COURT FILE NO.: CV-19-00631498-0000

DATE: 20221021

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MARK MUNDELL and 1441220 ONTARIO LTD.

Plaintiffs

• and –

CHAKKA WHITE aka CHAKKA C.N. WHITE aka CHAKKA WHITE BARRISTER AND SOLICITOR aka CHAKKA N. WHITE PN aka CN WHITE LAW CHAMBERS

Defendants

Frederick Simon Hawa for the Plaintiffs

Michael Kestenberg for the Defendant

HEARD: October 3, 2022

PERELL, J.

REASONS FOR DECISION

A. Introduction and Overview

[1] The immediate case is one in which the court is obliged to enforce the Limitations Act, 2002.[^1] Before me is a summary judgment motion brought by the Defendant Chakka White and her professional liability insurer to have a negligence action against her dismissed as statute-barred.

[2] By way of overview, a decade ago, in 2011, Mr. Mundell retained Ms. White to commence an action with respect to an allegedly fraudulent commercial transaction. Between 2011-2016, Ms. White, who sadly was suffering from mental illness and other health and personal problems, covered up that she had done next to nothing to advance the action. By 2016, Mr. Mundell knew that something was seriously amiss. He knew his legal fees paid to Ms. White had been wasted. He knew that the delay in Ms. White pursuing and enforcing a judgment in the action for which she had been retained had caused him harm in recovering what he had lost in the fraudulent commercial transaction. In 2016, Mr. Mundell retained new counsel, and by the summer of 2016, Mr. Mundell’s fears that something was wrong were confirmed. What Mr. Mundell did not know was that Ms. White’s professional negligence was worse than he suspected. Ms. White had allowed Mr. Mundell’s action to be administratively dismissed pursuant to Rule 48 of the Rules of Civil Procedure. The 2011 action was useless. In 2018-2019, Mr. Mundell pursued regulatory proceedings against Ms. White at the Law Society of Ontario. On this summary judgment motion, Mr. Mundell submits that his lodging of a complaint with the Law Society made it appropriate for him to not immediately sue Ms. White. It was not until December 18, 2019, that Mr. Mundell and his corporation 1441220 Ontario Ltd. sued Ms. White for professional negligence.

[3] Unfortunately, as I shall explain in more detail below, by the time Mr. Mundell issued his Notice of Action in the autumn of 2019, the limitation period to sue Ms. White had run its course, and his action against her came too late. The limitation period to sue Ms. White had begun to run in the summer of 2016. Discipline proceedings do not suspend the running of limitation periods for solicitor’s negligence claims. For the reasons that follow, the Plaintiffs’ action against Ms. White is dismissed as statute-barred.

B. Facts

[4] Ms. White was called to the bar in 2007. She practised as a sole practitioner.

[5] On July 26, 2011, Mr. Mundell, who is a businessman, and his corporation, 1441220 Ontario Ltd., retained Ms. White to sue a corporation, a Christopher Tomes, and two others with respect to a share purchase of an audio/video business. Mr. Mundell believed that the transaction was a fraud perpetrated on him and on other investors.

[6] On August 18, 2011, Ms. White had a Statement of Claim issued (Court File No. CV-11-433160). The defendants were Christopher Tomes, John F. Spratley, who is a lawyer, Suzanne Spratley, and Creative Media Sciences Ltd. The action was for monies owed under a share purchase agreement, unpaid wages, and damages for breach of fiduciary duty. Mr. Mundell claimed $227,500 plus interest and costs.

[7] In the summer of 2011, there is evidence that John F. Spratley and Creative Media Sciences Ltd. were served with the Statement of Claim. There is evidence upon which service would be deemed to have been made against Mr. Tomes. There is no evidence that Ms. Spratley was ever served. No Intent to Defend or Statements of Defence were delivered. No steps were taken to note the Defendants in default or to seek a default judgment.

[8] On February 16, 2012, the Court sent a Notice to Ms. White that Mr. Mundell’s action will be dismissed pursuant to Rule 48 of the Rules of Civil Procedure (Form 48E). Ms. White did not do anything to forestall an administrative dismissal of Mr. Mundell’s action, and on April 11, 2012, the action against Mr. Tomes and the others was dismissed as abandoned. No steps have ever been taken to have the administrative dismissal set aside.

[9] Pausing here in the narrative, although in 2012 Mr. Mundell would not have been aware of it, there are already facts upon which it is more than plausible to infer that Ms. White was negligent in carrying out her retainer. It appears that she did not properly serve all the defendants. It appears that she did not properly note the defendants in default. It appears that she did not appropriately respond to the Form 48 notice by noting the defendants in default or by moving to have the administrative dismissal set aside. It appears that she was not following instructions. It appears that she was not honestly reporting to her client the status of the action. Although Mr. Mundell would not have been aware of it, he had a negligence claim against Ms. White in 2012 and a claim for return of his wasted legal fees.

[10] Returning to the narrative, while Mr. Mundell was not aware of Ms. White’s dilatory and delinquent handling of the retainer, he was unhappy, and he was asking questions. From 2011 until the summer of 2016, Mr. Mundell inquired about the status of the action against Mr. Tomes and the others. Mr. Mundell complained about the lack of results. In response to Mr. Mundell’s inquiries, Ms. White lied. She said that a default judgment had been obtained. She said that she would enforce the judgment. She provided excuses for the delay in enforcing the non-existent judgment. She told Mr. Mundell that she had personal safety issues since she was being harassed by a stalker. She said that she had been in a motor vehicle accident. She said that she had a heart condition, stress, medical emergencies, and that she had moved seven times in 14 months. These stories were her explanations for the delay in enforcing the judgment against Mr. Tomes. Meanwhile, she requested payment for her services, and Mr. Mundell paid her $17,311.31.

[11] Meanwhile in April 2016, a different client of Ms. White’s complained to the Law Society about Ms. White’s services as a lawyer. The Law Society opened a regulatory file, because the complaint raised a concern that Ms. White did not have the capacity to practise law due to mental illness.

[12] On May 30, 2016, Mr. Mundell sent the following email message to Ms. White airing his grievances in how she was handling the action against Ms. Tomes.

Subject: What are you doing???????? .. nothing??? another 6 weeks have passed??

Chakka, I'm sorry, but you continue to demonstrate and prove that you and you're your legal services are consistently unreliable and ineffective to my cause. Unfortunate (and frustrating) for me in that you continue to never follow through on any of your written claims and correspondence (including abiding by the terms of your contract), your proposed follow ups and delivery of documentation (i.e., the “order” we've been waiting on since March 2015, my multiple(4+) requests for invoice copies, other file documentation you've promised in multiple emails), and for that matter any evident and verifiable progress the last year or two with my small case which is now about to exceed 5 years and counting with yet no end in sight.

