COURT FILE NO.: CV-18-611524
DATE: 20220520
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANICA VISIC
Plaintiff
– and –
ELIA ASSOCIATES PROFESSIONAL CORPORATION ET AL.
Defendants
Anica Visic, self-represented Plaintiff/Responding Party
Antoni Casalinvovo, self-represented Defendants/Moving Parties
HEARD: November 1, 2021
VELLA J.
REASONS FOR DECISION
[1] This is a motion for summary judgment, under Rule 20, brought by the Defendants, Elia Associates Professional Corporation and Patricia Elia (collectively, “Elia Associates”). In the alternative, Elia Associates seeks an order under r. 25.11 striking the claim as an abuse of process. In the further alternative, Elia Associates seeks an order staying this proceeding, pending payment of outstanding cost orders.
[2] The plaintiff, Anica Visic (“Visic”), requests that the motion be dismissed and leave to amend her statement of claim.
[3] For the reasons that follow, the motion for summary judgment is granted and the action is dismissed.
BACKGROUND
[4] The Plaintiff, Anica Visic (“Visic”), is a lawyer called to the bar of Ontario. From July 2007 to December 2007, she articled with Elia Associates (or a predecessor law firm). Patricia Elia (“Elia”) was her principal.
[5] Elia Associates terminated Visic’s employment as an articling student on a without cause basis effective December 14, 2007 by way of written notice of termination. Elia filed a Certificate with the Law Society of Upper Canada (now the Law Society of Ontario, “LSO”) recommending that Visic complete an additional six months of articles.
[6] Visic commenced an application before the Human Rights Tribunal of Ontario (“HRTO”) alleging, in part, discrimination on the basis of a physical disability against Elia Associates having to do with the fact that the University of Windsor (“UoW”) issued an official law school transcript that revealed that Visic did not successfully complete her first year. Visic did not disclose her official law school transcripts to Elia Associates but did disclose her unofficial transcript that accurately set out her marks. The reason why Visic did not volunteer her official transcripts was because she would be forced to advise prospective employers that she had had a physical disability (she could not use her arm/hand to write/type as a result of experiencing myofascial pain) which explained why she had not successfully completed her initial first year of law school. She felt that this disclosure both violated her privacy and amounted to discrimination on the basis of a disability.
[7] During the course of the HRTO hearing, in 2009, Elia testified about her view that Visic had misrepresented her law school career to her law firm by having provided only her unofficial transcripts rather than her official transcripts. In Elia’s view, this was an attempt by Visic to hide the fact that she did not successfully complete her first year of law school. Notably, Visic was re-admitted into law school, and successfully completed her LL.B. She was also embroiled in a dispute with UoW to expunge the first year and medical component of her transcripts on the alleged basis that to include same was discriminatory on the basis of a physical disability, which resulted in multiple legal proceedings and challenges by Visic, all of which were unsuccessful.
[8] Visic sought a partial publication ban and anonymization order on the basis that publicity surrounding the allegations (mainly, Elia Associates’ allegations concerning the failure to disclose her official law school transcripts) would affect her future employment prospects and would be harmful to her future career as a lawyer.
[9] The HRTO dismissed Visic’s claims on the merits (Visic v. Elia Associates Professional Corporation, 2011 HRTO 1230). In the course of its reasons, the HRTO reiterated its decision to deny the partial publican ban and anonymization order sought by Visic.
[10] Visic unsuccessfully appealed the HRTO’s decision to the Divisional Court (Visic v Ontario (Human Tights Tribunal), 2015 ONSC 7163, 343 O.A.C. 318 (Div. Ct.). Leave to appeal to the Ontario Court of Appeal and the Supreme Court of Canada were each denied.
[11] In 2012, in response to Visic’s application for a licence to practice law in Ontario, and concerns raised by Elia, the LSO initiated a “good character” hearing before the Law Society Hearing Panel (“LSHP”).
[12] During the course of the LSHP hearing into Visic’s “good character”, Elia again testified that, in her view, Visic had misrepresented her academic standing by failing to provide her official transcripts from law school and this, in her view, called into question Visic’s character and suitability as a future lawyer.
[13] Visic was ultimately vindicated by the LSHP hearing panel on April 18, 2013 of any alleged intentional dishonesty or misconduct in relation to the issue of the transcripts. Visic had tendered her unofficial transcripts which accurately set out her marks, and the fact that the transcripts were unofficial was clearly marked on the face of the document. Elia Associates did not request a copy of her official transcripts. Accordingly, Visic was granted her licence to practice law in Ontario conditional on her being employed by another lawyer for a period of two years from the date of issuance of her licence (Visic v. Law Society of Upper Canada, 2013 ONLSHP 71).
[14] Visic commenced this action by way of Notice of Action issued on December 21, 2018 against Elia Associates and the University of Windsor. The statement of claim is also dated December 21, 2018. The Notice of Action and Statement of Claim were served on Elia Associates in June 2019.
