Ivany v. Subotic , 2022 ONSC 3642

COURT FILE NO.: CV-15-527243

DATE: 20220704

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

GORDON IVANY, PETER SEDGE and PS FABRICATING LTD.

Plaintiffs

– and –

NENAD SUBOTIC, SVETISLAV SUBOTIC (a.k.a. STEVE SUBOTIC) and DIN’S ACCOUNTING AND CONSULTING SERVICES INC.

Defendants

Arkadi Bouchelev, for the Plaintiffs

Antonio Conte, for the Defendants

HEARD: January 10-14, 2022

Justice pollak

REASONS FOR DECISION

Overview

1The Plaintiffs Gordon Ivany (“Mr. Ivany”), Peter Sedge (“Mr. Sedge”) and PS Fabricating Ltd. (collectively, the “Plaintiffs”), claim damages for breach of contract, fiduciary obligation, fraud, fraudulent and/or negligent misrepresentation, conspiracy to commit fraud, unjust enrichment and loss of economic opportunity against the Defendants Nenad Subotic (“Nenad”) and Din’s Accounting and Consulting Services Inc. (collectively, the “Defendants”), jointly and severally.

2Mr. Ivany and Mr. Sedge, the Personal Plaintiffs, own and control the Corporate Plaintiff, PS Fabricating Ltd. (“PS Fabricating”), an Ontario Corporation.

3The Defendant, Din’s Accounting & Consulting Services Inc. (“Din’s Accounting”), is an Ontario Corporation with its registered address at 2953 Bathurst Street, Suite 101, Toronto, Ontario, M6B 3B2. Din’s Accounting provides accounting services.

4The Defendant Nenad (who has been noted in default and does not appear) was an employee of Din’s Accounting.

5The Defendant Svetislav Subotic a.k.a Steve Subotic (“Mr. Subotic”), is an accountant and owner, principal, controlling mind, director, officer and employee of Din’s Accounting. Mr. Subotic is Nenad’s father.

6The Plaintiff, Mr. Sedge, started using the Defendants’ accounting services for his personal and business income taxes.

7In 2005, Mr. Sedge introduced his business partner, the Plaintiff Mr. Ivany, to the Defendants. Mr. Ivany also started using the Defendant, Din’s Accounting services for his personal income taxes.

8In 2007, the Defendant Din’s Accounting was retained by the Plaintiffs to assist with the incorporation of PS Fabricating Ltd.

9From 2008 to 2010, the Plaintiffs and/or PS Fabricating paid to Din’s Accounting a total of $49,496.56 by three transfers of $21,596.62, $12,515.50 and $15,384.44 for the purposes of paying PS Fabricating’s corporate income taxes.

10The Personal Plaintiffs testified that they were told by the Defendants that in order to pay corporate income taxes, they had to first transfer funds to Din’s Accounting to pay income taxes to the Canada Revenue Agency (the “CRA”) on PS Fabricating’s behalf. Further, in 2008, the Plaintiffs were advised by the Defendants that they had to pay payroll deductions in respect of an employee Mr. Snelgrove in the amount of $14,083.60 to Din’s Accounting for the purpose of a subsequent transfer to the CRA on PS Fabricating’s behalf. The Plaintiffs transferred $14,083.60 to Din’s Accounting, as instructed.

Agreed Statement of Facts

11The parties have agreed to the following statement of facts:

• Din’s Accounting was incorporated on June 26, 1992.
• “DIN” stands for “David, Isidore, Nenad” – the names of Mr. Subotic three sons.
• Mr. Subotic became the General Manager of Din’s Accounting on June 26, 1992.
• Mr. Subotic became the director of Din’s Accounting on June 26, 1992.
• Mr. Subotic became the director of Din’s Accounting on April 1, 2013.
• Mr. Subotic became the President, Treasurer and Secretary of Din’s Accounting on April 1, 2003.
• Mr. Subotic was born in Serbia in November 1934.
• Mr. Subotic immigrated to Canada in 1976.
• Mr. Subotic was a lawyer in Serbia.
• Mr. Subotic took accounting and bookkeeping courses in college in Canada in the late 1970’s and opened his accounting business, preparing and filing personal and corporate tax returns, and providing tax advice, in 1979 or 1980.
• Cheques #0086, 0119, 0158, 0168, 0187, 0190, 0233, 0244, 0286 from PS Fabricating Ltd. to Din’s Accounting totalling $89,211.16 were deposited into the bank Din’s Accounting and Consulting Services Ltd.
• Din’s Accounting never filed or paid taxes on behalf of PS Fabricating Ltd.
• Mr. Philip Milman became the accountant for PS Fabricating Ltd. in 2011.
• Nenad Subotic had an email address nenad.subptic@dinsaccounting.com.
• Nenad Subotic had a Din’s Accounting Business Card.

12The agreed to facts that are bolded above are particularly relevant to this dispute.

13The Personal Plaintiffs testified in the years 2007-2008, they paid Din’s Accounting $25,631.00 in professional fees for preparation and filing of PS Fabricating’s corporate income taxes and payroll deductions in six separate payments of $5,500, $3,160, $2,100, $4,536, $5,250 and $5,085 each for a total of $89,211.16. It is important to note that these amounts were paid by the Corporate Plaintiff and not the Personal Plaintiffs.

14In late May 2013, they retained a new accountant Mr. Milman who testified that he was informed by a CRA representative that PS Fabricating had never filed or paid income or payroll taxes. The Personal Plaintiffs testified that this was the first time that they found out that PS Fabricating’s taxes had never been filed or paid by Din’s Accounting.

15The Plaintiffs’ claim is that the Defendants have conspired to defraud them and defrauded them $89,211.16. The Personal Plaintiffs did not make submissions on the basis of their entitlement to damages as shareholders of the Corporate Plaintiff.

16With respect to funds paid for as income taxes and source deductions to the CRA on PS Fabricating’s behalf, the Plaintiffs claim that the Defendants never intended to transfer such funds to the CRA. With respect of the funds paid to Din’s Accounting for professional services, the Plaintiffs claim that they were charged for services that have not been performed and that the Din’s Accounting Defendant never intended to perform.

17It is alleged in the present action that the payments were for the purpose of paying the corporate income taxes for PS Fabricating, but the Defendants submit that such is patently false, as no such taxes were ever owed on those payment dates by P.S. Fabricating, according to the financial statements produced by the Plaintiffs themselves. The Plaintiffs had losses in 2006, 2009 and 2010 and only small profits in 2007 and 2008.

Analysis

18I am of the view that the evidence in this trial supports a finding that the Defendant, Din’s Accounting, is liable to the Plaintiff PS Fabricating as it deposited the funds in its account, for damages on account of monies that were not returned to the Corporate Plaintiff and the services contracted for between the parties that were not performed. As well, the Corporate Plaintiff is entitled to damages for monies paid to Mr. Milman for his services in the amount of $16,299.46. Further, the monies deposited were not used for the purposes contracted between the parties.

19The Plaintiffs also claim that the Personal Defendants are liable as they were directly involved in the fraud on the Plaintiffs and/or making fraudulent misrepresentations to the Plaintiffs. The Plaintiffs claim that after the funds were deposited in Din’s Accounting’s bank account, they were transferred into other bank accounts controlled by either of the Personal Defendants. The evidence is that the Defendant Nenad Subotic transferred these funds. There is a default judgment against this Defendant. I find that the allegations against him and the Defendant Din’s Accounting have been proven in this trial.

20The Plaintiffs also claim that Mr. Subotic is personally liable to the Plaintiffs as the sole owner, director, officer and controlling mind of Din’s Accounting, which was Mr. Subotic’s alter ego. I do not agree that the Plaintiffs have met the burden of proof required to pierce the corporate veil. The evidence supports the fact that Din’s Accounting, a legal entity, is not the alter ego of Mr. Subotic.

21In the alternative, the Plaintiffs submit that Mr. Subotic was willfully blind and/or negligent in his dealings with the Plaintiffs, which resulted in the Plaintiffs’ losses.