In your email of Mon April 18th (yet another 6 weeks ago) you claimed 'I will be taking a look at your file and the notes from the clerk in the next week and will contact you with an update as to the status of your file and to address any concerns that you may have. I look forward to resolving your matter and assisting you in recouping those funds from Mr. Tomes as quickly as allowed. Again, as usual, I have not heard from you for an extended period, and without me chasing you, as you appease me. When are you ever going to engage/act on/follow through on and make any progress on my case which has been stalled for over a year now, and is dragging on way too long, apparently due to your continual personal troubles and crises, not Chris Tomes frequent moving as when I originally questioned your pace you originally claimed was the cause of previous delays. Chris Tomes has been in Ottawa since May 2015 (2 full years now) and I fear your incessant personal problems, & legal process mistakes and delays (always by others and out of your control) are giving him the window to skirt us again, especially with May his likely lease anniversary.

[13] Finally, in the summer of 2016, Mr. Mundell could not abide the delays and the excuses any longer. On June 7, 2016, he emailed, Brad Sellors, a business acquaintance, seeking a reference for another lawyer. Mr. Mundell wanted an opinion about Ms. White’s “gross mishandling of my civil lawsuit.” The email message to Mr. Sellors stated:

[…] As discussed, I’m hoping you can reciprocate by having your lawyer provide an opinion on my lawyer’s conduct and actions (or lack thereof) for the last 5 years while grossly mishandling my civil lawsuit, I launched July 2011. The lawsuit is in pursuit of $50k […] I thought I was investing in shares (30% ownership) of a legitimate AV company then owned by Chris B. Tomes, […] If you or your lawyer review the three snippets/examples of the correspondence between [Ms. White] and I you can see the struggles I have endured just trying to get her to follow through on any promises follow ups, actions and results. I am strongly suspecting Chakka was/has been paid off by Chris B. Tomes and his share-issuing lawyer John Spratley […] I am looking for advice on continuing to work with this lawyer (I would rather not – I don’t trust she is doing anything), or what maybe my best recourse for action here? Do I sue her for my $17+k I’ve invested with her the last 5 years, as well as the claim of my initial $50k (I think she was going after $80-$90k in total from Tomes/Spratley.) As you can see by her conduct she is way out of line with her Terms and Conditions of her contract. Also, she has delayed me to the point whereby she has given Tomes time/the window of opportunity to move again. […] and I would not be surprised if he has just moved again in an to attempt to allude me […]

[14] On July 8, 2016, Ms. White sent an email message to Mr. Mundell. She said that she was unable to finalize his file and that she would have it transferred to another lawyer at no charge if she was not able to promptly finalize the matter. The email message stated:

Mark, As I sure you are aware at this time, I have been an ongoing victim of crime. I have an obsessed stalker that the police seem to have little interest nor skill in being able to address. Due to the stress of the situation, I have had to take time off, not only to deal with the constant safety issue, but also because I suffer from a heart condition which is exacerbated by stress. I am now moving for the 7th time in 14 months. I am extremely sorry this situation has affected my ability to deal with your current matter. I am in the process of reviewing and finalizing all files and will be contacting you to finalize your matter. If I am not able to finalize your file, I will have it transferred to another lawyer at no further charge to you.! I will not be back in the office until the end of the month. Once I have confirmed the date I will contact you in order to schedule a meeting so we can finally deal with your matter. C.N.

[15] There was no quick resolution and no transfer, however, was arranged after Ms. White’s email message. The email message from Ms. White may have encouraged Mr. Mundell in his efforts to get an opinion about Ms. White’s services, and on August 26, 2016, Mr. Mundell sent a follow up email to Mr. Sellors and asked: “It’s been a while…any advice? Sue her for non-performance?”

[16] On August 30, 2016, Mr. Sellors referred Mr. Mundell to Clinton Brown for legal assistance, and Mr. Mundell sent the following email message to Mr. Brown, a recently called lawyer, who was not a civil litigator:

[…] A conversation/professional legal opinion would be appreciated as I am getting nowhere […] with my lawyer the last 3 years towards moving this case passed the default judgment [that] I got 3-4 years ago and onto enforcement. She is forever sending sporadic irregular emails with claims she never follows through on, set up calls she never makes (and never cancels), just leaves me hanging, and as you can see has a trunk full of crazy excuses for her absenteeism and non-responsiveness. I need to know what my options are, as I suspect she is going to be useless at helping me with the enforcement of the court order to pin this crook down (Chris Tomes) [who] is apparently still residing/renting in a fancy neighbourhood in Ottawa. […]

[17] On September 12, 2016, Mr. Mundell retained Mr. Brown. Mr. Mundell discussed with Mr. Brown “going after” Ms. White for the $17,000 already paid in legal fees, and he discussed whether Ms. White was insured for such claims. Mr. Brown told Mr. Mundell that he was not a litigation lawyer and that he could not advise him as to whether or not there was a negligence claim against Ms. White. Mr. Brown suggested a complaint to the Law Society. Mr. Brown undertook to gather facts to investigate the matter of what Ms. White was doing with Mr. Mundell’s action.

[18] In November 2016, Mr. Brown attempted to retrieve and review the Court file in the action against Mr. Tomes and others. Mr. Brown sought Ms. White’s co-operation in obtaining the file. Mr. Mundell asked her to send him her file, but his request was not acknowledged.

[19] On December 20, 2016, Mr. Mundell sent the following email message to Mr. Brown:

[…] See excerpts below from March & Nov. 2015 emails to/from CN White and the mentioning of my elusive file to come from process server, after she made me pay $2,000 in Feb 2015 to handle the enforcement phase after the (default?) judgment came … near the end of 2014. […] She made me pay for enforcement and has done nothing to enforce the order. She has been the delay if it has gone beyond 2 years, not my fault as any court would see by all my chasing the emails since the judgment timeframe end of 2014. […]

[20] On January 3, 2017, Mr. Brown sent Mr. Mundell an invoice for the work in progress.

[21] On January 7, 2017, Mr. Mundell sent a message to Mr. Brown about paying Mr. Brown’s account and about exploring his options with respect to Ms. White. The email message stated.

Hi Clinton, […] once you receive a copy of my file […] I will look forward to exploring my options with you on:

• recouping my $50k investment (although Chakka was going after a larger amount than that $60-$90k if I remember correctly) a la Chris Tomes and his co-accomplice lawyer John Spratley

• recouping the $17,311.31 […] I have spent with Chakka since my first $1,667.56 installment with her on Aug 22, 2011. […]

[22] Mr. Brown immediately replied on January 7, 2017 with the following email message:

Hello Mark, […] I did not hear back from the Superior Court this week re: the file but will follow up Monday to see where things are at. I assume with the holidays they may be a few days catching up. Once we have the file, we can assess what your options are. If there is a judgment in your favor and it hasn’t been two years since (you have 2 years to enforce a judgment in your favor from when it is issued), we can proceed with enforcing whatever the judgment amount is. If there is no judgment (or your period for enforcing one has expired) and it is due to the fault of Ms. White (possibly in collusion with others) then you can pursue an action for malpractice against her (and possibly the others) for the total damages. The statute of limitations would reset to when you knew (or should have known) she didn’t do what she said she did (i.e., getting the judgment in your favor as she indicated she had). It is arguable that the time is now, or at least within the last year, so you are within the limitation period. It may be possible to get a judge to grant enforcement of the judgment if it has expired, but it would go back to establishing Ms. White’s actions (and possibly the others) as being the cause. Regardless, we will have a clear path forward once we see the file.