[15] Elia Associates and the University of Windsor jointly made a request under r. 2.1.01(6) to have Visic’s action struck on the basis that the proceeding appeared on its face to be frivolous or vexatious or otherwise an abuse of process in light of the findings of the HRTO (Visic had also made an application to the HRTO against UoW). Justice Nishikawa dismissed the claims as against the University of Windsor as frivolous, vexatious and an abuse of process (Visic v. Elia Associates Professional Corporation, 2019 ONSC 7238, at para. 18).
[16] After receiving Visic’s written responding submissions, Nishikawa J. found, at para. 16, that the action as framed against the UoW was “yet another attempt to relitigate the same issues raised in Ms. Visic’s previous action in this court” (Visic v. University of Windsor, 2013 ONSC 2063) and before the HRTO, both of which had been dismissed.
[17] As regards Elia Associates, however, Nishikawa J. found that this as not one of the “clearest of cases, where the hallmarks of frivolous, vexatious or abusive litigation are plainly evident on the face of the pleading” (para. 23). This was because it was not clear that the HRTO decision constituted res judicata or issue estoppel as related to Elia Associates since the civil action as against them relates to allegations that the Elia Associates falsely alleged to the LSO “and others” that Visic had been dishonest and unprofessional by failing to disclose her official law school transcripts. In the HRTO application, the claims against Elia Associates were framed in discrimination and harassment on the basis of a physical disability as related to her termination by Elia Associates and not defamation or the other causes of action alleged in this action.
[18] Furthermore, unlike as against the UoW, there was no prior civil action as against Elia Associates.
[19] Nishikawa J. declined, at para. 22, to make any finding in relation to the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, finding that r. 2.01.1 is not an appropriate forum for resolution of that type of defence, since discoverability would likely be engaged.
[20] On January 21, 2021, after the request under r. 2.1.01 was dismissed as against Elia Associates, the statement of defence was delivered.
[21] On February 1, 2021, Visic delivered a lengthy Reply prepared by Visic’s former lawyer. At paragraph 7, Visic pleads that the causes of action did not arise or accrue, and were not discovered, prior to December 2018 but plead very little in the way of facts to support this plea. At para. 47 of the Reply, the Visic alleges that when she filed the application before the HRTO in 2008 she was not yet aware of the “false statements to the Law Society and others” allegedly made by Elia Associates. At para. 76 of the Reply, Visic further alleges that Elia Associates (through Elia) made false statements against her at the good character hearing conducted by the LSO’s hearing panel.
[22] As stated, Visic had submitted her unofficial law school transcripts to Elia Associates when she applied for articling. These transcripts showed her law school grades. However, she was reluctant to submit her official law school transcripts to Elia Associates because by doing so she would have had to reveal her past physical disability to explain why she did not successfully complete her first-year academics and had to be re-admitted (based on the requisite medical evidence confirming her past physical disability).
[23] The parties have been mired in litigious proceedings since about 2006 before various tribunals and all levels of court (Footnote 12 of the moving parties’ factum lists the various proceedings against or involving UoW and/or Elia Associates by or involving Visic).
[24] In the course of the litigation, costs awards have been issued against Visic and in favour of Elia Associates in the total sum of $18,300.00. This remains outstanding.
[25] This motion was originally brought returnable June 30, 2021. However, due to Visic’s lawyer’s motion to be removed as lawyer of record, the motion was adjourned on April 22, 2021, preemptory on Visic, to allow Visic to retain another lawyer.
[26] The parties attended at Civil Practice Court on August 24, 2021 and Dunphy J. fixed a new hearing date of November 1, 2021. His Honour also set a timetable, preemptory on Visic, which included a date for Visic’s responding record to be served, and cross examinations to be concluded by October 15, 2021. This was an aggressive timetable set to reflect the fact that Visic had been in possession of Elia Associates’ motion record for several months, had been the cause of the delay, and the necessity to have this motion heard as soon as possible.
[27] At the outset of the motion, Elia Associates emphasized that their main argument was that this action was barred by operation of s. 4 of the Limitations Act, 2002 and was seeking summary judgment on that basis. In addition, Elia Associates withdrew their reliance on r. 21, and instead relied only on r. 25.11 in support of their alternative argument that the action should be struck as an abuse of process.
Preliminary Issues
Failure by Patricia Elia to Attend Cross Examination
[28] On October 4, 2021, Visic provided notice to cross examine Patricia Elia on her original affidavit, sworn February 8, 2021. Elia Associates replied that it was too late in the process and Patricia Elia would not be produced.
[29] It will be recalled that in the timetable set by Dunphy J., preemptory on Visic, cross examinations were to be completed by October 15, 2021.
[30] Elia Associates seek an order striking the notice of cross examination, if necessary, as an abuse of process.
[31] Visic did not produce a notice of examination, or a certificate of nonattendance.
[32] Furthermore, while Visic raised this issue during oral submissions, she did not seek relief, such as a request for an adjournment of the motion or a sanction under r. 34.15. There is no evidence suggesting that Visic had scheduled the cross examination with a court reporter, or that Visic attended at the cross examination.
[33] It is also to be noted that under r. 39.02(3) the right to cross examine must be exercised with reasonable diligence. Visic had Elia’s affidavit since on or about February of 2021, when she was represented by a lawyer. Neither she nor her prior lawyer took any steps to advance this right until October 1, 2021.
