Court File and Parties

COURT FILE NO.: CV-19-614031 MOTION HEARD: 20210617 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Garfield Anthony Hibbert, Plaintiff AND: Deacon, Spears Barristers Fedson + Montizambert Solicitors, Bora Nam, Mark Willis-O’Conner and Michael John Campbell, Defendants

BEFORE: Master Jolley

COUNSEL: Jordan Cowman and Natasha Mazzitelli, Counsel for the Moving Party Defendants No one appearing for the Responding Party Plaintiff

HEARD: 17 June 2021

REASONS FOR DECISION

[1] The defendants bring this motion pursuant to Rule 20.01(3) for summary judgment dismissing all of the claims set out in the statement of claim. They argue that the claims advanced are either barred by a release signed by the plaintiff in 2017, barred by the Limitations Act, 2002, S.O. 2002, c.24 Sched B (the “Limitations Act”) or do not raise a genuine issue requiring a trial.

[2] For the reasons set out below, the motion is granted and the action dismissed.

Preliminary Issue

[3] The plaintiff did not attend on this motion, which was held virtually and did not file any responding materials.

[4] The motion hearing date was set pursuant to a series of telephone case conferences with me. On 14 January 2021 the plaintiff emailed the assistant trial coordinator to advise that he would not consent to any motion “because of the COVID-19 outbreak in the world at this time”. He advised that if he received any further emails from the court he would report it to the police. He refused to participate in any further conference calls, despite being given a range of suggested dates from which to choose.

[5] The plaintiff was advised early and repeatedly that the motion would take place through video conference. He did not reply to the timetable he was sent for the delivery of materials nor to the confirmation advising that the motion would proceed on June 17. He was sent the video conference coordinates and call in details for this motion and did not call in by phone or connect using the zoom coordinates. Given he had ample notice of the motion date and ample opportunity to participate, the motion proceeded in his absence.

[6] The defendants, even in the plaintiff’s absence, were still required to demonstrate that they met the test for summary judgment.

Background

[7] In April 2006 the plaintiff and his mother bought a condominium unit at 5758 Yonge Street, Toronto. Between then and 2015, when the unit was sold, the plaintiff had numerous disputes with the condominium corporation, Metro Toronto Condominium Corporation No. 796 (“MTCC 796”). He brought four separate actions against MTCC 796, one in each of 2009, 2010, 2011 and 2012.

[8] These defendants were counsel for MTCC 796 in those actions.

[9] In 2019, the plaintiff commenced this action. He alleges that he has suffered damages as a result of the defendants’ wrongful registration of liens against his unit and a result of their failure to provide him with certain information. He alleges that the defendants’ statement that the plaintiff owed MTCC 796 money was false and he claims additional damages for defamation, libel and slander.

Summary Judgment

[10] Rule 20.01(3) of the Rules provides that a “defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim.”

[11] The court shall grant summary judgment if it is satisfied that there is no genuine issue requiring a trial with respect to the claim (see Rule 20.04(2)(a)).

[12] The defendants tendered the affidavit of the defendant Michael Campbell (“Campbell”) sworn 14 December 2020 (the “Campbell Affidavit”) in support of this motion. Campbell is also a partner of the defendant firm Deacon, Spears, Fedson + Montizambert, Barristers and Solicitors (the “firm”).

Allegations Barred by the Release

[13] In 2009 the plaintiff sued MTCC 796 for damages alleged suffered as a result of mold in his unit. He pleaded that the mold was not remediated, that he suffered health problems as a result, that fan coil units in his unit were not working and that MTCC 796 improperly registered a number of liens against his unit for work done on the remediation and the repair of the fan coil units (the “2009 Action”)

[14] The plaintiff settled the 2009 Action in October 2007. As part of that settlement, the plaintiff signed a release, part of which stated.

“[The Plaintiff] ... hereby fully and irrevocably releases, acquits and forever discharges each of METROPOLITAN TORONTO CONDOMINIUM CORPORATION NO. 796 and CROSSBRIDGE CONDOMINIUM SERVICES LTD., formerly known as BROOKFIELD RESIDENTIAL SERVICES LTD., and all of their respective prior and present directors, officers, employees, servants, successors, heirs, executors, administrators, agents, assigns and insurers, as applicable (hereinafter, collectively referred to as the "Releasees"), of and from all claims, liabilities, actions, causes of action, demands, contracts, accounts, debts, dues, covenants, interests and claims for damages, compensation, restitution, indemnity, interest, costs or expenses, injury or equitable relief of any nature or kind, which the Releasor ever had, now has, or may hereafter have, whether express or implied, known or unknown, suspected or unsuspected, arising from or relating to the subject-matter of the action proceeding before the Ontario Superior Court of Justice under Toronto court file number CV-09384326, together with any and all matters pleaded or referred to in the same action (hereinafter, collectively referred to as the "Released Matters") ....”