[23] On January 27, 2017, Mr. Mundell sent Mr. Brown the following email message:

Hi CB, hope you are well and making progress. […] I look forward to connecting again soon as to how you are making out with evaluating our next steps to getting at least my $50K back and ideally the $17k in wasted legal fees with Chakka N. White LLB.

[24] On January 30, 2017, Mr. Brown sent Mr. Mundell an email message advising that he was still waiting for the file from the court office. The file had been requisitioned from storage, but processing had been slow over the 2016 Christmas holiday break.

[25] In March 2017, Mr. Mundell and Mr. Brown discussed how a ruling from the Law Society might positively influence a solicitor’s negligence action against Ms. White. On March 2, 2017, Mr. Brown received a copy of the court file. There was no default judgment in the file or indication that Mr. Mundell’s action had been administratively dismissed. Mr. Brown sent Mr. Mundell the following email message:

Mark, I was able to obtain a copy of the file from the court today, although it was very sparse. Are you available to speak tomorrow afternoon or over the weekend? Please let me know what works best for you. […]

[26] Around March 24, 2017, Ms. White wrote – but did not send - a letter enclosing Mr. Mundell’s file. I foreshadow to note that the letter and the scanty file was sent in September 2017, as noted below.

[27] Also on March 24, 2017, Mr. Mundell sent the following email message to Mr. Brown about possibly moving the matter forward by retaining a civil litigation lawyer:

Hi Clinton, time is marching on here, and my plan is to have all emails between Chakka White and I between July 2011-2016 amassed in sequence by this time next week. … Have you any progress in clearly identifying what my best move is? or in identifying an honest, competent malpractice lawyer that you and I can trust to see this through legitimately?

[28] On March 27, 2017, Mr. Brown sent the following email message to Mr. Mundell reporting on his efforts to find a litigation lawyer and discussing filing a complaint with the Law Society:

Hi Mark. Glad to hear you are compiling all of your correspondence on this file. I have not been able to get a recommendation on a lawyer that could represent you on the client side of a complaint. However, I believe you would have the greatest chance of success with an action against a lawyer if there was a negative ruling against them from the Law Society of Upper Canada (LSUC) – the finding of the LSUC would give you an indication of what a court may say in an action against the lawyer and might be used as evidence. For more information on how to file a complaint against a lawyer with the LSUC: http://www.lsuc.on.ca/with.aspxid=644 For your records, attached is a copy of your court record, […]

[29] On March 30, 2017, Mr. Mundell sent the following email message to Mr. Brown:

Hi Clinton, thank you for this update and information. […] I was a little heated last time we spoke when you confirmed my suspicions that I was being taken by C.N. White for the last few years. As such I regret that I did not take any notes, and I am still a little unclear past the attached court records documentation as to what you see as has transpired since Chaka’s ill-intended initial efforts and the paper trail attached from the 2011-2012 era, and where and when she started to deceive and “expropriate” me and what I should be clear on in my valid complaint to the LSUC upon submitting the necessary paperwork. I don’t want to stumble or sell myself short on possible compensation with this last effort to go after Chaka. Would you be able to bullet a few points for me and/or have a quick 5-10 minute call … to identify most relevant facts and details I should include before I submit my complaint next week? Thanks Clinton and know that I can pay you for this summation/recommendation next steps before I proceed with LSUC and before seeking out an honest, fair malpractice lawyer to ensure I get duly reimbursed and compensated for appropriate damages.

[30] On April 6, 2017, Mr. Brown sent Mr. Mundell a Law Society Complaint Form with recommendations on how to complete it. Mr. Brown wrote: “While I am not a malpractice lawyer and cannot advise you on this aspect, I would think that action taken against a lawyer by the LSUC would strengthen one’s position in a malpractice action against the lawyer”.

[31] On April 7, 2017, Mr. Mundell sent the following email message to Mr. Brown:

Hi Clinton, thanks for this update and direction. I understand below but need clarification on what you refer to as on record? I see in your previous court file attachments her submission of complaint to the courts re Tomes […] but did not see where (or when) I was granted a win by “default judgment” as she had me believe we won “end of 2014’? After which she made me pay $2,000 in March 2015 to proceed with “enforcement,” which she never followed through with now for 2+ years? […] I will fill in the form and have you look at it, but I need to know where is the point where she stopped working for me? I suspect 2013-2014 when she stopped talking about going after Spratley […] and started delaying me with lots of excuses […]

[32] In response to Mr. Mundell’s April 7, 2017 email message, Mr. Brown offered to review, Mr. Mundell’s Law Society complaint, but this offer was not taken up for seven months.

[33] Meanwhile, in the regulatory proceedings already initiated by the Law Society, on May 11, 2017, the Law Society obtained an order suspending Ms. White’s licence to practise law.

[34] April 2017 to September 2017 passed by, and, as foreshadowed above, on September 13, 2017, Mr. Mundell received Ms. White’s letter of March 24, 2017 enclosing her file. The documentation of the action against Mr. Tomes was scanty and incomplete, and the file provided little information about her handling of Mr. Mundell’s litigation against Mr. Tomes. The March 24, 2017 letter stated:

Please see enclosed documents which are being returned to you. As you may be aware Ms. White has been victim of a stalker since 2008. In 2014, he and his friends/business associates began to terrorize and torment her on a daily basis. They broke into her house putting feces in her documents and bed. They stole her identity hacking into her cellular phone and email accounts, rerouted her mail, electrocuted her and hit her with a car. […] Due to the electrocution and ongoing stress of being stalked and terrorized daily, what were previously two relatively common and not serious heart conditions, she developed a more serious issue. […] All your original file documents are being returned to you as you may wish to proceed with alternate counsel as Ms. White is only in the office one day a week due to her health issues and issues relating to the stalking, predominately relating to her health, but also due to concerns regarding her safety and well being. […] Ms. White sends her deepest apologies. Though the stalking and subsequent heart issues were clearly beyond her control, she apologizes for any inconvenience that this may have caused you. She […] will ensure that you are not prejudiced before the courts due to this matter and will provide you an affidavit for you should you require one for your matter. Please note that Ms. White will not be available to appear at any court dates. Should you choose to remain to be represented by Ms. White all appearances will have to take place by telephone or video. We thank you for your understanding during what was obviously been a difficult time for Ms. White. She will contact you directly to answer any questions or concerns once the office has been moved. Sincerely, CNW Law

[35] Two more months passed by, and on December 1, 2017, Mr. Mundell sent Mr. Brown the following email message addressing the matters of moving forward on the Law Society complaint and of retaining a civil litigation lawyer to sue Ms. White:

Hi Clinton, while now 7 months later, I’m hoping you can as offered [in April 2017] review the attached complaint form and 3 other related attachments as a final step before I submit my complaint & and these docs re Chaka White to the LS of Upper Canada. I have a malpractice lawyer – Navid Ghahraei of Pazuki Law Group Richmond Hill – potentially interested in acting on my behalf after you review the attached docs and make any suggestions that may help my/our case given your knowledge of Chakka’s actions and my case/claim that never came to fruition.

