COURT FILE NO.: CV-16-00555875-0000 DATE: 20220216 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

DR MIROSLAV RIHA, a.k.a. Mr. Miroslav Riha, VIKTOR RIHA, MARTHA CAPIRCHIO a.k.a. Marti Capirchio and 2329576 ONTARIO INC. Plaintiffs

• and -

A WILFORD PROFESSIONAL CORPORATION, ALLEN WILFORD and CATHERINE RACINE Defendants

Douglas J. Spiller agent for Miroslav Riha, Viktor Riha, Martha Capirchio, and 2329576 Ontario Inc. , self-represented Charles Sinclair for the Defendants

HEARD : January 28, 2022

PERELL, J.

REASONS FOR DECISION

A. Introduction

[1] Miroslav Riha, Viktor Riha, Martha Capirchio, and 2329576 Ontario Inc. sue Allen Wilford, A. Wilford Professional Corporation, and Catherine Racine (the “Wilford Defendants”) for $2.0 million for solicitor’s negligence, breach of contract, breach of fiduciary duty, breach of trust, misappropriation of trust funds, misrepresentation, and conversion.

[2] The defendants bring a summary judgment motion to have the action dismissed as statute-barred pursuant to the Limitations Act, 2002 or dismissed on its merits because of the absence of any expert testimony supporting the allegation that Mr. Wilford breached the standard of care expected of a litigation lawyer. Once the matter of the negligence claim is resolved, the defendants seek to have the law firm’s account assessed by an assessment officer.

[3] For the reasons that follow, I dismiss the Wilford Defendants’ motion with costs in the cause.

B. Jurisdiction to Grant Summary Judgment and the Evidentiary Background

[4] Rule 20.04(2)(a) of the Rules of Civil Procedure provides 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.” With amendments to Rule 20 introduced in 2010, the powers of the court to grant summary judgment have been enhanced. Rule 20.04 (2.1) states:

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.

[5] Hryniak v. Mauldin does not alter the principle that the court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial. The court is entitled to assume that the parties have advanced their best case and that the record contains all the evidence that the parties will present at trial. Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372 at para. 11; Dawson v. Rexcraft Storage & Warehouse Inc., 1998 ONCA 4831, [1998] O.J. No. 3240 (C.A.); Bluestone v. Enroute Restaurants Inc. (1994), 1994 ONCA 814, 18 O.R. (3d) 481 (C.A.). Thus, if the moving party meets the evidentiary burden of producing evidence on which the court could conclude that there is no genuine issue of material fact requiring a trial, the responding party must either refute or counter the moving party’s evidence or risk a summary judgment. Toronto-Dominion Bank v. 466888 Ontario Ltd., 2010 ONSC 3798.

[6] In Hryniak v. Mauldin, 2014 SCC 7 and Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, the Supreme Court of Canada held that on a motion for summary judgment under Rule 20, the court should first determine if there is a genuine issue requiring trial based only on the evidence in the motion record, without using the fact-finding powers introduced when Rule 20 was amended in 2010. The analysis of whether there is a genuine issue requiring a trial should be done by reviewing the factual record and granting a summary judgment if there is sufficient evidence to fairly and justly adjudicate the dispute and a summary judgment would be a timely, affordable, and proportionate procedure.

[7] If, however, there appears to be a genuine issue requiring a trial, then the court should determine if the need for a trial can be avoided by using the powers under rules 20.04 (2.1) and (2.2). As a matter of discretion, the motion judge may use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if their use will lead to a fair and just result and will serve the goals of timeliness, affordability, and proportionality in light of the litigation as a whole.

[8] If a judge is going to decide a matter summarily, then he or she must have confidence that he or she can reach a fair and just determination without a trial; this will be the case when the summary judgment 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. Hryniak v. Mauldin, 2014 SCC 7 at paras. 49 and 50. The motion judge is required to assess whether the attributes of the trial process are necessary to enable him or her to make a fair and just determination. Hryniak v. Mauldin, 2014 SCC 7 at paras. 51-55; Wise v. Abbott Laboratories, Ltd., 2016 ONSC 7275 at paras. 320-336; Drywall Acoustic Lathing and Insulation Local 675 Pension Fund (Trustees of) v. SNC-Lavalin Group Inc., 2016 ONSC 5784 at paras. 122-131. To grant summary judgment, on a review of the record, the motion judge must be of the view that sufficient evidence has been presented on all relevant points to allow him or her to draw the inferences necessary to make dispositive findings and to fairly and justly adjudicate the issues in the case. Campana v. The City of Mississauga, 2016 ONSC 3421; Ghaeinizadeh (Litigation guardian of) v. Garfinkle Biderman LLP, 2014 ONSC 4994, leave to appeal to Div. Ct. refused, 2015 ONSC 1953 (Div. Ct.); Lavergne v. Dominion Citrus Ltd., 2014 ONSC 1836 at para. 38; George Weston Ltd. v. Domtar Inc., 2012 ONSC 5001. As I shall elucidate below, in my opinion, in the immediate case, there is a plethora of genuine issues that do require a trial and the case at bar is not an appropriate case for a summary judgment. There is insufficient evidence to allow me to draw the inferences necessary to make dispositive findings and to fairly and justly adjudicate the claim.