[34] In any event, in light of the fact that Visic did not seek any relief under r. 34.15 or otherwise in her factum (dated October 25, 2021) or during the hearing, I need not rule on this matter.
Request to amend the statement of claim
[35] Visic sought leave to amend her statement of claim to plead the doctrine of fraudulent concealment and “for other relief”, including a request for interim costs based on her impecuniosity. Apparently, her cross motion was to be scheduled at Civil Practice court on October 3, 2021. She did not bring a cross motion seeking this relief, nor did she provide a proposed draft amended statement of claim, and the cross motion was not scheduled.
[36] Visic points out that her prior lawyer advised Elia Associates of an intention to amend her statement of claim. However, in the timetable set by Dunphy J. at Civil Practice court on August 24, 2021, there is no mention of a cross motion to amend the statement of claim or any such indication of such an intention.
[37] The present Statement of Claim and Reply do not plead the requisite facts to support a plea based in the doctrine of fraudulent concealment. As well, Visic has not adduced sufficient evidence supporting a claim of fraudulent concealment of facts in response to the limitation defence save for a single paragraph in her affidavit where she makes an unsupported bald allegation as to her belief that Elia Associates “concealed their allegations of misconduct as the reason for the termination of my employment”.
[38] Without providing the court with the benefit of a draft statement of claim it is not possible to consider this request.
[39] Furthermore, Visic failed to bring a cross motion setting out the relief or basic grounds in support and hence Elia Associates was unable to properly respond.
[40] In the circumstances, leave to amend the Statement of Claim (or, more properly, the Reply) is denied.
ISSUES
[41] The issues for determination are:
a. Is there a genuine issue requiring a trial with respect to the alleged expiry of the limitation period under section 4 of the Limitations Act, 2002 having regard to the statutory discoverability factors listed in section 5 of the Act?
If yes, then
b. Is it plain and obvious that Visic’s claim cannot be successful under r. 25.11?
If no, then
c. Should the proceeding be stayed pending Visic’s payment of the outstanding cost orders in favour of Elia Associates?
ANALYSIS
Summary Judgment Motion Test
[42] Rule 20 provides that the court shall grant summary judgment where it is established on the evidentiary record that there is no genuine issue requiring a trial.
[43] The Supreme Court of Canada, in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at paras. 5 and 28, stated that the summary judgment process is to be interpreted broadly, and will be appropriate where it will provide a proportionate and fair adjudication of claims in an affordable, timely and just manner.
[44] The Supreme Court of Canada’s approach to summary judgment motions is informed by the economic reality that access to justice has become unreachable for many Canadians where it requires a trial, and that a cultural shift is necessary in order to enhance access to justice through alternative routes such as a summary judgment motion. Making use of those routes can provide “timely and affordable access to the civil justice system” (Hryniak, at paras. 1-3).
[45] In Hryniak, at para. 49, the court set out a framework for determining whether there is a genuine issue that requires a trial as opposed to the summary judgment process afforded by Rule 20:
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.
[46] Then, at para. 66 of Hryniak, the Court set out a roadmap for assessing whether summary judgment was the appropriate forum in which to secure timely and affordable access to justice:
On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2).
[47] At a summary judgment motion, however, both parties must put their best foot forward by adducing credible evidence that supports their respective positions. The responding party, in particular, cannot rely on bald allegations or the intention to adduce further evidence at trial to support her claims.
[48] In Webster v. Almore Trading, 2010 ONSC 3854, 84 C.C.E.L. (3d) 144, the court, at para. 3, described the onus in relation to a summary judgment motion as follows:
Rule 20.04(2) provides that the court must grant summary judgment where there is “no genuine issue requiring a trial.” While the ultimate burden lies with the moving party, both sides are expected to put forward the best available evidence with respect to the existence or non-existence of material issues requiring trial.
[49] In the context of a motion for summary judgment based on the allege expiry of the relevant limitation period, the court in Kamalanathan v. CAMH et al., 2019 ONSC 56, at para. 42, described the onus of the responding plaintiff as follows:
Summary judgment motions may by brought be defendants in relation to the application of limitation period defences, even in cases where an issue is raised about the discoverability of the claim. When confronted by a motion for summary judgment, the plaintiffs cannot solely rely on their pleading of discoverability. Where a plaintiff relies on a date for either objective or subjective knowledge, they must establish that date on the evidence. The failure of a plaintiff to respond to the summary judgment motion with evidence to rebut the presumption in s. 5(2) of the Limitations Act, 2002 is fatal: Hawthorne v. Markham Stouffville Hospital, 2016 ONCA 10 at para. 8.
Limitation Period Analysis
[50] The issue here is whether, based on the evidentiary record before me, there is a genuine issue requiring a trial to determine whether Visic did or ought reasonably to have discovered her claims as against Elia Associates in a time frame beyond the two-year period set out in s. 4 of the Limitations Act, 2002, having regard to the factors listed under s. 5(1)(a) and recognizing the statutory presumption under s. 5(2) of the Act.
[51] The relevant provisions of the Limitations Act, 2002, are as follows:
Basic limitation period
- 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.