[36] On December 8, 2017, Mr. Mundell emailed Mr. Brown the file from Ms. White and wrote: “I think/hope you and the malpractice lawyer will be able to clearly identify where legally Chakka dropped the ball and the LSUC will recognize and consider that.”

[37] On December 13, 2017, Mr. Brown sent Mr. Mundell the following email message:

Hello Mark, I think that what you have entered into the complaint form is a good start - it will be particularly beneficial for you to walk through the history with your malpractice lawyer to refine the timeline of events pre-September 2016. For my part, here is my history on the file: […]

[38] On January 16, 2018, Mr. Mundell forwarded the material he had gathered from Mr. Brown to Mr. Ghahraei.

[39] Mr. Mundell and Mr. Ghahraei met on January 18, 2018. At the meeting, Mr. Ghahraei advised Mr. Mundell that he might have a professional negligence claim against Ms. White. However, because of other commitments, Mr. Ghahraei declined being retained. On February 1, 2018, Mr. Ghahraei sent an email message to Mr. Mundell that stated: “While it appears that you do have a malpractice claim, unfortunately this is not something I can assist with at this time”.

[40] Mr. Mundell did not submit his Complaint Form to the Law Society, but in March 2018, Mr. Mundell spoke to Sandy Melo of the Law Society’s Regulatory Compliance Department with respect to the Law Society’s Compensation Fund, and on March 16, 2018, Ms. Melo sent Mr. Mundell the following email message:

Please send your inquiry to the Compensation Fund and include the following information. The name of the Lawyer/Paralegal your claim is against. The amount of monies you are seeking from the Compensation Fund. A brief summary of the claim. Please note that information about the Compensation Fund can also be found on our website […]

[41] On April 10, 2018, Mr. Mundell wrote the Law Society’s Compensation Fund. Mr. Mundell sought advice as to whether he had the “makings of a successful malpractice case against White” for her “detrimental action to/handling of my civil case”. He sought $160,000 in compensation from the Fund. The same day, he sent the following email to Ms. Melo:

[…] As I expressed to you on the phone when we spoke a few weeks ago, I am not certain if, as I have been informed by a couple of lawyers that, I may have a malpractice case against suspended Toronto lawyer Chakka White, or if my only recourse for retribution is through the LSUC Compensation Fund, from which I am uncertain what sort of monies I should be seeking. […]

[42] On June 7, 2018, Mr. Mundell submitted the Complaint Form to the Law Society. Mr. Mundell sent the following email message to Ms. Melo:

To Whom it may concern at Complaint Services, the Law Society of Ontario

My name is Mark Mundell, and having recently received a letter from Michael Elliott of your Compensation Fund in response to my inquiry below, […] I am now following up at Michael’s suggestion in an attempt to receive your input on my suggested next/remaining steps I may have to take to seek retribution on a failed attempt for a successful outcome on a civil case (outlined in the attachments and email below) undertaken very haphazardly and unprofessionally by currently suspended Toronto lawyer Chakka N. White. If you examine the attached supporting documentation I had originally provided the Compensation Fund and now you, I would hope you find as I suspect and experienced that my case was blatantly mishandled […]

Note that prior to submitting my original inquiry at the suggestion of S. Mello, I solicited the opinion of two Toronto lawyers at the end of 2017 […] and both suggested, in writing, that I likely have a case for a malpractice suit. Please let me know if I may seek and receive your feedback and direction on my situation via the information and communications forwarded below between Chakka White and I July 2011 through September 2017, when her office unexpectedly returned my scant file in the mail after 6+ years with little more than copies of the case-related documentation I had provided her in 2011, and with no Default Judgment as she claimed she was seeking and suggested that she had in her latter-year communications, and charged me for, as well as charging me for enforcement which she nor her office ever followed through on after charging for that service. I look forward to a response and any direction you may be able to provide me prior to soliciting any more legal action which I did not expect nor desire to take.

[43] In the Complaint Form, Mr. Mundell described his complaint as follows:

As can be gleaned from included email correspondence between Chakka White and myself 2011-2017, numerous complaints include:

• Failure to enforce “Default Decision” apparently obtained from the courts late 2014/early 2015, even though she charged me $2,500 for lien and enforcement services November 19, 2013. Failure to confirm with me any Default Decision date nor any documentation related to that milestone so I could, with her paid for enforcement assistance, or though assistance from another lawyer, take action to enforce the Default decision within the 2 year statute of limitations.

• General failure of professional service – as evident throughout the email correspondence supplied, she constantly set up or agreed to a case-related updated phone call on many a date at a set time, yet without warning, she repeatedly did not make/initiate or follow through with said calls. Often her multiple and varied explanations re her absence (stalker, hit by car, medical emergencies, etc. etc.) came via email many days or even weeks after the agreed upon call that she missed.

• As evident in email correspondence, failure to provide documentation requested multiple times (i.e., receipts of payment) and failure to provide case-specific documents she claimed she would send me on many multiple occasions as evident in her emails. As also documented in her/our emails, she had me on many occasions for some services (disbursements) by cash, claiming that is how the legal process worked.

[44] On the complaint form, Mr. Mundell indicated that he hoped the following would happen as a result of his complaint:

Due to multiple failures of delivery of paid for legal services, impeding any ability to enforce Default Judgment and attain financial damages in Statement of Claim, now acting to sue C.N. White for losses due to lack of professional legal services.

[45] Meanwhile, in the already existing regulatory proceedings, on June 7, 2018, the Law Society commenced a capacity application with respect to Ms. White. It sought a determination that she was incapacitated within the meaning of s. 37 of the Law Society Act.[^2]

[46] On June 26, 2018, Mr. Mundell wrote the Law Society asking for a reply to his letter of June 7, 2018.

[47] On July 6, 2018, Mr. Mundell wrote the Law Society again asking for a response.

[48] On July 25, 2018, Mr. Mundell wrote the Law Society asking for a response to his messages of June 7, 2018, June 26, 2018, and July 6, 2018.

[49] On November 2, 2018, the Law Society responded and provided Mr. Mundell with a link to the Law Society Tribunal website. The letter from the Law Society stated: “You can enter the name of the subject (lawyer/paralegal) in the search window, and you will receive information regarding any hearings that the subject is involved in.”

[50] On November 6, 2019, the Law Society Tribunal Hearing Division ordered a psychiatric assessment of Ms. White.[^3]

[51] In November 2019, Mr. Mundell retained Frederick Hawa for a legal opinion with respect to a negligence action against Ms. White.

[52] On November 21, 2019, as a self-represented litigant, Mr. Mundell commenced the action now before the court against Ms. White by notice of action. The claim in the Notice of Action stated in one paragraph:

The plaintiff’s claim is for Malpractice and Negligence failing to provide proper representation for the civil litigation claim before the Ontario Superior Court of Justice between Mark Mundell and 1141220 ONTARIO LTD. AND CHRISTOPHER TOMES, CREATIVE MEDIA SERVICES LTD, JOHN F SPRATLEY and SUZANNE D. SPRATTLEY reference number CV11433160 issued August 18, 2011. The defendants failed to advance the case or to protect the plaintiffs’ interests causing the plaintiff financial losses and charged the plaintiff legal fees and retainers for work which was not performed.