[9] In the immediate case, as the following description of the evidentiary, procedural, and factual background will reveal, as a matter of both commission and omission, the evidentiary record is not adequate to decide the genuine issues and it would not be in the interests of justice to decide the plethora of genuine issues. There are significant issues of credibility and reliability that ought to be tried, including the issue of the discoverability of the claims against the defendants.

C. Dramatis Personae and Evidentiary Background

[10] Allen Wilford, A. Wilford Professional Corporation, and Catherine Racine support their motion for a summary judgment with the following evidence:

a. the affidavits of Allen Wilford dated April 18, 2019 and May 12, 2020. He is a lawyer in Owen Sound. He was called to the bar in 1991. He practises as a sole practitioner through the defendant A. Wilford Professional Corporation . Mr. Wilford was cross-examined. b. the affidavit of Catherine Racine dated May 13, 2020. She was employed by Mr. Wilford as a law clerk from September 2009 to January 2017. She was cross-examined.

[11] Miroslav Riha, Viktor Riha, Martha Capirchio, and 2329576 Ontario Inc. support their resistance to summary judgment with the following evidence:

a. the affidavits of Miroslav Riha dated July 30, 2019 and November 2, 2020. He is a retired dentist. He resides at 929 Nantyr Dr. He was cross-examined. b. the affidavits of Viktor Riha dated July 30, 2019 and November 2, 2020. Viktor is Miroslav’s son. Viktor is a construction worker. Viktor also resides at 929 Nantyr Dr. He was cross-examined. c. the affidavits of Martha (“Marti”) Capirchio dated July 31, 2019 and November 2, 2020. She is a friend of Miroslav Riha and is Viktor Riha’s domestic partner. She resides with them at 929 Nantyr Dr. in Innisfil, Ontario. She was cross-examined.

[12] Esra Samli was cross-examined for the purposes of the summary judgment motion. Ms. Samli is the former daughter-in-law of Miroslav Riha and the former sister-in-law of Viktor Riha. She is a licensed Ontario lawyer. She articled for Mr. Wilford in 2011 and worked at the law firm until 2014.

[13] 2329576 Ontario Inc . is an Ontario corporation that holds title to 929 Nantyr Dr. as a bare trustee for Miroslav Riha. Ms. Capirchio is the sole director and officer of 2329576 Ontario Inc . which also came to own a property located at 1015 Quarry Drive in Innisfil, Ontario.

[14] Lalanya Riha is the ex-spouse of Viktor Riha. During their marriage, she too resided at 929 Nantyr Dr., which was her matrimonial home with Viktor Riha.

[15] For much of the lawyer and client dispute that is at the centre of this action, Allen Wilford, A. Wilford Professional Corporation, and Catherine Racine were self-represented. This changed in 2018, when Charles Sinclair of Goldblatt Partners LLP got on the record.

[16] Intermittently Douglas J. Spiller of Slater & Spiller LLP has acted as agent for Miroslav Riha, Viktor Riha, Martha Capirchio, and 2329576 Ontario Inc. , who throughout the events have otherwise been self-represented.

[17] Note. The evidence about 929 Nantyr Dr. is, so to speak, all over the map. It seems that the property was the residence of Miroslav, Viktor, Lalanya, four children, and Ms. Capirchio. It seems that it was the matrimonial home of Viktor and Lalanya but originally registered in Miroslav’s and Lalanya’s names and then transferred to Lalanya. It may be that Miroslav Riha funded the purchase of the property with his alleged loans of $540,000. It appears that Miroslav let the mortgage on the property go into default and then took an assignment of the mortgage to pursue power of sale proceedings. It seems that the property came to be owned by Ms. Capirchio’s corporation and now the corporation owns the property as bare trustee of Miroslav Riha. A. Wilford Professional Corporation obtained an injunction restraining the sale of the property.

D. Factual and Procedural Background

[18] Because this case is not only inappropriate for a summary judgment but cries out for a trial of the damning allegations and counter-allegations, I shall describe the factual background only to the extent necessary to reveal why a summary judgment is inappropriate.

[19] I shall purposely say very little about the claims by Martha Capirchio and 2329576 Ontario Inc. and the claim against Catherine Racine. The material issues associated with these claims cannot be extracted from the numerous genuine issues requiring a trial as between the Rihas and Mr. Wilford and A. Wilford Professional Corporation.

[20] In the description below, I shall point out a few examples, from many possible examples, where the reliability and credibility of the witness is suspect. These credibility contests cannot be resolved summarily.

[21] The following factual summary may be of some assistance to the trial judge who will have to deal with this very nasty lawyer and client dispute, but I make no binding findings of fact.

[22] In June 2010 , Viktor Riha and Lalanya Riha separate.

[23] In October 2011 , Miroslav Riha retains lawyer Jack R. Armstrong, to sue his son Viktor and his daughter-in-law Lalanya. In what is a debt collection action, Miroslav Riha alleges that his son and his daughter-in-law are indebted to him for $540,000. He also alleges that Lalanya is indebted to him because he is the guarantor of a $150,000 line of credit in Lalanya’s name.