22The Defendant Mr. Subotic is 79 years old and had cancer surgery in 2012 when a default judgment was obtained against Ivany Subotic. Sadly, he is not in good health. His evidence was that Din’s Accounting was started by him as a sole proprietorship in or about 1979. In 1992, he incorporated Din’s Accounting & Consulting Services Inc. for his oldest son Nenad. Mr. Subotic was always the sole shareholder. Nenad was the first Din’s Accounting director and officer. He testified that Nenad left those offices and has not worked in the business since April 2003 when Mr. Subotic became the sole officer, director and shareholder. Nenad opened his own business in the same building but in a different office (right beside Mr. Subotic) and has operated his own business separate from Din’s Accounting. Mr. Subotic testified that Nenad used Din’s Accounting’s receptionist and secretarial services. Because Nenad was his son, he gave him signing authority on Din’s Accounting’s bank account when Mr. Subotic was away. Mr. Subotic also assisted his son financially to support him and his family. He testified that he did not know of or participate in any of the alleged frauds and did not know anything about his son’s own business, except that at one point Nenad had a large judgment against him and needed assistance. I accept Mr. Subotic’s evidence on these allegations and do not find that the Plaintiffs have met their burden of proving that he conspired in the fraud.

23Mr. Subotic was certain that he met Mr. Sedge once, probably in 2002 or 2003 and almost certainly before 2005. Din’s Accounting was retained for that one year to prepare a tax return for Mr. Sedge personally. As Mr. Sedge indicated that he could not understand much of Mr. Subotic’s English, he asked to deal with Nenad Subotic. As mentioned above, Mr. Subotic’s evidence is that in 2002, Nenad was an employee of Din’s Accounting, but he left that company to start his own business in April 2003.

24Mr. Subotic’s evidence is that, except for a brief meeting in 2011, he had no interactions with the Plaintiffs since that one tax return in 2002 or 2003. He testified he knew nothing about the incorporation of PS Fabricating, or any of the loans or other monies that Nenad took from these Plaintiffs until his meeting with the Plaintiffs in 2011. The Plaintiffs met with Nenad, who brought them to Mr. Subotic’s office and asked his father for help. The Plaintiffs told Mr. Subotic that Nenad owed them money. Mr. Subotic stated that if Nenad owed them money, then Nenad would have to repay them.

25With respect to the allegation of wilful blindness, I find the facts necessary to hold Svetislav liable for wilful blindness are also not in evidence.

26Mr. Subotic’s evidence is that at no time other than the one time in 2002 did Din’s Accounting do any accounting work for any of these Plaintiffs. However, the cheques paid by the Plaintiffs were all paid to Din’s Accounting and I find that the evidence supports a conclusion that the Plaintiffs reasonably concluded that they were dealing with Din’s Accounting.

27I accept that Mr. Subotic trusted his son in 2008 and 2009 and knew nothing about the source of this money or that it had been deposited into the account of Din’s Accounting until October, 2015, when he asked his son, Nenad, what these cheques were for and why they were put through the Din’s Accounting’s account.

28After reviewing the records of Din’s Accounting and asking Nenad for an explanation about these cheques, Mr. Subotic found out that these monies were put into the bank account of Din’s Accounting by Nenad. However, although $89,211.16 was deposited into the account by Nenad, during this same period, Nenad withdrew from the same account amounts equalling $98,750, most of which were cheques signed by Nenad alone, and without the knowledge or participation of Mr. Subotic.

29In the further alternative, the Plaintiffs submit that the Defendants have been unjustly enriched at the expense of the Plaintiffs and that they have suffered a corresponding deprivation for which there is no juristic reason. I do not find that the Plaintiffs have met their burden of proof with respect to Mr. Subotic’s alleged unjust enrichment.

30Mr. Subotic testified that neither he nor Din’s Accounting ever received any benefits from the payment made by the Corporate Plaintiff to Din’s Accounting. I have already found the Defendant, Din’s Accounting, liable for damages to the Corporate Plaintiff. It is therefore not necessary to adjudicate on the unjust enrichment claim against Din’s Accounting.