[52] In Apotex Inc. v. Nordion (Canada) Inc., 2019 ONCA 23, 431 D.L.R. (4th) 262 (a breach of contract case), the Court of Appeal, at para. 81, observed that s. 5(1)(a) has been described as a subjective test as it looks to the plaintiff’s subjective knowledge. Section 5(1)(b), however, has been described as a modified objective test because it looks to what a reasonable person with the abilities and in the circumstances of the plaintiff ought to have known to determine the commencement of the applicable limitation period. Furthermore, at para. 82, the Court affirms that s. 5(2) sets out a presumption that the plaintiff will have known of her cause of action on the day the relevant act or omission took place. The onus then shifts to the plaintiff to rebut that presumption by demonstrating through evidence that the claim was discovered at a date that is subsequent to the date on which that act or omission took place, having regard to the factors set out in s. 5(1)(a) (Apotex at paras. 83, 87).
[53] Furthermore, in order to rebut the statutory presumption in the context of a summary judgment motion, the plaintiff need only show that she has, through evidence, raised a genuine issue requiring trial with respect to at least one of the factors set out in s. 5(1)(a) operating to postpone the commencement of the limitation period to within two years from the commencement of the litigation. In this case, the parties agree that the requisite limitation period is the two-year basic period set out in s. 4 of the Limitations Act, 2002.
[54] In reviewing the individual factors under s. 5(1)(a), the Court in Apotex, at para. 88, noted that it is well-settled that the plaintiff need not know the full extent of the injury, loss or damage in order to trigger the commencement of the limitation period, providing she knew that “some damage has occurred” (emphasis omitted).
[55] In Apotex, at para. 89, the Court of Appeal described the statutory discoverability and presumption test in s. 5 of the Limitations Act, 2002 as follows:
To summarize, under the LA 2002, the limitation period does not begin to run until all of the factors enumerated in s. 5(1)(a) have been satisfied, unless a reasonable person ought to have known of their existence at an earlier date (s. 5(1)(b)).
[56] Visic places primary reliance on her position that she could not know, and still does not know, to whom, including which prospective employers, Elia Associates have allegedly made statements relating to Elia Associates’ stated concerns about her behaviour as related to the official transcripts as earlier described. She believes that Elia Associates must have poisoned her ability to obtain a job from a law firm in 2018 and therefore her harms could not be discovered until then. She also submits that she has not discovered either the full scope of her claim or the extent of the damages even as at the commencement of this action in 2018.
[57] In her statement of claim, Visic seeks damages in the amount of $500,000 for “invasion of privacy, breach of fiduciary duty, breach of confidence, breach of contract, negligence, defamation, and infringement of the Ontario Human Rights Code” against all of the defendants, including the University of Windsor. However, as noted, Nishikawa J. struck the action as against UoW under r. 2.1.01.
[58] At paragraph 10 of her statement of claim, Visic particularizes her claim against Elia Associates. She pleads that “Elia Associates and Patricia Elia falsely alleged to the Law Society of Ontario (“LSO”) and others that the Plaintiff had been dishonest by failing to disclose to them the transcripts which the Defendant U of W [University of Windsor] had produced which displayed the results of her first year attendance at the Defendant U of W Faculty of Law; denigrated the Plaintiff’s academic accomplishments; and falsely contended to the LSO and others that the Plaintiff had behaved unprofessionally”.
[59] Beyond paragraph 10 of the Statement of Claim, there are no facts pleaded in relation to the torts of invasion of privacy, breach of fiduciary duty, breach of confidence, negligence, defamation, breach of contract, or infringement of the Human Rights Code, R.S.O. 1990, c. H.19. The Statement of Claim also does not allege a claim based in wrongful dismissal against Elia Associates (unlike the human rights application Visic launched against the law firm and which was dismissed).
[60] The Statement of Defence pleads that Visic discovered her claim in 2009 when the HRTO conducted its hearing and when Visic’s lawyer responded to the LSO’s letter outlining Elia’s allegations or, at the latest, 2012 when the Law Society Hearing Panel (“LSHP”) conducted its hearing, on the basis that the impugned statements were the subject of Elia’s testimony given at each of those hearings.
[61] The Reply delivered by Visic is much more detailed than the Statement of Claim and consists of 96 paragraphs. However, it does not provide much by way of additional material facts regarding the causes of action or the alleged impugned statements and disclosures by Elia Associates to “others”, including the content, identity of recipients, and timing of the disclosures. The Reply pleads that Visic has lost opportunities to apply for and to obtain employment or to establish her own practice due to the harm, including damage to reputation caused by Elia Associates, without providing specifics of any particular lost employment opportunities.
[62] In response to the limitations defence, the Reply pleads that it was not until Visic discovered the consequences of Elias Associates’ impugned actions through her communications with the “prospective employers” in December 2018 leading to those prospective employers to ask her about the situation involving Elia Associates and the official law school transcript and the false statements allegedly made by Elia Associates at the LSHP’s “good character” hearing in 2012 that she discovered her claim. No other material facts are provided in the Reply concerning the factors set out in s. 5(1)(a) of the Limitations Act, 2002.