[53] On December 5, 2019, Mr. Hawa obtained for Mr. Mundell the court file report for the action against Mr. Tomes. The report indicated that the action against Mr. Tomes had been administratively dismissed in 2012.

[54] On December 18, 2019, the Statement of Claim was filed. Mr. Mundell was still a self-represented litigant, although it appears that the Statement of Claim was drafted with the assistance of a lawyer, I assume Mr. Hawa. For present purposes the pertinent portion of the pleading is paragraphs 33 to 41, which state:

33. The Defendant, Chakka breached her fiduciary duty owed to the Plaintiffs in that she behaved in manner which did not protect the Plaintiffs’ interest and in a manner which favoured her interests over those of her clients. The Plaintiffs were vulnerable clients who completely relied on the assurances and advice of the Defendant, Chakka as a professional lawyer.

34. Furthermore, Chakka made a series of misrepresentations which were not true, which were made negligently, on which the Plaintiffs relied, and which have caused them damages.

35. Chakka negligently and repeatedly made representations that there would be a default judgment or judgment coming to the Plaintiffs and that she would be enforcing judgment, when she knew or ought to have known throughout the period of these representations the Tomes claim had in fact been dismissed.

36. A motion for judgment should have been made along with a motion for substituted service, if necessary. None of this was done. No more than a Requisition to Note one or more of the defendants in the Tomes claim, in default, was ever done.

37 Under the express or implied terms of the retainer, Chakka agreed to exercise the skill and diligence of a reasonably competent lawyer in carrying out the instructions of the Plaintiffs. In addition or alternatively, Chakka owed the Plaintiffs a duty of care to the same effect.

38. Chakka failed to exercise the skill and diligence of a reasonably competent lawyer in carrying out the Plaintiffs’ instructions. As a result, Chakka breached the terms of the retainer with the Plaintiffs, or alternatively breached her duty of care to the Plaintiffs, particulars of which include:

a. failing to ascertain and inform the Plaintiffs of the progress of the matter

b failing to advise the Plaintiffs that the Tomes claim matter had been dismissed

c. failing to provide service in a competent manner thereby causing the Plaintiffs’ claim in the Tomes matter [… sic?]

d. causing damages and prejudice to the Plaintiffs’ ability to pursue amounts due to them in the Tomes claim and making it impossible to for the Plaintiffs to enforce their claims against the defendants in the Tomes claim.

39. Pursuant to the duty of care owed by the Defendant Chakka to the Plaintiffs, she was required to exercise a reasonable degree of care, skill, diligence and competence expected of a competent and prudent lawyer, including inter alia, the duty to act with reasonable care, diligence, judgment and planning when acting on the Tomes claim; she failed to make reasonable inquires and to fairly and accurately disclose all results of her investigation, assessment and analysis of the Tomes claim to the Plaintiffs.

40. Chakka knew or ought to have known that it was reasonably foreseeable that a breach of her duty and the standard of care owed to the Plaintiffs would result in injury to the Plaintiffs.

41. Chakka knew or ought to have known that her misinformation and misrepresentations about the status of the Plaintiffs’ claim for over a five year period would prejudice the Plaintiffs ability to collect on his claims in the Tomes action.

[55] On December 30, 2019, Mr. Hawa became lawyer of record for Mr. Mundell.

[56] On December 17, 2020, Ms. White was suspended by the Law Society of Ontario. She is no longer licensed to practise law.

[57] On July 14, 2021, Ms. White delivered her Statement of Defence. I was provided with no explanation why in an action commenced in November 2019, Ms. White was allowed twenty months to deliver her Statement of Defence, although undoubtedly the Covid-19 pandemic contributed to the delay.

[58] In defence of the professional negligence, negligent misrepresentation, and breach of fiduciary duty claims, Ms. White, amongst other things relies on the Limitations Act, 2002 to assert that the Plaintiffs’ claims are statute-barred.

[59] On December 17, 2021, Ms. White brought a motion for a summary judgment. In support of the motion, she relied on the affidavit of David Waterhouse dated November 2, 2021. Mr. Waterhouse is a claims counsel at LawPRO, Ms. White’s professional liability insurer. His source of information and belief comes from his review of the pleadings and from the documents produced by Mr. Mundell in the immediate action.

[60] Mr. Mundell resisted the summary judgment motion, and delivered his affidavit dated December 8, 2021 with 14 exhibits.

[61] There were no cross-examinations of Mr. Waterhouse or Mr. Mundell.

[62] The summary judgment motion was argued on October 3, 2022, over eleven years after Mr. Mundell hired Ms. White to bring a civil proceeding about a 2010 allegedly fraudulent commercial transaction.

C. Discussion and Analysis

1. Is the Case Appropriate for a Summary Judgment?

[63] The first issue to determine is whether the case at bar is an appropriate one for a summary judgment.

[64] Rule 20.04(2)(a) of the Rules of Civil Procedure[^4] 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.

[65] 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.[^5] 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.[^6]

[66] In Hryniak v. Mauldin[^7] and Bruno Appliance and Furniture, Inc. v. Hryniak,[^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.

[67] 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 motions 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. To grant summary judgment, on a review of the record, the motions 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.[^9]

[68] 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: (a) allows the judge to make the necessary findings of fact; (b) allows the judge to apply the law to the facts; and (c) is a proportionate, more expeditious and less expensive means to achieve a just result.[^10] The motions 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.[^11]

[69] In the immediate case, I am satisfied that insofar as the limitation period issue is concerned, the case at bar is an appropriate case for a summary judgment. A trial judge will be in no better a position than I am to decide whether Ms. White has a limitation period defence to the professional negligence claim. There are no genuine issues requiring a trial, and I do not even need to employ the fact-finding powers of the augmented Rule 20. There is sufficient evidence to fairly and justly adjudicate the issues of when the limitation period began to run and when Mr. Mundell discovered he had a claim for which commencing a court action was appropriate. There is sufficient evidence to find facts and draw inferences of fact based on the evidentiary record provided by Mr. Mundell. There are no credibility issues, and I have no reason to doubt the reliability or credibility of Mr. Mundell as a witness.

[70] As is the habit of contemporary society, people use email as a diary of the events of their life and as a diary of their thoughts about the events of their life. In the immediate case, there are no genuine issues requiring a trial about what Mr. Mundell knew and about what Mr. Mundell thought about what he knew. He sets it all out in his emails. In the immediate case, there are no genuine issues requiring a trial about the events of Ms. White’s misadventures in her handling Mr. Mundell’s retainer. It is all set out in Mr. Mundell’s emails. In the immediate case, there are no genuine issues requiring a trial about what, how, when, and why, Mr. Mundell responded to what he knew or did not know or what he thought about Ms. White’s handling of her retainer. It is all set out in Mr. Mundell’s emails, the court records, and his correspondence with the Law Society.

[71] I am in as a good of position as a trial judge would be to address the law that applies to the facts set out above. The case at bar is an appropriate case for a summary judgment on the limitations issue.