[15] The plaintiff acknowledged that he had received:

“… the benefit of legal advice prior to executing this Full and Final Release, that the terms of this Full and Final Release are understood and that this Release is given voluntarily for the purpose of making a full and final compromise, adjustment and settlement of the released matters.”

[16] There is no question that the current defendants were agents of MTCC 796. Indeed, that is the reason the plaintiff has sued them in this action. He alleges that they registered the liens against his unit, which they admittedly did on behalf of their client, MTCC 796 and that they made representations about the amount of money the plaintiff owed their client, MTCC 796.

[17] Paragraphs 1-13, 15-17 and 20-22 of this statement of claim deal with the background of the disputes over the mold and remediation that gave rise to the liens, the registration of the liens and the damages the plaintiff allegedly suffered. It is clear that these allegations are “claims … which were known … arising from or relating to the subject-matter” of the 2009 Action. I find they are also covered by that provision of the release relating to “any and all matters pleaded” in the 2009 Action. In fact, some of these allegations are reproduced in this action almost verbatim from the 2009 Action. The crux of this action is the registration of the liens, which were an integral part of the 2009 Action, which the plaintiff released.

The plaintiff has released any claim he had with respect to paragraphs 1-13, 15-17 and 20-22 and they are hereby dismissed.

Allegations Barred by the Limitations Act

[18] The defendants allege that the allegations made in paragraphs 7, 8, 9, 11, 15 and 16 of this statement of claim are barred by the Limitations Act. I agree.

[19] The basic limitation period for an action is the second anniversary of the day on which the claim was discovered. The relevant provisions of the Limitations Act provide as follows:

Basic limitation period

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.

Discovery

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 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).

(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).

[20] The plaintiff has filed no materials. There is nothing before me to suggest that a reasonable person would have discovered these claims later than two years after they occurred. To the contrary, the evidence is that the plaintiff in fact knew of these claims as he sued MTCC 796 for these same acts and omissions in 2009.

Paragraphs 7, 8 and 9

[21] These paragraphs relate to the registration of the lien in relation to drywall repairs. The plaintiff received the Notice of Lien to Owner on 12 February 2010, which specifically noted the drywall repair work. By letter dated 25 February 2010, the plaintiff also received a copy of the notice that was sent to the mortgagee advising that a certificate of lien had been registered. As noted above, the plaintiff also specifically raised this allegation in the 2009 Action. The limitation period for this allegation, had it not already been covered by the Release, expired by 25 February 2012 and the claim is barred by virtue of the Limitations Act.

Paragraph 11

[22] The plaintiff alleges in this paragraph that the defendants registered a lien against his unit on 9 April 2010. That same paragraph goes on to note that, “after the last two liens, the Bank of Montreal decided not to renew the mortgage.” The implication is that there was a connection between that 9 April 2010 registration and the mortgagee’s decision not to renew the mortgage.

[23] I find that this claim with respect to the registration was reasonably discovered no later than April 2012, two years after the plaintiff received written notice that a certificate of lien had been registered for charges relating to fan coil and unit cleaning.

[24] Additionally, there is evidence in the record that the plaintiff knew of this claim by 5 March 2015. He deposed in an affidavit sworn that day that MTCC 796 claimed it had repaired the fan coil and cleaned his unit and that “MTCC 796’s lawyers then sent a letter dated April 9th 2010 to my mother [in whose name the unit was held] demanding the sum of $6,363.80 within ten days. Copy of the letter from MTCC #796’s lawyers is attached as exhibit “E”.

[25] The plaintiff knew or ought to have known of this claim no later than two years after 9 April 2010 and definitively knew of the claim by March 2015 when he referred in his affidavit to the events now claimed in paragraph 11 of this statement of claim. This claim is barred by virtue of the Limitations Act.