31I do, however, agree that Mr. Subotic was not enriched by the 10 cheques deposited in Din’s Accounting Bank Account as I am not persuaded that he benefitted from the deposit of these cheques.

Limitation Period

Limitation Period

32Finally, the Defendants submit that this claim is barred by the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. (the “Act”). The action was commenced by Notice of Action on April 30, 2015 and the Statement of Claim was filed on May 29, 2015. It is argued that all the facts concerning the claim were known or ought to have been known by 2012 at the latest, even if they did not know the extent of damages until later.

33The Plaintiffs and the Defendants have provided the following largely consistent chronology of events, which I accept as proven in this trial:

• Late 1990’s – Mr. Sedge starts using the services of Mr. Subotic and his company, known to Mr. Sedge only as “Din’s Accounting”
• Around 2006 – Mr. Sedge introduces Mr. Ivany to Mr. Subotic and Din’s Accounting
• May 2006 – “Din’s Accounting” starts doing Mr. Ivany’s personal income taxes (see letter from “Din’s Accounting and Consulting Services I, located at 101 – 2953 Bathurst Street, Toronto” and T1 General 2005 for Gordon Ivany is prepared (Ex. 13))
• March 11, 2007 – cheque number 0177 for $856 signed by Peter Sedge provided to “Din’s Accounting” to pay for incorporation of PS Fabricating Ltd. (Ex. 5)
• April 4, 2007 - PS Fabricating Ltd. is incorporated (Ex. 4) – Nenad listed as contact person; address is 2953 Bathurst St., Suite 101 (same as address of Din’s Accounting and Consulting Services Inc. – see Ex. 7)
• March 23, 2008 – cheque 0086 for $5,500 (Ex. 19 - Tab 16 of Plaintiffs’ Book of Documents) - accounting deposit for services re PS Fabricating Ltd.
• June 13, 2008 – cheque 0019 for $3,160 (Ex. 20 - Tab 18 of Plaintiffs’ Book of Documents) - HST for PS Fabricating Ltd.
• October 13, 2008 – cheque 0158 for $2,100 (Ex. 28 - Tab 19 of Plaintiffs’ Book of Documents) - accounting fees re PS Fabricating Ltd.
• December 22, 2008 – cheque 0168 for $21,596.62 (Ex. 24 - Tab 20 of Plaintiffs’ Book of Documents) - corporate taxes for 2007 for PS Fabricating Ltd.
• April 13, 2009 – authority allowing both Mr. Subotic and Nenad to sign for Din’s Accounting and. Consulting Services Inc. is executed (Ex. 57)
• April 14, 2009 – cheque 0186 for $12,515.50 (Ex. 25 - Tab 23 of Plaintiffs’ Book of Documents) - 2008 corporate taxes for PS Fabricating Ltd.
• April 14, 2009 – cheque 0187 for $4,536.00 (Ex. 21 - Tab 22 of Plaintiffs’ Book of Documents) - service fees re PS Fabricating Ltd.
• May 5, 2009 – cheque 0190 for $14,083.60 (Ex. 27 - Tab 24 of Plaintiffs’ Book of Documents) - for payroll taxes for Mike Snelgrove (employee of PS Fabricating Ltd.)
• February 4, 2010 – cheque 0233 for $5,250.00 (Ex. 22 - Tab 26 of Plaintiffs’ Book of Documents) – services re PS Fabricating Ltd.
• April 21, 2010 – cheque 0244 for $15,384.44 (Ex. 26 - Tab 28 of Plaintiffs’ Book of Documents) - Federal, Provincial and GST tax for PS Fabricating Ltd.
• January 4, 2011 – cheque 0286 - $5,085.00 (Ex. 23 - Tab 36 (bottom of page 2) of Plaintiffs’ Book of Documents) – services re PS Fabricating Ltd.
• February 2011 – meeting with Mr. Subotic and Nenad during which Plaintiffs are told that the loans they had previously advanced are gone; Plaintiffs stay with Din’s Accounting for several more months as they are assured that money would be paid back
• April 8, 2011 – letter from “Nenad Subotic, Din’s Accounting and Consulting Services” with attached T1 General 2010 for Gordon Ivany; this is the last time the Plaintiffs use Din’s Accounting for personal or corporate income taxes
• Fall 2011 – Plaintiffs hire Mr. Milman to be their new accountant for corporate and personal income taxes
• November 2011 – Mr. Milman correspondence with Nenad Subotic at “Din’s Accounting” regarding PS Fabricating Ltd.
• December 7, 2011 – Mr. Milman receives documents pertaining to the PS Fabricating Ltd. file, which are couriered from “Din’s Accounting”
• March 2012 – Mr. Milman files corporate taxes for PS Fabricating Ltd. for the year 2011
• Second half of 2012 – Mr. Milman start to investigate inconsistencies in filings for previous years; sends amended tax filings for 2007-2010
• Late May or June of 2013 – Mr. Milman receives phone call from the CRA to advise that the amended filings were rejected because there were no original filings for the years 2007-2010; Mr. Milman calls clients, who are shocked by the revelation
• June 27, 2013 – 2007-2010 taxes are filed by Mr. Milman; invoice for $16,299.46 is issued