[24] Mr. Wilford deposed that he was not consulted about Miroslav’s collection action and that Miroslav commenced the collection action against both Viktor and Lalanya to attempt to protect his interest in the couple’s matrimonial home as well as in loans he made to the couple during the course of their marriage. (There is a genuine issue for trial about what Mr. Wilford knew about the debt collection action before he came to assume carriage of it for Miroslav Riha.)

[25] On November 28, 2011, Lalanya Riha commences matrimonial proceedings against Viktor Riha in the Superior Court of Justice in Barrie, Ontario (Court File No. FC11-1611-00). In her application, Lalanya Riha seeks a divorce, spousal support, child support in respect of the couple’s three children, custody of the children, exclusive possession of the matrimonial home, and the unequal equalization of the couple’s net family property.

[26] The Riha matrimonial litigation is to become intensely acrimonious high-conflict litigation.

[27] Also on November 28, 2011 , Lalanya Riha delivers a Statement of Defence in Miroslav Riha’s loan collection action. She denies any indebtedness. She pleads that Miroslav Riha gifted the money to his son’s family.

[28] Viktor seeks out a lawyer to act for him in the matrimonial litigation. His sister-in-law, Ms. Samli refers Viktor to Mr. Wilford. There are numerous genuine material issues requiring a trial about the retainer between the law firm and Viktor Riha, Miroslav Riha, Martha Capirchio, and 2329576 Ontario Inc.

[29] It was the Rihas’ and Ms. Capirchio’s evidence that they all attended the initial intake meeting with Mr. Wilford. It is at this meeting that Viktor signed a retainer agreement, which neither party can produce. Viktor Riha, Miroslav Riha, and Ms. Capirchio depose that at the initial retainer meeting Mr. Wilford demanded and Miroslav agreed to pay Viktor’s retainer payment of $70,000 – in cash. The Rihas depose that Mr. Wilford agreed that this retainer plus $5,000 for disbursements would be the fixed cost for his services in the matrimonial proceedings. Mr. Wilford denies that he agreed to a fixed-fee retainer and he deposes that he would never agree to such a retainer.

[30] There are numerous genuine issues for trial about the initial joint retainer meeting. It is, in my opinion, odd that at a time when Miroslav with the aid of Mr. Armstrong was already suing Viktor, Miroslav attended the meeting with Viktor’s new lawyer, Mr. Wilford. And, of course, there is the major genuine issue about the alleged cash for legal services arrangement that is alleged to have occurred over the next several years.

[31] The Rihas say that between April 2012 and February 2014, they paid over $70,000 in cash to Mr. Wilford and his law firm. There is a plethora of genuine issues for trial about the monies paid by the Rihas. Mr. Wilford’s position is that he was paid $20,000, which he credited to the retainer. The Rihas say that in breach of the Law Society of Ontario’s regulations about trust funds, Mr. Wilford, failed to maintain and manage his trust fund and, in effect, just pocketed the money. All of this is challenged and denied by Mr. Wilford. There are serious credibility issues here. These issues require a trial.

[32] After the initial retainer agreement, the matrimonial action and the debt collection action proceed as separate actions. Until, in September 2012 , Lalanya Riha serves a motion to consolidate the matrimonial proceedings and the debt collection action. The motion is returnable January 8, 2013.

[33] The facts about Lalanya’s motion to consolidate is the motherlode of genuine issues requiring a trial.

[34] Mr. Wilford’s version of the events associated with the motion to consolidate is that it was his professional opinion that resistance to this motion was futile. He says that he received instructions from Viktor to consent to the motion and that arrangements were made so that he would also act for both Miroslav and Viktor in the consolidated action. Mr. Wilford says that the Rihas were fully apprised of the circumstances of joint retainers and there was no genuine conflict because the interests of father and son were joined in adversity to Lalanya but not each other. It was Mr. Wilford’s view that consolidation was inevitable. It was his opinion that Miroslav Riha’s substantive and procedural legal position and his obligations to make disclosure would be same even if the actions were separated, but with a consolidated action and a joint retainer there was the advantage of minimizing the legal expense for the Rihas.

[35] The Rihas’ opposing version of the facts about the motion to consolidate is that they did not consent and that they were never advised about the matter of joint retainers or about the significance of consolidation. They say that they never instructed or would have consented to consolidation and that Viktor’s instructions were to keep the actions separate. The Rihas say that Mr. Wilford lied to them. During the argument of the summary judgment motion, they suggested that Mr. Wilford lied to secure additional legal fees. They say that they were misled about how the consolidation came about and that they did not understand what happened until years later when they reviewed the court file in the matrimonial litigation.

[36] In response to the Rihas’ allegation that he did not obtain instructions for the consolidation of the actions, Mr. Wilford deposed as follows:

12. I deny this allegation. Under no circumstances would I ever agree to such a step in litigation, particularly such a significant one, without seeking my client’s instructions. I spoke to Viktor and Miroslav at the time that Lalanya brought her consolidation motion; it was my advice at the time that Lalanya’s motion was likely to succeed and that it made sense to consent to the motion in order to avoid a cost order. Moreover, my view was that Viktor and Miroslav’s interests were aligned and that there was no conflict in my representing both of them going forward. What is more, it would save them legal fees by having one lawyer acting for them rather than two. Viktor and Miroslav agreed with my advice and so instructed me.