[63] At paras. 88-89 of the Reply, Visic specifically pleads and relies on ss. 5 and 15 of the Limitations Act, 2002 (and the Act as a whole); and then pleads that she continued employment with Glober and Associates (as an articling student, law student, and then lawyer to December 2015), after which she has only had two “short” work assignments and has otherwise been unsuccessful in finding employment as a lawyer.
[64] In terms of damages, Visic pleads that the alleged misconduct has caused her considerable emotional distress, loss of income and future earning potential, but does not provide any further specifics.
[65] At the time the pleadings were exchanged and at the initial stage of the proceedings, Visic was represented by a lawyer.
[66] The initial burden of proof is on Elia Associates, as the moving parties, to demonstrate that Visic’s claims raise no genuine issue requiring a trial, as a result of the application of s. 4 and s. 5(2) of the Limitations Act, 2002.
[67] Elia Associates claims that Visic was aware of the “act(s) or omission(s)” that form the basis of her claim in 2009 within the context of the HRTO hearing when, during the course of that hearing, Elia testified and uttered the pleaded statements/allegations attacking Visic’s honesty, integrity and professionalism. Furthermore, on June 25, 2009, Visic’s lawyer responded to the LSO’s lawyer with respect to Elia’s pleaded statements/allegations in the context of the LSO’s investigation into Visic’s fitness to be called to the bar of Ontario (culminating in the good character hearing).
[68] In the alternative, Elia Associates claim that Visic knew of the impugned acts or omissions by 2012 at the latest, when the LSHP conducted its good character hearing into this matter. Visic was present to hear Elia’s testimony at the LSHP hearing during which Elia repeated substantially the same impugned injurious statements she made at the HRTO hearing concerning the lack of disclosure of the official transcripts. Visic was also represented by a lawyer at this hearing.
Elia Associates’ evidence.
[69] It is Elia Associates’ position that the acts in question are the allegedly defamatory or injurious statements made by Elia in 2009 and repeated in 2012 in the context of the prior legal proceedings, and that this triggered the commencement of the applicable limitation period in either 2009 or 2012, under the statutory presumption in s. 5(2) of the Limitations Act, 2002.
[70] Elia Associates submit that Visic was also aware of the harm these statements would cause her career because, near the end of the hearing and after hearing Ms. Elia’s testimony at the HRTO, she brought a motion for a partial publication ban and anonymization order before the HRTO. The basis of her request was to protect her professional reputation and avert potential harm to her future career opportunities. As stated, this motion was denied by the HRTO.
[71] There is no dispute that the gravamen of Visic’s claims is based in her allegation that the injurious acts are the statements allegedly made by Elia Associates to Visic’s prospective employers and these are the same statements as were the subject of the HRTO hearing and the subsequent LSHP hearing into Visic’s good character. Furthermore, all of Visic’s causes of action as plead are based on these same statements.
[72] Therefore, subject to the application of the factors under s. 5(1)(a) of the Limitations Act, 2002, based on the undisputed evidence that Visic knew Elia spoke the impugned statements at the 2009 HRTO hearing, her lawyer’s response to the LSO’s letter of June 25, 2009, and Elia’s testimony at the 2012 LSHP proceedings, there is no genuine issue requiring a trial that pursuant to s. 5(2) of the Limitations Act, 2002 the two-year period stipulated by s. 4 of that Act commenced in 2009 or by 2012 at the latest. By these dates, Visic had actual knowledge of the “act or omission” on which her claim, as pleaded, is based. Accordingly, the moving parties, Elia Associates, have discharged their initial burden of proof in establishing on the evidence a prima face case that the action was started more than 2 years after the commencement of the limitation period under s. 4 of the Act.
[73] The burden therefore shifts to Visic to rebut the statutory presumption established by s. 5(2) of the Limitations Act, 2002 by demonstrating, with credible evidence, that there is a genuine issue requiring a trial with respect to whether any of the factors listed in s. 5(1)(a) have postponed the commencement of the limitation period to a timeframe within two years of commencing this action, having regard to the subjective and modified objective tests set out in ss. 5(1)(a) and 5(1)(b) of the Act, respectively.
[74] The hurdle for Visic is, as the next section will demonstrate, her failure to adduce any credible evidence to establish that Elia Associates made any such defamatory and injurious statements after 2012, and more specifically after in or around December 20, 2016, with particular regard to the factors in s. 5(1)(a)(i)-(iii) of the Act. Alternatively, Visic must show that there is a genuine issue requiring a trail to establish that she was justified in delaying her action until the conclusion of her last leave to appeal application before the Supreme Court of Canada under s. 5(1)(a)(iv) of the Act. Without any evidence, she cannot rebut the presumption established by s. 5(2).
[75] Furthermore, as will be seen in the next section, Visic has not adduced any credible evidence that she lost any potential job opportunities or that her career was otherwise impaired as a lawyer as a result of Elia’s impugned statements made during the course of Elia’s testimony at the HRTO and/or LSPH proceedings or afterward.
[76] As an aside, the court asked Elia Associates’ counsel for his position regarding the doctrine of witness immunity. However, neither Elia Associates nor Visic advanced an argument on this basis, and so it will not be addressed.