34The Defendants also provided the following additional chronology, which the court accepts have been proven:

• March 2008 to January 2011 – Ivany/Ex. 19-23, 28 various cheques totaling $25,631 for accounting work payable to Din’s Accounting
• November 12 to 30, 2010, Sedge/Ex. 48 email from Nenad to Mr. Sedge enclosing personal and corporate tax returns from 2001 to 2009 and discussing the need for Notices of Assessment by Mr. Bouchelev
• February 10, 2011, Mr. Ivany/Mr. Sedge/Mr. Subotic meeting with Nenad alone to discuss personal taxes. Nenad tells them their investments are gone and they ask for Steve to come in, but not to talk about taxes. Breakdown of relationship. Plaintiffs no longer trust Din’s Accounting.
• Fall of 2011, Sedge/Ex. 49 Mr. Ivany & Mr. Sedge hire Mr. Milman to replace Nenad
• December 7, 2011, Milman/Ex.31 Nenad couriers to Mr. Milman a box of documents re PS Fabricating Ltd.
• December 19, 2011, Sedge/Ex. 50 emails between Nenad and Mr. Milman attaching five financial statements of P. S Fabricating Ltd. for years 2006-2009, and those statements.
• 2012, Mr. Milman notices irregularities in what Nenad sent him, talks to clients and decision made to do amended financial statements, which he does and files in 2012.
• May 2013, Mr. Milman receives a call from someone at CRA saying tax returns were never filed and so he could not file revised statements. He then changes the ones he prepared from amended returns to first returns and files them.
• April 30, 2015, trial record Notice of Action issued (N.B. Rule 14.02-14.03 states that an action can only be started by a Notice of Action if there is insufficient time to prepare a statement of claim. The Plaintiffs had more than two years knowing all the facts, so a Notice of Action was not appropriate.) I do not accept this submission.
• May 29, 2015, trial record statement of claim prepared.

The Law

The Law

35Section 4 of the Act states that no proceeding shall be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

36Subsection 5(1) of the Act sets out when a claim is discovered:

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)

37Subsection 5(2) provides that the presumed date of discovery of a claim is the date on which the act or omission on which the claim is based took place, unless the Plaintiff proves the contrary. To rebut this presumption, the Plaintiff must establish that the claim was not discovered until some other date, based on all four criteria set out in subsection 5(1)(a).

38Although there is an obligation on the Plaintiff to rebut the presumption of discoverability, it has been held to be a very low threshold.

39In Peppers v. Zellers Inc (Zellers Pharmacy) (2006), 83 O.R. (3d) 648 (C.A.), 2006 CanLII 42355, at para. 16, the Ontario Court of Appeal summarized discoverability as “a principle that provides that 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.”

40Section 5(1)(b) of the Act requires an objective and subjective analysis by referring to the “reasonable person with the abilities and in the circumstances of the person with the claim”.