Paragraphs 15 and 16

[26] These paragraphs centre around the failure of the mortgagee to renew the plaintiff’s mortgage. The plaintiff would have known by 16 April 2012 that the mortgagee was not renewing his mortgage as, according to the parcel register, its mortgage was discharged on that date.

[27] The limitation period for bringing a claim based on these events expired no later than by 16 April 2014, two years after the discharge of the mortgage and these claims are now barred by virtue of the Limitations Act.

Claims that Raise No Genuine Issue Requiring a Trial

[28] After striking the above paragraphs, there remains to be addressed paragraph 14, the second sentence of paragraph 16 and paragraphs 18 and 19 of the claim.

[29] The plaintiff alleges in paragraph 14 that the defendants falsely alleged in August 2018 that he owed money when he did not. The defendants have filed an affidavit confirming that the plaintiff owed MTCC 796 $8,500 in costs from two separate orders. While it is true that $9,010.74 was garnished from the plaintiff, that amount had to be shared among his other judgment creditors. After MTCC 796 received its pro rata share of the amount garnished, the plaintiff still owed it $5,691.59.

[30] The defendants have appended as exhibits to the Campbell Affidavit the sheriff’s notice of distribution dated 30 September 2016 and a further notice dated 22 November 2016 confirming MTCC 796 received $3,069.15 toward its costs orders, which left a balance on which interest continued to accrue. The plaintiff has led no evidence to refute this position. I find that the claim advanced in paragraph 14 of the statement of claim concerning the defendants’ statement that the plaintiff still owed MTCC 796 money is not a genuine issue that requires a trial. Judgment is granted dismissing that claim pursuant to Rule 20.04(2)(a).

[31] The second sentence of paragraph 16 of the statement of claim states that: “In (2012) there was a flood in my unit caused by a backup in the pipes.” This allegation, assumed to be true, does not involve these defendants, does not raise a genuine issue requiring a trial and is, accordingly, dismissed pursuant to Rule 20.04(2)(a).

[32] The last grouping relates to the allegations made in paragraphs 18 and 19 of the claim in which the plaintiff alleges that the defendants promised to provide him with information and failed to do so. The evidence tendered through the Campbell affidavit demonstrates that this issue does not require a trial.

[33] Campbell deposes that, at a mediation held in December 2018 in relation to two of the plaintiff’s other actions against MTCC 796 and others, it became apparent that the plaintiff had not served a defendant he had named as “Bazzel An Security Company” or “Brazzel An Security Company”. Campbell, assuming such an entity existed, offered to provide the plaintiff with the contact information. Campbell conducted searches for both Bazzel and Brazzel and no businesses were disclosed.

[34] On 6 February 2019, Campbell emailed the plaintiff the searches and stated:

We searched the government's database for a business called "Bazzel" and could not find an active or inactive business that uses, or previously used, the name "Bazzel". It appears that "Bazzel Security" does not exist and has never existed.

We also searched the government's database for a business named "Brazzel" and could not find an active or inactive business that uses, or previously used, the name "Brazzel". It appears that "Brazzel Security” does not exist and has never existed.

Attached for your reference are copies of the searches.

[35] The plaintiff has filed no evidence to refute this information.

[36] These paragraphs do not raise a genuine issue requiring a trial and are hereby dismissed pursuant to Rule 20.04(2)(a).

Conclusion

[37] For the reasons set out above, the claim is dismissed.

[38] The defendants seek their costs of the motion and the action on a full indemnity basis, given the plaintiff’s aggressive initial responses to the motion scheduling followed by his complete lack of participation. The defendants seek full costs of $12,757.37 inclusive of HST (roughly $11,290 before HST) and disbursements of $1,496.34.

[39] The only steps taken in this action were the preparation of a statement of defence and this motion.

[40] I do not find full or substantial costs to be warranted in the circumstances. While the plaintiff was not responsive, that lack of response may well have allowed the defendants to keep their costs to a relatively reasonable level. The defendants agreed that a rate of 55% of full costs would be proper, should the court determine that partial indemnity was the appropriate scale.

[41] I award the defendants costs of the motion and the action on a partial indemnity basis in the amount of $8,500 comprised roughly of costs of $6,209.50 (55% of $11,290), HST on that amount of $807.23 and disbursements of $1,496.34. I have signed the judgment dismissing the action and awarding costs as set out herein.

Master Jolley

Date: 21 June 2021