Visic’s Evidence
[77] It is incumbent on Visic to put forward her best available evidence in response to this motion for summary judgment. She may not rely merely on bald allegations nor on the promise that more evidence will be forthcoming at trial.
[78] Visic relies heavily on the Reasons for Decision rendered by the LSHP dated April 18, 2013 (reported at Anica Visic v. Law Society of Upper Canada, 2013 ONLSHP 71). She incorporates by reference and repeats verbatim several paragraphs from the Reasons into her affidavit as evidence. She deposes at para. 15 of her affidavit that in the event of inconsistencies between her affidavit and the Reasons for Decision, she relies on the LSHP’s decision. The purpose of her reliance is to demonstrate that the LSHP hearing did not resolve the issues that she has raised in her lawsuit. However, the Reasons for Decision are not admissible, per se, as evidence.
[79] Rather, the LSHP’s decision is relevant to determine whether the civil action is an abuse of process by way of an attempt to relitigate the issues resolved by that tribunal, and for LSHP’s ultimate disposition; namely, that Visic did not conduct herself dishonestly or without integrity in relation to Elia’s concerns surrounding Visic’s decision not to voluntarily disclose her official law school transcripts to Elia Associates when she applied for the articling position.
[80] A careful review of Visic’s affidavit reveals that the only facts deposed to in relation to the s. 5(1)(a) discoverability factors is that Elia Associates must have made false statements to “others” (being prospective employers) the identity of whom she does not know (with the exception of one law firm) and that she would explore this issue at an examination for discovery. For example, at para. 193 of her affidavit, Visic states that in 2012 Elias Associates made allegations against her regarding her application for employment, without providing further particulars.
[81] During the course of oral submissions, Visic submitted that she still does not know when the specific wrongful statements following 2012 were made by Elia Associates. She started the action in 2018 because she believes that Elia Associates must have made improper disclosures about her official law school transcripts and therefore her past disability to prospective employers. She submitted that Elia Associates must have poisoned her ability to get a job and breached her privacy by revealing her past medical condition. However, in her affidavit she refers to only one 2018 email exchange with one prospective employer, Stikeman Keeley Spiegel LLP, in support of her allegation. That email exchange does not reveal whether Visic was offered employment, or if not, why she was not provided with an offer. It also does not, on the face of these emails, support Visic’s claim, at para. 39 of her affidavit, that the “prospective employers’ inquiries included whether the official transcript was used against [her]” or that this prospective employer asked any questions about her official law school transcripts or denied her employment because of any communications or interactions that they may have had with Elia Associates. There is no reference to any law school transcripts or any communications with Elia Associates. Rather, there is a reference to Visic supplying her resume and two letters of reference to this law firm.
[82] Then, at para. 44 of her affidavit, Visic admits that it is not within her knowledge how the prospective employers “would be affected by the Elia Defendants’ allegations, disclosures and statements regarding my application for employment” because, as Visic deposes at para. 45 of her affidavit, the “discovery” of the nature of the harm is “contingent on the communications with the prospective employers”.
[83] By Visic’s own admission, she still has not discovered what harms she has suffered, if any, because she has no knowledge of what, if any, communication Elia Associates has had with any of her prospective employers. In any event, Visic has not adduced evidence to raise a genuine issue requiring a trial that she has suffered harm due to the alleged false and injurious statements that are the basis of her claims, except by way of a bald allegation and unsupported belief.
[84] Again, no other prospective employers, other than Stikeman Keeley Spiegel LLP, are named by Visic in her evidence. Visic has adduced no evidence substantiating her assertion that prospective employers were in communication with Elia Associates and/or refused her employment because of any such ostensible communications.
[85] By way of further example, in her affidavit at para. 69, Visic deposes that “I believe that a limitations issue will require examination of multiple parties and non-parties witnesses. As indicated previously herein, I believe that the prospective employers will need to be examined to show that the nature of the harm was contingent on the communications with them. In addition, my understanding of the Elia Defendants’ activities and related series of events can only be retrospective”.
[86] The Visic affidavit also describes what she calls the “series of events” that underpin her claims. At para. 21, she deposes that the “series of events include: in 2012 approximately (5) years after I was given a without cause Letter of Termination, the Elia Defendants made statements relating [to] my application for employment; the LSHP’s decision was delivered on April 18, 2013; and subsequent manifestations of intangible and monetary harm in my employment circumstances, including temporary employment from Aug 2017-Sept 2018 and an interview with prospective employers when the consequences manifested in Dec 2018. The discovery of the nature of harm was contingent on communications with the prospective employers. In addition, my understanding of the Elia Defendants’ activities and the series of events can only be retrospective”. As indicated, the only December 2018 interviews that are disclosed are with Stikeman Keeley Spiegel LLP.
[87] As stated previously, Visic devotes large sections of her affidavit to the LSHP’s Reasons, and the HRTO Reasons and the trail of appellate decisions that followed. She also discusses the r. 2.1.01 reasons of Nishikawa J. from this court. When stripped of these paragraphs, there is very little in response to the statutory discovery factors listed in s. 5(1)(a)(i)-(iii) of the Limitations Act, 2002 or to otherwise displace the statutory presumption.