41There is an onus on the Plaintiff to provide evidence that it behaved as a reasonable person would in similar circumstances. The Court must consider the abilities and circumstances of the Plaintiff and whether a person in the same or similar circumstances would have been alerted to all of the elements of the claim.

42The Defendants submit that the dates of the deposited cheques either coming into the Din’s Accounting account or coming out are relevant, unless the Plaintiffs prove a later date when they first discovered all the facts necessary to allow them to know that it was appropriate to commence an action.

43The evidence of Mr. Milman is that he realized that there were problems with the tax returns that Nenad had prepared in 2012 and prepared revised returns. It is submitted that he should have known that there were problems when he got a 2006 financial statement for a company that had not been incorporated until April 2007. He admitted in evidence that if he had looked, this would have been a red flag. I do not accept that a reasonable person in similar circumstances would have acted differently to suspect or conclude that legal action would have been appropriate.

44The following are the potential dates which the Defendants submit are appropriate for the commencement of the running of the limitation period:

• February 10, 2011, when the relationship breaks down and they no longer trust Nenad or Din’s Accounting. I do not find that the Plaintiffs had the information required to reasonably conclude that they had all of the facts necessary to know that it was appropriate to commence legal action.
• December 7, 2011, when the records are sent to Mr. Milman by Nenad. I do not find that the Plaintiffs had the information required to reasonably conclude that they had all of the facts necessary to know that it was appropriate to commence legal action.
• December 19, 2011, when the financial statements of PS Fabricacting Ltd. are sent to Mr. Milman by Nenad. It is alleged that if Mr. Milman had looked at these, the 2006 financial statement would have been a red flag that something was wrong since the corporation had not been incorporated until April 4, 2007. I do not find that the Plaintiffs had the information required to reasonably conclude that they had all of the facts necessary to know that it was appropriate to commence legal action.
• 2012 when Mr. Milman looked at what Nenad had provided, called his clients and they decided that amended returns for all years would be done. I do not find that the Plaintiffs had the information required to reasonably conclude that they had all of the facts necessary to know that it was appropriate to commence legal action.
• 2012 when Mr. Milman filed the amended tax returns. I do not find that the Plaintiffs had the information required to reasonably conclude that they had all of the facts necessary to know that it was appropriate to commence legal action.
• May 29, 2013, the date the call comes in from CRA advising no returns had ever been filed. I do not find that the Plaintiffs had the information required to reasonably conclude that they had all of the facts necessary to know that it was appropriate to commence legal action.

45Although the Plaintiffs did not make submissions on the date they claim legal action was appropriate, I find that it is reasonable to conclude that it would have taken the Plaintiffs at least one month to arrive at that conclusion. I do not accept that prior to such time, the Personal Plaintiffs had the knowledge to arrive at that conclusion.

46As noted, I find that, on the basis of the evidence on the above noted dates, the Plaintiffs did not have the information required to know that legal action was required.

47Finally, although the Plaintiffs claimed that the circumstances surrounding the Defendants’ actions, as pleaded above, entitle them to receive aggravated and punitive damages to compensate them over and above the general and special damages to which they are entitled, no submissions were made on this claim and I award no such damages.

48To conclude, I award damages in the amount of Cheques #0086, 0119, 0158, 0168, 0187, 0190, 0233, 0244, 0286 from PS Fabricating Ltd. to Din’s Accounting totalling $89,211.16, plus the $16,299.46 paid to Mr. Milman for this invoice, as well as pre- and post-judgment interest in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43 to the Corporate Plaintiff.

Costs

Costs

49As the successful party, the Corporate Plaintiff is entitled to an award of costs payable by the unsuccessful party, Din’s Accounting. The Personal Defendant Mr. Subotic has also been successful in this litigation as no liability has been found against him.

50When I consider all of the factors set out in the Rules and Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), 2004 CanLII 14579, in light of the mixed results, I find that the most equitable result in this case is that all parties shall bear their own costs. It is so ordered.

Pollak J.