts which was completed by June 2004, about which Ted complained of and disputed in that year. As Ted’s Action was not commenced until December 2019, it is plain and obvious that the action is statute-barred on this basis against Rooney.

Ted’s Bankruptcy.

[118] Section 71 of the Bankruptcy and Insolvency Act, R.S.C. 1985, c B-3 (“BIA”), provides that all property belonging to a bankrupt vests in the trustee in bankruptcy at the time a bankruptcy order or assignment into bankruptcy is made:

On a bankruptcy order being made or an assignment being filed with an official receiver, a bankrupt ceases to have any capacity to dispose of or otherwise deal with their property, which shall, subject to this Act and to the rights of secured creditors, immediately pass to and vest in the trustee named in the bankruptcy order or assignment, and in any case of change of trustee the property shall pass from trustee to trustee without any assignment or transfer.

[119] A cause of action in tort or breach of contract, other than for injury to the person, is considered “property” within the meaning of s. 71 of the BIA.

[120] Ted pleads in his Statement of Claim that he declared bankruptcy in November 2007. At the hearing of his motion Mr. Robson provided the Court with a letter dated October 2, 2013, signed by a company representing itself to be the trustee for Ted’s Estate, stating that it was enclosing a document granting him a discharge from bankruptcy as of September 5, 2013. The enclosure has not been provided to the Court and the letter from the trustee is not attached to any affidavit. Further, according to a bankruptcy search conducted by Rooney, as of May 2020 Ted’s discharge status is “suspended.” Accordingly, the evidence supports the conclusion that Ted is currently an undischarged bankrupt.

[121] The causes of action in this case all relate to events that occurred in 2004 and therefore vested in the trustee in bankruptcy in 2007. Accordingly, Ted has no status to pursue the proceeding and Ted’s Action must be dismissed.

No cause of action against Rooney and Fogler Rubinoff LLP

[122] Finally, Rooney and Fogler Rubinoff LLP also seek summary judgment on the grounds that Ted has no cause of action against them as they neither owed nor breached any duties to Ted. This mirrors the argument made by Fogler Rubinoff LLP in the Estate Action. As in that case, while Ted’s affidavit asserts a fraud, it provides no details or supporting evidence, and summary judgment should be granted on this basis as well.

The Estate Application

[123] As I have concluded that the Estate Action should be dismissed, I also conclude that the Estate Application should be dismissed. Other than the issue of the validity of the arbitration agreement, the issues raised in the Estate Application are essentially the same as those I have dismissed in the Estate Action. The issue of the validity of the arbitration agreement can and should be addressed in Gus’s Application, which was issued before the Estate Application.

Conclusion

[124] At the end of the day, the actions commenced by plaintiffs simply cannot overcome the passage of time, previous litigation and broadly worded releases. The wrongs complained of, if they occurred, happened too long ago and too many other steps have been taken, including earlier settlements, which put an end to these disputes and prevents them from being relitigated. It is plain and obvious that the actions are an abuse of process and out of time, and the plaintiffs have failed to raise any genuine issues requiring a trial.

[125] The motions are granted. The Estate Action, the Estate Application and Ted’s Action are dismissed against Gus, Rooney and Fogler Rubinoff LLP.

[126] Should the parties be unable to agree on costs, the moving parties may each provide me with written submissions not exceeding 3 pages double-spaced, not including supporting materials, within 21 days of the release of these reasons, and the plaintiffs may respond in similarly limited submissions not exceeding 3 pages per submission, 14 days after the receipt of the defendants’ submissions.

Paul B. Schabas J.

Date: April 6, 2021