[37] There are numerous genuine issues for trial about whether, how, why, and when instructions were given to Mr. Wilford about the consolidation of the actions. What is apparent from the court record is that while the motion to consolidate is pending on November 21, 2012 , Miroslav Riha serves a Notice of Change of Lawyer from Mr. Armstrong to A. Wilford Professional Corporation, and on January 8, 2013 , by consent Order, Justice DiTomaso consolidates the matrimonial proceedings with the debt collection action.

[38] I add parenthetically, it would have been helpful to have evidence from Mr. Armstrong about the conversations, if any, he had with Mr. Riha and Mr. Wilford about the notice of change of lawyer.

[39] In any event, there is good reason to doubt the reliability and the credibility of all concerned about the consolidation motion. To this day, the parties seem oblivious to at least the technical reality that while consolidation of Miroslav Riha’s collection action and Lalanya Riha’s matrimonial action may have been inevitable, it technically should not have happened with Mr. Wilford acting for both Miroslav and Viktor in the consolidated action. While there can be joint retainers, it is taboo for a lawyer to act for both the plaintiff and the defendant in one action.

[40] Rules 3.4-1, 3.4-2, and 3.4-3 of the Law Society of Ontario’s Rules of Professional Conduct, state with my emphasis added:

Duty to Avoid Conflicts of Interest

3.4-1 A lawyer shall not act or continue to act for a client where there is a conflict of interest, except as permitted under the rules in this Section.

Consent

3.4-2 A lawyer shall not represent a client in a matter when there is a conflict of interest unless there is consent, which must be fully informed and voluntary after disclosure, from all affected clients and the lawyer reasonably believes that he or she is able to represent each client without having a material adverse effect upon the representation of or loyalty to the other client.

Dispute

Despite rule 3.4-2, a lawyer shall not represent opposing parties in a dispute .

Commentary

[1] A lawyer representing a client who is a party in a dispute with another party or parties must competently and diligently develop and argue the position of the client. In a dispute, the parties' immediate legal interests are clearly adverse. If the lawyer were permitted to act for opposing parties in such circumstances even with consent, the lawyer's advice, judgment and loyalty to one client would be materially and adversely affected by the same duties to the other client or clients. In short, the lawyer would find it impossible to act without offending the rules in Section 3.4.

[41] Justice DiTomaso’s consolidation Order is just a one paragraph order that consolidates the actions with no directions whatsoever. I am certain that while Justice DiTomaso should and did consolidate the actions, he would not have permitted the unavoidable technical conflict of a litigation lawyer acting on both sides of a dispute if the conflict had been brought to his attention.

[42] I wish to be clear that on this summary judgment motion, I am not making any finding about professional misconduct or about negligence or about whether any damages were consequent on the consolidation order. I am not making any finding as to whether there is an answer to the apparent breach of the rule that a lawyer shall not represent opposing parties in a dispute. There may be an explanation that I am not aware of based on the evidence presented for this summary judgment motion.

[43] What I am deciding is that there are a host of genuine issues for trial about the consolidation of the collection action with the matrimonial action, including the matter of the discoverability of any claim arising from the consolidation of the actions. It may be that the Rihas’ claims are statute-barred, but I am not in a position to say. I am just deciding that: (a) the current record and argument on this motion are inadequate to decide these issues; and (b) it is not in the interests of justice to decide these matters summarily.

[44] Returning to the narrative, it is Mr. Wilford’s evidence that around the time of the consolidation of the actions, Miroslav Riha purchased a property located at 1015 Quarry Drive in Innisfil for $529,000 for Viktor Riha and Martha Capirchio to reside in. However, because Miroslav had outstanding matrimonial difficulties of his own, Mr. Wilford was instructed to incorporate 2329576 Ontario Inc. and to have the property registered in its name. Ms. Capirchio was named as the sole officer and director of the corporation.

[45] In November 2013 , Lalanya Riha made a settlement offer in the matrimonial proceedings to settle the financial side of the litigation. (Other contested issues remained to be settled). The Rihas accepted the offer. They submit that they were coerced to agree to a grossly improvident settlement in which Miroslav Riha took a severe financial beating by, among other things, Mr. Wilford’s threats to withdraw from acting for them. Once again there is a plethora of genuine issues and a plethora of genuine credibility and reliability issues that require a trial and that cannot be resolved summarily.

[46] What is clear is that there was a settlement of the financial aspects of the material dispute and that Miroslav Riha made substantial concessions more or less abandoning his collection action. However, before entering into the November 2013 financial settlement agreement, Miroslav Riha and Viktor Riha consulted Harold Niman, a matrimonial law specialist. Mr. Niman communicated with Lalanya’s counsel and provided advice with respect to the proposed agreement to Mr. Wilford. I cannot summarily decide whether the financial settlement was ill-advised or improvident or well-advised and provident.

[47] There are a host of genuine issues for trial about the providence of the financial settlement assuming that the defendants’ technical limitation period defence fails about which there is also a host of genuine issues requiring a trial.

[48] In any event, a property and financial settlement is reached and under the settlement, Viktor Riha and Miroslav Riha pay Lalanya $130,000 by means of $40,000 and the transfer of a vacant property registered in Viktor’s name. On November 27, 2013, Justice Olah issues an Order setting out the terms of the settlement. In the months that follow, a variety of matters require Mr. Wilford’s attention as there were problems in implementing the settlement and in resolving the remaining matrimonial litigation issues between Viktor Riha and Lalanya Riha.