2. Applicable Law

[72] On this summary judgment motion, Ms. White’s argument is that Mr. Mundell’s and his corporation’s action against Ms. White is statute-barred under the Limitations Act, 2002. 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 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.[^12] 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.[^13]

[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, for 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 - a modified objective criterion - about the claim.[^14]

[75] Under the discoverability principle, a limitation period commences when the plaintiff subjectively discovers the underlying material facts or, alternatively, when the plaintiff ought to have discovered those facts by the exercise of reasonable diligence.[^15] 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.[^16] The modified objective test applies only if a plaintiff does not have actual subjective knowledge of the claim.[^17] 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.[^18] What a reasonable person in the same or similar circumstances of the plaintiff knew or ought to have known is a question of fact.[^19]

[76] 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 matters of his or her claim on the day that the act or omission took place. 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.[^20]

[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.[^21] 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.[^22] 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.[^23] If the plaintiff does know "enough facts", which means knowing the material facts, then the claim is discovered and the limitation period begins to run.[^24]

[78] Ignorance of the law does not postpone the commencement of the limitation period; if the claimant knows or ought to know the constituent elements of his or her cause of action, the circumstance that he or she may not appreciate the legal significance of the facts does not postpone the running of the limitation period.[^25] Similarly, knowledge of the full extent of the damages is not required to trigger a limitation period.[^26]

[79] 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;[^27] the limitation period runs from when the prospective plaintiff has or ought to have had, knowledge of a potential claim,[^28] and the later discovery of facts which change a borderline claim into a viable one does not give rise to the discoverability principle.[^29] For the limitation period to begin to run, a plaintiff need not know the exact act or omission that caused him or her to suffer a loss; all that the plaintiff need know is that the defendant committed some act or omission that caused the loss or damage.[^30] For the limitation period to begin to run, it is not necessary that the plaintiff know the full extent or quantification of his or her damages; rather, the period begins to run with the plaintiff’s subjective or objective appreciation of being damaged, i.e., of being worse off than before the defendant’s conduct.[^31] 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.[^32]

[80] 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.[^33] 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 liability for the act or omission that caused or contributed to the loss is not a requirement.[^34]

[81] In Grant Thornton LLP v. New Brunswick,[^35] which concerns New Brunswick’s Limitation of Actions Act,[^36] which has statutory language that is similar to sections 4 and 5 of Ontario's Limitations Act, 2002, Justice Moldaver, for the Supreme Court, discussed the measure of knowledge necessary to begin the commencement of a limitation period, and he stated at paragraph 42 that a claim is discovered when a plaintiff has knowledge, actual or constructive, of the material facts upon which a “plausible inference of liability” on the defendant’s part can be drawn. The Grant Thornton LLP decision has been adopted and followed in Ontario.[^37]

[82] At paragraphs 45-47 of the judgment, Justice Moldaver illuminated the meaning of plausible inference of liability as follows:

45. Finally, the governing standard requires the plaintiff to be able to draw a plausible inference of liability on the part of the defendant from the material facts that are actually or constructively known. In this particular context, determining whether a plausible inference of liability can be drawn from the material facts that are known is the same assessment as determining whether a plaintiff "had all of the material facts necessary to determine that [it] had prima facie grounds for inferring [liability on the part of the defendant]" (Brown v. Wahl, 2015 ONCA 778, 128 O.R. (3d) 583, at para. 7; see also para. 8, quoting Lawless v. Anderson, 2011 ONCA 102, 276 O.A.C. 75, at para. 30). Although the question in both circumstances is whether the plaintiff's knowledge of the material facts gives rise to an inference that the defendant is liable, I prefer to use the term plausible inference because in civil litigation, there does not appear to be a universal definition of what qualifies as prima facie grounds. As the British Columbia Court of Appeal observed in Insurance Corporation of British Columbia v. Mehat, 2018 BCCA 242, 11 B.C.L.R. (6th) 217, at para. 77:

As noted in Sopinka, Lederman & Bryant: The Law of Evidence in Canada, some cases equate prima facie proof to a situation where the evidence gives rise to a permissible fact inference; others equate prima facie proof to a case where the evidence gives rise to a compelled fact determination, absent evidence to the contrary. [Citation omitted.]

Since the term prima facie can carry different meanings, using plausible inference in the present context ensures consistency. A plausible inference is one which gives rise to a "permissible fact inference".

46. The plausible inference of liability requirement ensures that the degree of knowledge needed to discover a claim is more than mere suspicion or speculation. This accords with the principles underlying the discoverability rule, which recognize that it is unfair to deprive a plaintiff from bringing a claim before it can reasonably be expected to know the claim exists. At the same time, requiring a plausible inference of liability ensures the standard does not rise so high as to require certainty of liability (Kowal v. Shyiak, 2012 ONCA 512, 296 O.A.C. 352) or "perfect knowledge" (De Shazo, at para. 31; see also the concept of "perfect certainty" in Hill v. South Alberta Land Registration District (1993), 1993 ABCA 75, 8 Alta. L.R. (3d) 379, at para. 8). Indeed, it is well established that a plaintiff does not need to know the exact extent or type of harm it has suffered, or the precise cause of its injury, in order for a limitation period to run (HOOPP Realty Inc. v. Emery Jamieson LLP, 2018 ABQB 276, 27 C.P.C. (8th) 83, at para. 213, citing Peixeiro, at para. 18).

47. In my respectful view, endorsing the Court of Appeal's approach that to discover a claim, a plaintiff needs knowledge of facts that confer a legally enforceable right to a judicial remedy, including knowledge of the constituent elements of a claim, would move the needle too close to certainty. A plausible inference of liability is enough; it strikes the equitable balance of interests that the common law rule of discoverability seeks to achieve.

[83] As noted above, the Limitations Act, 2002 added the s. 5(1)(a)(iv) stipulation that a limitation period does not commence until a proceeding is a legally appropriate means for the plaintiff to seek a remedy.[^38] Subparagraph 5(1)(a)(iv) of the Limitations Act, 2002 can have the effect of delaying the commencement of the running of limitation period. Where a person knows that he or she has suffered harm and the material facts for a cause of action, the delay lasts until the day when a proceeding would be a “legally appropriate” means to remedy the harm having regard to the nature of the injury, loss or damage. However, to have this delaying effect, there must be a juridical reason for the person to wait; i.e., there must be an explanation rooted in law as to why commencing a proceeding is not yet appropriate.[^39] When resort to litigation would be appropriate is a fact-based inquiry that depends on the specific factual or statutory setting of each individual case, including taking into account the particular interests and circumstances of the plaintiff.[^40]

[84] While there may be other situations where delaying a lawsuit may be legally appropriate, the case law interpreting s. 5(1)(a)(iv) has recognized two situations where delay may be legally appropriate.[^41]

[85] One situation is where the plaintiff instead of suing the defendant, justifiably relied on a defendant’s superior knowledge and expertise to fix the problems, especially where the defendant took steps to mitigate the loss.[^42] To justify a delay in suing the defendant, the defendant must be making efforts to resolve the underlying problem of the dispute and the plaintiff must be relying on those efforts.[^43]