[88] Turning specifically to s. 5(1)(a)(iv), Visic exhausted her appeals in the HRTO and LSHP proceedings involving Elia’s various testimonies in 2016, when the Supreme Court of Canada denied her request for leave to appeal the HRTO’s decision (Visic v. Ontario (Human Rights Tribunal) et al., 2016 CanLII 74989 (S.C.C.). Elia Associates submit that this does not postpone the commencement of the limitation period to 2016 under s. 5(1)(a)(iv) since it was not an alternative means for seeking relief against Elia Associates with respect to the impugned injurious/defamatory statements made by Elia.
[89] In Beniuk v. Leamington (Municipality), 2020 ONCA 238, 150 O.R. (3d) 129, at paras. 56, 60, 63 and 74-75, respectively, the Court of Appeal made the following propositions concerning the application of the factor under s. 5(1)(a)(iv) to postpone the commencement of the two-year basic limitation period under the Limitations Act, 2002:
(a) The limitation period begins to run on the day the claim was discovered. The date of discovery is the earlier of “when (a) the person with the claim had knowledge of, or (b) a reasonable person with the abilities and in the circumstance of the person with the claim first ought to have had knowledge of, the matters referred to in s. 5(1)(a)(i) to (iv). If either of these dates is more than two years before the claim was issued, the claim is statute-barred”.
(b) In considering s. 5(1)(a)(iv), “when an action is “appropriate” will depend on the specific factual or statutory setting of each individual case, and that case law applying s. 5(1)(a)(iv) is of limited assistance because each case will turn on its own facts.”
(c) Where a claimant argues that she was justified in delaying her civil action because she was engaged in another proceeding, “[t]he fact that a plaintiff chooses to pursue an alternative process does not in itself suspend the running of the limitation period under s. 5(1)(a)(iv). Whether an alternative process will have this effect will depend on the particular factual circumstances and the evidence before the court in determining the limitations issue.”
(d) When relying on the factors under s. 5(1)(a)(i) to (iii), it “is incumbent on a party asserting that it was reasonable to pursue a claim in another forum to explain why this approach was reasonable. …Said another way, s. 5(1)(a)(iv) does not permit a party to engage in litigation in stages for the same wrong.”
[90] Visic has also not adduced evidence or otherwise supported her claim that it was reasonable for her to wait until the final judicial determination of the HRTO and LSHP proceedings in order to postpone the commencement of the limitation period under s. 5(1)(a)(iv) of the Act. In fact, Visic’s argument recognized that the causes of action raised in her civil claims are distinct from the claims before the OHRT and LSHP. It cannot be said that the civil claims were inextricably linked with the disputes before either the OHRT or LSHP or otherwise mirror images of the civil proceeding (Winmill v. Woodstock Police Services Board, 2017 ONCA 962, 138 O.R. (3d) 641, at paras. 27 and 28).
[91] Visic has not demonstrated through evidence or otherwise that having regard to her circumstances it would have been unfair to force her to commence this action sooner (Winmill, at para. 29, citing Novak v. Bond, 1999 CanLII 685 (SCC), [1999] 1 S.C.R. 808, at para. 85). This is also not a situation comparable to Brown v. Baum, 2016 ONCA 325, 397 D.L.R. (4th) 161 (referenced in Winmill), where the court held it was appropriate for the plaintiff patient to have delayed commencing her medical malpractice action to allow her surgeon the opportunity to conduct a second surgery in an effort to remediate the harm done by the first surgery. Had the outcome of the second surgery been successful, it would have avoided the need to sue and thus s. 5(1)(a)(iv) was satisfied in the circumstances of that case.
[92] Furthermore, contrary to Visic’s submissions, this case is distinguishable from Winmill. In that case the Court of Appeal held that it was justifiable for the plaintiff (an alleged victim of police brutality) to have waited until the outcome of the criminal charges of police battery against him before he commenced his civil action against those same police officers for battery and negligent investigation. The Court of Appeal held that the criminal proceeding and civil proceeding were inextricably intertwined as the civil battery claim against the police was the mirror image of the criminal assault charges against the same police and arising from the same incident. In those circumstances, the Court of Appeal held that s. 5(1)(a)(iv) operated to postpone the commencement of the limitation period for the battery claim to the (later) date triggered for the additionally pleaded negligent investigation claim.
[93] The proceedings before the HRTO and LSHP were not alternative forums in which to seek the remedy for the causes of action alleged by Visic in this lawsuit. The HRTO dealt with the discrimination and harassment complaints and dismissed them. The LSHP dealt with the issue of whether Visic should be granted a licence to practice law in Ontario under the good character requirement and could not render any remedy against Elia Associates in favour of Visic. They are not mirror images of Visic’s civil claims against the Elia Associates.
[94] There is no evidence before the court from any prospective employer to provide support for Visic’s allegations. Visic submitted that she should be permitted to pursue examinations of party and non-party witnesses, including prospective employers. However, no steps were identified to the court as having been taken by Visic, or her prior lawyer, to attempt to secure the requisite evidence from these potential witnesses.