[49] On the eve of the May 2014 trial sittings, the parties entered into minutes of settlement which were then taken out in the form of a number of court orders.

[50] Five months later, on October 27, 2014 , Mr. Wilford and his law firm issue an invoice for legal services. Mr. Wilford deposed as follows:

[…] At the outset of my retainer by Viktor, I was paid $20,000 in cash by him which was divided into various retainer amounts. I was not paid any sums thereafter. The plaintiffs allege that I was paid a total of $70,000 in cash by them for my services but this is not correct. In any event, by the time that my work for the plaintiffs was at or near its conclusion in 2014, I was owed approximately $128,000 by the parties for my work on their behalf.

[51] Within a month, on November 27, 2014 , Miroslav Riha, Viktor Riha, and 2329576 Ontario Inc. obtain a Registrar’s Order for an assessment of Wilford’s account in Toronto pursuant to the Solicitors Act.

[52] On February 27, 2015 , in anticipation of the Solicitors Act assessment, the Rihas requisition from the Barrie courthouse the court file for the matrimonial litigation. Apparently, it takes some time to obtain the file and it is only after they review its contents that the Rihas say they learn that the consolidation was not the result of a contested motion but rather was a consent motion.

[53] On September 2, 2015 a Notice of Appointment for Assessment is issued and the assessment is scheduled for July 24 to 28, 2017.

[54] It seems that Mr. Wilford did not take kindly to the notice of assessment. On January 29, 2016 , A. Wilford Professional Corporation commences an action in the Superior Court in Barrie against Miroslav Riha, Viktor Riha, Martha Capirchio, and 2329576 Ontario Inc. (Action No. 16-0136). A. Wilford Professional Corporation alleges that a property owned by the Rihas had been wrongfully sold in breach of a promise to pay his account from the sale of the property. The law firm seeks an assessment of the law firm’s account and registration of a certificate of pending litigation against title to the property. The law firm seeks $50,000 in damages for each of deceit, and fraudulent misrepresentation.

[55] In their factum, the Rihas submit that the 2016 Barrie action No. 16-0136 was brought in contravention of s. 6 (4) of the Solicitors Act, which provides that when a client obtains an order for the assessment of a solicitor’s bill of fees, the solicitor shall not commence or prosecute any action in respect of the matters referred pending the reference without leave of the court or a judge.

[56] The Barrie action is not before me, and I make no finding with respect to it. For present purposes, the Barrie action is part of the narrative that may have led the Rihas to respond with the negligence action now before the court.

[57] For present purposes, I do know that there are genuine issues requiring a trial about the significance, if any, of the Barrie action to the Rihas’ argument that their action is not statute-barred, a topic to which I will return in the analysis portion of these Reasons for Decision.

[58] Thus, on June 9, 2016, in the Barrie action, Miroslav Riha, Viktor Riha, Martha Capirchio and 2329576 Ontario Inc. defend and bring a counterclaim against A. Wilford Professional Corporation, Allen Wilford, and Catherine Racine. No allegations of negligence are advanced against Mr. Wilford in the defence and counterclaim. However, three weeks later, on June 30, 2016 , Miroslav Riha, Viktor Riha, Martha Capirchio, and 2329576 Ontario Inc commence a solicitor’s negligence action against Allen Wilford, A. Wilford Professional Corporation, and Catherine Racine in the Superior Court in Toronto.

[59] On September 14, 2016 , Mr. Wilford’s action in Barrie for payment of the account is stayed by Order of Justice DiTomaso pending the Riha Plaintiffs’ assessment proceeding in Toronto. Any sale of 929 Nantyr Dr. is enjoined by Order of Justice DiTomaso, which is registered against the title of the property. In effect a certificate of pending litigation is registered.

[60] On January 10, 2017, Mr. Wilford and A. Wilford Professional Corporation deliver a Statement of Defence to the solicitor’s negligence action in Toronto and Ms. Racine delivers a separate Statement of Defence. Mr. Wilford acts both in a professional capacity and as a self-represented litigant. Ms. Racine is self-represented. There is a dispute about whether Mr. Wilford has and should notify his professional liability insurer.

[61] On April 10, 2017 , by two orders, Justice Archibald orders that the September 14, 2016 Order of Justice DiTomaso be lifted for refinancing the mortgage on 929 Nantyr Dr. and that the Order enjoining any sale be re-registered.

[62] In July 2017 , Allen Wilford, A. Wilford Professional Corporation, and Catherine Racine bring a Rule 21 motion to have the Plaintiffs’ solicitor’s negligence action dismissed as an abuse of process. At the same time, the Rihas bring a motion to have the assessment proceeding consolidated with their negligence action because an assessment officer does not have jurisdiction where there is a dispute about the existence of a retainer and to award compensation for solicitor’s negligence and breach of fiduciary duty.