[86] The second situation is where the parties are waiting for the completion of an alternative dispute resolution process that offers an adequate remedy for the claim.[^44] The alternative procedure must be one that would resolve the dispute between the parties and, if successful, obviate the action.[^45] When the plaintiff relies on other processes as suspending the running of the limitation period, the duration of the process must not be open-ended; the resolution or termination of that process must be reasonably certain or ascertainable by the court.[^46]

[87] It is not legally appropriate to delay commencing an action because the plaintiff knows that he or she has been harmed by the defendant but is uncertain that he or she will be able to marshal evidence to prove the claim or is unsure whether the measure of damages makes litigation economically worthwhile; i.e., whether the scale of the loss will make an action remunerative.[^47] There is no general principle that a limitation period will not begin to run when an alternative process might resolve the plaintiff’s claim and whether the alternative dispute resolution process will suspend the running of a limitation period will depend upon the facts or statutory background of each particular case.[^48]

3. Application of the Law

[88] In my opinion, the limitation period for Mr. Mundell’s claim against Ms. White began to run in the summer of 2016 when Mr. Mundell sought Mr. Sellors’ assistance to find a lawyer because of Mr. Mundell’s dissatisfaction with Ms. White’s handling of the Tomes action for the previous five years.

[89] In the summer of 2016, Mr. Mundell subjectively knew he had a claim against Ms. White. Although he also had unfounded suspicions or speculation that Ms. White might have colluded with Mr. Tomes, he had, to use the language of Grant Thornton LLP v. New Brunswick, non-speculative knowledge of facts from which there was a plausible inference that he had a claim against Ms. White.

[90] It is informative to note that Mr. Mundell’s notice of action dated November 21, 2019 is based on what Mr. Mundell knew when he wrote Mr. Sellors in June 2016. His 2019 claim against Ms. White is based on what he had known since the summer of 2016. It is also informative to note that with the addition of the December 2019 acquired knowledge about the administrative dismissal of the Tomes action in 2012, the particulars of negligence and misrepresentation set out in the December 2019, Statement of Claim are based on what Mr. Mundell already knew to be material facts in the summer of 2016.

[91] To use the language of s. 5 (1)(a)(i) of the Limitations Act, 2002, in the summer of 2016 Mr. Mundell first knew that injury loss or damage had occurred. He knew that Ms. White was not following instructions or had been inept or ineffective at following instructions. He knew in the summer of 2016 that he had wasted $17,311.31 in legal fees. He knew that he had recovered nothing from Mr. Tomes. He believed that Mr. Tomes was making himself judgment proof by the delay in enforcing the judgment. He knew that he had reasons to sue Ms. White and indeed he was contemplating doing so. To use the language of s. 5 (1)(a)(ii) and (iii) of the Limitations Act, 2002, in the summer of 2016, Mr. Mundell first knew that his damages were caused by the acts and omissions of Ms. White.

[92] To use the language of s. 5 (1)(a)(iv) of the Limitations Act, 2002, in the summer of 2016, Mr. Mundell first knew that, having regard to the nature of the injury, loss or damage, an action against Ms. White would be an appropriate means to seek to remedy. In his email message to Mr. Sellors, written in the summer of 2016, Mr. Mundell described Ms. White’s handling of the Tomes litigation as grossly mishandled. He did not want to continue the retainer with Ms. White because he did not trust her, and he already thought that his best recourse would be a lawsuit against her. His thinking in the summer of 2016 was correct, but he did not sue until the late autumn of 2019.

[93] To use the language of s. 5 (2) of the Limitations Act, 2002, the summer of 2016, was the time in which a reasonable person with the abilities and in the circumstances of Mr. Mundell first ought to have known that he had claim against Ms. White and that a lawsuit was an appropriate way to remedy his damages.

[94] Objectively speaking, in the summer of 2016, Mr. Mundell had the means to determine whether he had a claim against Ms. White, but he did not need those means, because he already knew that he had a claim. In other words, Mr. Mundell did not fail to exercise due diligence in discovering that he had a claim against Ms. White; he did not need the confirmation or the advice of a lawyer to confirm what he already knew in the summer of 2016.

[95] It is unfortunate that Mr. Brown was unable to get Mr. Mundell to a litigation lawyer until the start of 2018, and it is unfortunate that neither Mr. Brown nor Mr. Ghahraei suggested that a Notice of Action be immediately filed. A claim could have been filed while investigations continued to determine how likely that claim would have of success, which topic it seems was more the focus of Mr. Mundell’s conversations with the lawyers than whether Mr. Mundell had a claim.

[96] In this regard, it is important to recall that a limitation period begins to run when a person discovers he or she has a potential claim against the defendant. It is the existence of the claim, not the strength or merits of it, that starts the running of the limitation period. As noted above, 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; the limitation period runs from when the prospective plaintiff has or ought to have had, knowledge of a potential claim. From the summer of 2016, subjectively and objectively speaking, a person in Mr. Mundell’s circumstances would know that there was a potential claim against Ms. White. In the summer of 2016, Mr. Mundell had some doubt about whether his claim would succeed. His doubts about success do not forestall the running of the limitation period.

[97] Mr. Brown’s suggestion that the litigation would be assisted by Mr. Mundell making a complaint to the Law Society was reasonable tactical advice to facilitate Mr. Mundell’s negligence claim. However, that tactical decision was not a reason to forgo commencing an action against Ms. White. In this regard, the case at bar is similar to Gravelle (CodePro Manufacturing) v. Denis Grigoras Law Office,[^49] where the Court of Appeal dismissed an appeal of a judge’s ruling that the plaintiff’s action was statute-barred, and the Court stated at paragraph 6 of its endorsement:

6. This is not a case in which the appellant was pursuing alternative means of resolving his negligence allegations against his former solicitors, the respondents. The appellant decided for tactical reasons not to bring his action against the respondents until the arbitration proceedings were completed. He was entitled to make this choice, but he must live with the consequences of it. […]

[98] Filing a complaint with the Law Society may have been a fine tactical decision, but it did not stop the running of the limitation period. The complaint procedure of the Law Society is not an alternative to court proceedings or even a way to leverage a settlement in court proceedings. The Law Society proceeding would not have resolved Mr. Mundell’s claim for the return of his wasted legal fees. The Law Society proceeding would not have resolved Mr. Mundell’s damages from Ms. White’s mishandling of the litigation against Mr. Tomes. The Law Society proceeding would not obviate the need for court action. The existence of the Law Society’s complaint procedure or the Law Society’s compensation fund does not make a court proceeding not yet the appropriate means to seek a remedy against Ms. White. In the immediate case, it was appropriate for Mr. Mundell to complain to the Law Society, but it was also appropriate for him to sue Ms. White after he had discovered his claim against her in the summer of 2016. Mr. Mundell might, as some disgruntled clients do, both complain to the Law Society and also sue for professional negligence.

[99] In any event, if Mr. Mundell discovered his claim in the summer of 2016, which I find to be a proven fact, the filing of a complaint with the Law Society in the summer of 2018 comes too late to arrest the running of the limitation period.