[95] In the absence of any documentary evidence or evidence from witnesses to support Visic’s claims that Elia Associates have communicated defamatory statements to her prospective employers resulting in a loss of job opportunities, the court is left with Visic’s belief. Furthermore, there is no evidence to support Visic’s belief that the harms did not manifest until 2018 as a result of Elia Associates’ alleged misconduct.
[96] Contrary to Visic’s submissions, this is also not a case where there is an “absence of evidence” from Elia Associates (as was the case in Royal Bank of Canada v. 1643937 Ontario Inc., 2021 ONCA 98, 154 O.R. (3d) 561, at para. 38). Nor is it a case where if Visic’s evidence is believed, she has raised a genuine issue requiring a trial. There is no conflict in the evidence that needs to be resolved by resort to the fact-finding powers provided by r. 20.04(2.1) because Visic has been unable to adduce any evidence to support her position under s. 5(1)(a) of the Limitations Act, 2002 (Trotter v. Trotter, 2014 ONCA 841, 122 O.R. (3d) 625, at paras. 73-74, 78).
[97] Visic submitted during the course of oral submissions that the facts underlying all of her causes of action are the allegedly defamatory statements made by Elia Associates, and their failure to have investigated their facts before they launched a “series of events” (referenced in paragraph 86 of these Reasons) against her with respect to her official transcript at the time of her application for her employment at Elia Associates as an articling student. The Statement of claim and Reply supports this characterization of her claim.
[98] In this case there is an absence of evidence from Visic to rebut the statutory presumption in the Limitations Act, 2002 that has been established by both Elia Associates and Visic herself, who admits that the communications underlying this dispute are those made by Elia at the HRTO and LSHP hearings, and the same in nature as those statements allegedly made sometime later. Visic’s evidence of subsequent defamatory or injurious communications by Elia Associates (post 2012) is entirely speculative and unsupported by any evidence other than Visic’s belief.
[99] Visic could have summonsed one of the lawyers with whom she interviewed at Stikeman Keeley Speigel LLP, or requested an affidavit, so as to have their evidence in response to this motion. No explanation was offered as to why she did not do so.
[100] Visic has known that Elia Associates was relying on a defence that her action was barred by operation of the Limitations Act, 2002 since the delivery of the statement of defence dated January 21, 2021 when she had a lawyer. She has known that this motion was being brought, and had the motion record, since in or around February 2021. This motion was originally scheduled to be heard June 30, 2021 but was adjourned at Visic’s request to November 1, 2021. There was time for Visic to adduce the requisite evidence if it exists.
[101] Visic has vigorously engaged in a number of legal proceedings to vindicate her rights. She was exonerated by the LSHP of any intentional dishonesty in relation to Elia’ concerns regarding the official transcripts, but wholly unsuccessful before the HRTO on the merits of her discrimination and harassment claims against Elia Associates. There have been approximately 19 tribunal and court issued decisions since approximately 2006 (including the proceedings against UoW) through to 2016. As against Elia Associates specifically the respective decisions are reported at Professional Visic v. Elia Associates Corporation, 2011 HRTO 1230 and Visic v. HRTO and Elia Associates Professional Corporation, 2015 ONSC 7163.
Conclusion
[102] I have sufficient evidence before me to make the necessary findings of fact and apply the law to the facts without resorting to the fact-finding powers afforded by r. 20.04(2.1). The summary judgment motion procedure provides a proportionate, more expeditious and less expensive means than a trial would to achieve a just result.
[103] Based on the evidentiary record before me, there is no genuine issue requiring a trial with respect to establishing or rebutting the statutory presumption established by s. 5(2) by resort to the factors under s. 5(1)(a) of the Limitations Act, 2002. Visic knew of the allegedly defamatory and injurious statements made by Elia Associates (and Elia in particular) by 2012 at the latest. Accordingly, her action was commenced beyond the basic two-year limitation period set out in s. 4 of the Limitations Act, 2002.
[104] Resolution of this action, at this stage in the proceedings, reflects a proportionate resolution of this long-standing conflict, over the course of several years, between Visic and Elia Associates.
[105] As there is no genuine issue requiring a trial, the motion for summary judgment is granted, and this action is dismissed.
[106] As a result of my conclusion, I need not rule on the alternative arguments raised by Elia Associates regarding dismissing the action as an abuse of process or staying the action pending payment of the outstanding cost awards against Visic.
COSTS
[107] If the parties cannot agree on costs, then Elia Associates are to deliver their cost outline and written submissions within ten days from the release of these reasons. Visic will then have ten days from the receipt of Elia Associates’ documentation to deliver her cost outline and responding written submissions. The written submissions shall not exceed three pages double spaced from the parties. They are to be delivered to my judicial assistant via email communication.
Justice S. Vella
Released: May 20, 2022
COURT FILE NO.: CV-18-611524
DATE: 20220520
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANICA VISIC
Plaintiff
– and –
ELIA ASSOCIATES PROFESSIONAL CORPORATION ET AL.
Defendants
REASONS FOR JUDGMENT
VELLA J.
Released: May 20, 2022