[63] On July 13, 2017 , Allen Wilford, A. Wilford Professional Corporation, and Catherine Racine withdraw their Rule 21 motion and on consent, Justice Lederer converts the Solicitors Act assessment into a trial insofar as it deals with negligence and malfeasance and consolidated it with the Plaintiffs’ solicitor’s negligence action with any residual issues to be returned to the Assessment Officer. The operative part of Justice Lederer’s Order states:

1. THIS COURT ORDERS that on consent the motion to set aside the statement of claim as an abuse of process will be withdrawn.
2. THIS COURT ORDERS that on consent the assessment, insofar as it deals with negligence and misfeasance will be converted to a trial and consolidated with this action.
3. THIS COURT ORDERS that on consent insofar as there is any need for an assessment after the judgment is forthcoming it will be held down until then and continued thereafter.
4. THIS COURT ORDERS that to be clear the goal is to separate the aspects of the assessment which are outside the jurisdiction of the assessment office from those that are not (hours and fees). The former will be dealt with in the trial and the latter at an assessment after the trial if an assessment is still necessary.
5. THIS COURT ORDERS that these procedural issues arise from actions attributable to both parties. No costs.
6. THIS COURT ORDERS THAT IT IS acknowledged that counsel for the Plaintiffs objects to Mr. Wilford acting and wishes to be clear that this order is without prejudice to his bring a motion in that regard.

[64] In March 2018 , Goldblatt Partners LLP (Charles Sinclair) gets on the record for Allen Wilford, A. Wilford Professional Corporation, and Catherine Racine in the negligence action.

[65] Miroslav Riha, Viktor Riha, Martha Capirchio, and 2329576 Ontario Inc. amend their Statement of Claim. They first proposed to amend their claim in a letter from their counsel dated November 26, 2018, but as noted below, it took several years to complete the process .

[66] On February 8, 2019 , Justice Nakatsuru grants leave to Allen Wilford, A. Wilford Professional Corporation, and Catherine Racine to bring a motion for a summary judgment. The motion is scheduled for September 10, 2019.

[67] On March 8, 2019 , Allen Wilford, A. Wilford Professional Corporation, and Catherine Racine bring a motion to amend their Statement of Defence to plead a limitations defence and for an order granting a summary judgment dismissing the Plaintiffs’ action.

[68] On May 26, 2020 , Allen Wilford, A. Wilford Professional Corporation, and Catherine Racine deliver an amended Notice of Motion for summary judgment.

[69] On September 11, 2020, at a case conference, Justice O’Brien observes that it would be desirable to consolidate Wilford’s Barrie Action with the Toronto Action. In the meantime, she directs the parties to schedule another conference to establish a timetable for Allen Wilford, A. Wilford Professional Corporation, and Catherine Racine’s summary judgment motion.

[70] On October 15, 2020, Justice O’Brien grants leave to the parties to amend their pleadings and fixes a partial timetable for Allen Wilford, A. Wilford Professional Corporation, and Catherine Racine’s summary judgment motion. The defendants consent to the amendment to the Statement of Claim without prejudice to their right to allege that the proposed amendments were statute-barred. In their amended pleading, the plaintiffs add two causes of action, breach of trust and misappropriation of trust funds, and additional allegations against Ms. Racine.

E. Discussion and Analysis

[71] Allen Wilford, A. Wilford Professional Corporation, and Catherine Racine submit that the plaintiffs’ June 2016 claim is statute-barred because: (a) the Rihas were aware of the impugned consolidation of the proceedings and its impact in 2013; and (b) the settlement of the consolidated proceedings – a settlement in respect of which they obtained ILA – was entered into on November 27, 2013. With the negligence action - which is outside the jurisdiction of an assessment officer - resolved, the Wilford Defendants pursuant to Justice Lederer’s Order, seek the assessment of the law firm’s account decided by an assessment officer.

[72] The relevant provisions of the Limitations Act, 2002 are sections 1, 4 , and 5 , which are set out below:

Definitions

1. In this Act,

“claim” means a claim to remedy an injury, loss or damage that occurred as a result of an act or omission; ….

BASIC LIMITATION PERIOD 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.

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 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).

Presumption

(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.

[73] Prior to the enactment of s. 5(1)(a)(iv) of the current Limitations Act, 2002, the judge-made discoverability principle governed the commencement of a limitation period. The discoverability principle stipulated that a limitation period begins to run only after the plaintiff has the knowledge, or the means of acquiring the knowledge, of the existence of the facts that would support a claim for relief. Kamloops v. Nielson (1984), 1984 SCC 21, 10 D.L.R. (4th) 641 (S.C.C.); Central Trust Co. v. Rafuse (1986), 1986 SCC 29, 31 D.L.R. (4th) 481 (S.C.C.); Peixeiro v. Haberman, 1997 SCC 325, [1997] 3 S.C.R. 549. The discoverability principle conforms with the idea of a cause of action being the fact or facts which give a person a right to judicial redress or relief against another. Lawless v. Anderson, 2011 ONCA 102 at para. 22; Aguonie v. Galion Solid Waste Material Inc. (1998), 1998 ONCA 954, 38 O.R. (3d) 161 at p. 170 (C.A.).

[74] Subject to the adjustment made by s. 5(1)(a)(iv), which adds the element that a proceeding is an appropriate means to seek a remedy, the basic limitation period of two years under the Limitations Act, 2002, a claim is “discovered” on the earlier of the date the claimant knew - a subjective criterion - or ought to have known - an objective criterion - about the claim. Ferrara v. Lorenzetti, Wolfe Barristers and Solicitors, 2012 ONCA 851 at paras. 33 and 70.

[75] Pursuant to s. 5(2) of the Limitations Act, 2002, unless the contrary is proven, it is presumed that a claimant will know of the above matters on the day that the act or omission took place.

[76] Under the discoverability principle, a limitation period commences when the plaintiff discovers the underlying material facts or, alternatively, when the plaintiff ought to have discovered those facts by the exercise of reasonable diligence. Central Trust Co. v. Rafuse, 1986 SCC 29, [1986] 2 S.C.R. 147 at p. 224. The date upon 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 particular case; it is a fact-based analysis. Madden v. Holy Cross Catholic Secondary School, 2015 ONSC 1773 at para. 17; Lipson v. Cassels Brock & Blackwell LLP, 2013 ONCA 165; Ferrara v. Lorenzetti, Wolfe Barristers and Solicitors, 2012 ONCA 851 at para. 71; Lawless v. Anderson, 2011 ONCA 102 at para. 22; Zapfe v. Barnes (2003), 2003 ONCA 52159, 66 O.R. (3d) 397 (C.A.); Kenderry-Esprit (Receiver of) v. Burgess, MacDonald, Martin and Younger (2001), 2001 ONSC 28042, 53 O.R. (3d) 208, at para. 19 (S.C.J.); Smyth v. Waterfall (2000), 2000 ONCA 16880, 50 O.R. (3d) 481 at para. 8 (C.A.).

[77] The discoverability of a claim for relief involves the identification of the wrongdoer, and also, the discovery of his or her acts or omissions that constitute liability. Aguonie v. Galion Solid Waste Material Inc., (1998), 1998 ONCA 954, 38 O.R. (3d) 161 (C.A.); Ladd v. Brantford General Hospital (2007), 2007 ONSC 45921, 88 O.R. (3d) 124 (S.C.J.). It is not enough that the plaintiff has suffered a loss and has knowledge that someone might be responsible; the identity and culpable acts of the wrongdoer must be known or knowable with reasonable diligence. Nikolova v. JR Property Services Corp., 2019 ONSC 3566 at para. 12 (Master); Miano v. Campos, 2019 ONSC 1816 at paras. 16–20; Mark v. Guelph (City) (2011), 2010 ONSC 6034, 104 O.R. (3d) 471 (S.C.J.); Zurba v. Lakeridge Health Corp. (2010), 2010 ONSC 318, 99 O.R. (3d) 596 (S.C.J.); Greenway v. Ontario (Minister of Transportation) (1999), 1999 ONSC 14797, 44 O.R. (3d) 296 (Gen. Div.). Discovery means knowledge of the facts that may give rise to the claim, and the knowledge required to start the limitation period is more than suspicion and less than perfect knowledge. Vu v. Canada (Attorney General); 2021 ONCA 574 at para. 47; Grant Thornton LLP v. New Brunswick 2021 SCC 31; Zeppa v. Woodbridge Heating & Air-Conditioning Ltd., 2019 ONCA 47 at para. 41, leave to appeal refused, [2019] S.C.C.A. No. 91.

[78] The plaintiff is required to act with due diligence in acquiring facts to be fully apprised of the material facts upon which a claim can be based. McSween v. Louis, 2000 ONCA 5744, [2000] O.J. No. 2076 at para. 46 (C.A.); Soper v. Southcott (1998), 1998 ONCA 5359, 39 O.R. (3d) 737 at 744 (C.A.). However, while due diligence is a factor that informs the analysis of when a claim ought to have reasonably been discovered, lack of due diligence is not a separate and independent reason for concluding that a plaintiff’s claim is statute-barred. The idea rather is that when a reasonable person with the abilities and in the circumstances of the plaintiff would acquire facts to become knowledgeable about the claim, the limitation period does not stop running if the plaintiff takes no steps to investigate whether he or she has a claim. Murphy v. S.P. Hart Home Inspections, 2018 ONSC 1648; Wong v. Salivan Landscape Ltd., 2016 ONSC 4183 (Master); Galota v. Festival Hall Developments Ltd., 2016 ONCA 585, aff’g 2015 ONSC 6177; Fennell v. Deol, 2016 ONCA 249; Longo v. MacLaren Art Centre Inc., 2014 ONCA 526.

[79] When a limitation period defence is raised, the onus is on the plaintiff to provide evidence to show that its claim is not statute-barred and that he or she behaved as a reasonable person in the same or similar circumstances using reasonable diligence in discovering the facts relating to the limitation issue. Fontanilla Estate v. Thermo Cool Mechanical, 2016 ONSC 7023; Unegbu v. WFG Securities of Canada Inc., 2015 ONSC 6408, aff’d 2016 ONCA 501 (C.A.); Durham (Regional Municipality) v. Oshawa (City), 2012 ONSC 5803 at paras. 35–41; Bolton Oak Inc. v. McColl-Frontenac Inc., 2011 ONSC 6567 at paras. 12–14; Pepper v. Zellers Inc. (c.o.b. Zellers Pharmacy) (2006), 2006 ONCA 42355, 83 O.R. (3d) 648 at paras. 20–22 (C.A.); Bhaduria v. Persaud (1998), 1998 ONSC 14846, 40 O.R. (3d) 140 (Gen. Div.). What a reasonable person in the same or similar circumstances of the plaintiff knew or ought to have known is a question of fact. Arcari v. Dawson, 2016 ONCA 715; Lima v. Moya, 2015 ONSC 324 at para. 76, aff’d 2015 ONSC 3605 (Div. Ct.).

[80] However, the discovery of a claim does not depend upon the plaintiff knowing that his or her claim is likely to succeed, which is the matter that will be determined by his or her lawsuit; Sosnowski v. MacEwan Petroleum Inc., 2019 ONCA 1005. The limitation period runs from when the prospective plaintiff has or ought to have had, knowledge of a potential claim. Salman v. Patey, 2016 ONSC 7999; Szanati v. Melnychuk, 2016 ONSC 1293; Hughes v. Dyck, 2016 ONSC 901; Brown v. Wahl, 2015 ONCA 778; Cassidy v. Belleville (City) Police Service, 2015 ONCA 794; Lochner v. Toronto (City) Police Services Board, 2015 ONCA 626 at para. 7; Tender Choice Foods Inc. v. Versacold Logistics Canada Inc., 2013 ONSC 80 at paras. 58–61, aff’d 2013 ONCA 474. 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. Vu v. Canada (Attorney General); 2021 ONCA 574; Brantford Engineering and Construction Ltd. v. Brantford (City), 2015 ONSC 5191; Lawless v. Anderson, 2011 ONCA 102 at para. 23; McSween v. Louis, 2000 ONCA 5744, [2000] O.J. No. 2076 (C.A.); Soper v. Southcott (1998), 1998 ONCA 5359, 39 O.R. (3d) 737 (C.A.); Gaudet v. Levy (1984), 1984 ONSC 2047, 47 O.R. (2d) 577 at p. 582 (H.C.J.). 2016 ONCA 327. For the limitation period to begin to run, it is enough for the plaintiff to have prima facie factual 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; Duchesne v. St-Denis, 2012 ONCA 699 at paras. 24–27; Gaudet v. Levy (1984), 1984 ONSC 2047, 47 O.R. (2d) 577 (H.C.J.).

[81] Ignorance of the law does not postpone the commencement of the limitation period; the circumstance that a potential claimant may not appreciate the legal significance of the facts does not postpone the running of the limitation period if the claimant knows or ought to know the constituent elements of his or her cause of action. Pickering Square Inc. v. Trillium College Inc., 2014 ONSC 2629 at para. 52, aff’d 2016 ONCA 179; Holley v. Northern Trust Co., Canada, 2014 ONSC 889 at para. 156, aff’d 2014 ONCA 719; Liu v. Silver, 2010 ONSC 2218, aff’d 2010 ONCA 731; Nicholas v. McCarthy Tétrault LLP, 2008 ONSC 54974, [2008] O.J. No. 4258 at para. 27 (S.C.J.), aff’d 2009 ONCA 692, [2009] O.J. No. 4061 (C.A.).

[82] In the immediate case, unpacking the Wilford Defendants’ submission that the Plaintiffs’ solicitor’s negligence action is statute-barred, it should be appreciated that the Wilford Defendants have cleverly framed the question of whether the Plaintiffs’ solicitor’s negligence action is statute-barred as being about just the two matters of: (a) the allegedly surreptitious consolidation of actions that occurred in 2013, and (b) the allegedly improvident settlement that occurred in 2014.

[83] However, for present purposes, the problem for the Wilford Defendants is that there is a genuine issue requiring a trial about whether they have correctly characterized the Plaintiffs’ action against the Wilford Defendants.

[84] The Plaintiffs, using the language of the Limitations Act, 2002, s. 5(1) (iv) submit that they did not and could not have had enough knowledge of the facts of all of their claims and causes of action against the Wilford Defendants to understand “having regard to the nature of the injury loss or damage sustained”, that “a proceeding would be appropriate” until the law firm delivered a demand for payment and invoices in October 2014. Thus, the Plaintiffs submit that the limitation period would have tolled in October 2014 and thus their action, which was commenced in June 2016, was timely and is not statute-barred. The Plaintiffs further submit that the material facts of the causes of action added in the Amended Statement of Claim are built on the material facts of the original pleading.

[85] For my part, I conclude that there is a genuine issue requiring a trial about the characterization of the plaintiffs’ action and that the evidentiary record is not adequate to decide this genuine issue associated with the limitation period and it would not be in the interests of justice to decide it.

[86] Further, even if I were to characterize the Plaintiffs’ action as the Wilford Defendants would have it characterized, there are genuine issues requiring a trial including significant issues about the credibility and reliability of the evidence of both sides about the circumstances of the consolidation of the actions and the settlement of Miroslav Riha’s collection claim and the settlement of the financial and property aspects of the matrimonial action. The evidence is inadequate to decide these genuine issues summarily. Given the serious nature of the allegations and counter-allegations it is not in the interests of justice to decide this action summarily.

F. Conclusion

[87] For the above reasons, I dismiss the summary judgment motion with costs in the cause.

Perell, J.

Released: February 16, 2022