[100] Pursuant to s. 5(2) of the Limitations Act, 2002, unless the contrary is proven, it is presumed that Mr. Mundell had the requisite knowledge to start the running of the limitation period on the day that the act or omission took place. In the immediate case, Ms. White’s harmful acts and omissions took place virtually from the outset of her retainer in 2011, but Mr. Mundell has rebutted the presumption that he had discovered the acts or omissions as early as the outset of the retainer. However, the evidence in the immediate case only goes so far as showing that Mr. Mundell had discovered his claim by the summer of 2016 (if not even earlier, if his earlier airing of grievances emails to Ms. White are taken into account).

[101] Mr. Mundell made several erroneous arguments about the running of the limitation period in the circumstances of the immediate case. He argued that the limitation period could not begin to run until Ms. White’s retainer had ended, the date of which was unclear and likely was not before September of 2017 when Ms. White sent her letter dated March 24, 2017. Apart from the fact that this scenario would still make a November 2019 commencement date untimely, it is a wrong argument. Ms. White’s errors and omissions made her suable almost from the outset of her retainer. She could and probably should have been fired anytime between 2011 and 2016. Mr. Mundell could and should have sued her when he discovered his claim in the summer of 2016.

[102] Mr. Mundell argued that the claim against Ms. White could not have been discovered until Mr. Mundell could determine whether the delay in enforcing the judgment against Mr. Tomes was abnormal and attributable to Ms. White’s faults and causative of harm as opposed to being attributable to the normal delays of the “litigation process.” He submitted that he had to have knowledge of whether it was more than the “litigation process” and that he could attribute the delay and the consequent harm to Ms. White’s handling of the matter. Mr. Mundell makes this argument throughout his factum. One example is paragraph 55, which states:

55. As frustrating as Chakka was, from Mundell’s perspective, the delays were attributable to Chakka’s numerous personal and practical issues and because of the slow moving administration of justice (together characterized as the “litigation process”). Neither of the foregoing reasons for delay form the basis of a negligence suit against Chakka. Any claim during Chakka’s period of her retainer would have been speculative as Mundell would not have known if the damage for delay was due to the ordinary “litigation process” (and therefore not actionable) or whether or not Chakka was mitigating/ameliorating that damage for the delay or due to Chakka’s lies about the status of Tomes Claim (which would be actionable). See S. 5(a)(ii) (iii) and (iv) of the Limitations Act. As such, a start date for the limitation period, during Chakka’s tenure, is difficult to establish.

[103] This argument is fallacious. As demonstrated by his Notice of Action and his Statement of Claim issued in November and December 2019, there was nothing speculative about Mr. Mundell’s claim. The claim was based on more than the delays of the litigation process. The Notice of Action was based on what Mr. Mundell knew in the summer of 2016, which was more than litigation process delay. As it turned out, by the time he filed a more fulsome Statement of Claim - which continued to assert the allegations of material facts he had known since 2016 - he had the added material fact of the administrative dismissal of the action in 2012.

[104] I pause here to observe that it would not have been necessary to have a file recalled from storage to determine whether there was an administrative dismissal pursuant to Rule 48. That information is available in the court’s computer database and in the immediate case, it seems that the precise question was never asked until December 2019.

[105] In any event, the action against Ms. White was based on more than delays attributable to the “litigation process” and the action did not have to wait until it was determined what was taking so long in suing Mr. Tomes to a judgment and collecting on that judgment. Mr. Mundell knew in the summer of 2016 that he had suffered damages at the professional hand of Ms. White, and he knew or ought to have known that an action was the appropriate course.

[106] Mr. Mundell argued that a lawsuit against Ms. White was not appropriate because he relied on Mr. Brown’s advice about proceeding with a Law Society complaint first. Mr. Brown made it clear that he did not feel competent to advise Mr. Mundell about court proceedings, and he helped Mr. Brown to retain a litigation lawyer for an opinion. Mr. Brown never advised Mr. Mundell not to commence court proceedings contemporaneous with filing a complaint with the Law Society. In my opinion, there was nothing that Mr. Brown said that would make an action inappropriate any time after the summer of 2016, when, to once again refer to the emails of Mr. Mundell, he said in his June 7, 2016 message to Mr. Sellors; “I am looking for advice on continuing to work with this lawyer (I would rather not – I don’t trust she is doing anything), or what maybe my best recourse for action here?” or in his follow up message on August 26, 2016: “It’s been a while…any advice? Sue her for non-performance?”

[107] Mr. Mundell argued that a lawsuit against Ms. White was not appropriate because he relied on Ms. White’s superior knowledge and expertise to forestall his suing her. As he set out in his summer of 2016 email messages, Mr. Mundell did not trust her, and he was intent on suing her. His only uncertainties were about whether he would win his lawsuit or whether it was worth the likely return. Ms. White never admitted any negligence, and Mr. Mundell did not rely on her to fix the problem. Ms. White did not give Mr. Mundell a reasons to delay suing her, which he knew from the summer of 2016 he eventually wanted to do. Alas, he waited too long, and his claim is statute-barred.

D. Conclusion

[108] For the above reasons, the motion for a summary judgment is granted.

[109] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with Ms. White’s submissions within twenty days from the release of these Reasons for Decision followed by the Plaintiffs’ submissions within a further twenty days. Notwithstanding Ms. White’s success, I shall have to be persuaded to order costs against the Plaintiffs.

Perell, J.

Released: October 21, 2022

COURT FILE NO.: CV-19-00631498-0000

DATE: 20221021

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MARK MUNDELL and 1441220 ONTARIO LTD.

Plaintiffs

• and –

CHAKKA WHITE aka CHAKKA C.N. WHITE aka CHAKKA WHITE BARRISTER AND SOLICITOR aka CHAKKA N. WHITE PN aka CN WHITE LAW CHAMBERS

Defendants

REASONS FOR DECISION

PERELL J.

Released: October 21, 2022

[^1]: S.O. 2002, c. 24 c 24 Sched B.

[^2]: R.S.O. 1990, c. L.8.

[^3]: Law Society of Ontario v. White, 2019 ONLSTH 138.

[^4]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[^5]: Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372 at para. 11; Dawson v. Rexcraft Storage & Warehouse Inc., 1998 CanLII 4831 (ON CA), [1998] O.J. No. 3240 (C.A.); Bluestone v. Enroute Restaurants Inc. (1994), 1994 CanLII 814 (ON CA), 18 O.R. (3d) 481 (C.A.).

[^6]: Toronto-Dominion Bank v. 466888 Ontario Ltd., 2010 ONSC 3798.

[^7]: 2014 SCC 7.

[^8]: 2014 SCC 8.

[^9]: 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.

[^10]: Hryniak v. Mauldin, 2014 SCC 7 at paras. 49 and 50.

[^11]: 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.

[^12]: Kamloops v. Nielson (1984), 1984 CanLII 21 (SCC), 10 D.L.R. (4th) 641 (S.C.C.); Central Trust Co. v. Rafuse (1986), 1986 CanLII 29 (SCC), 31 D.L.R. (4th) 481 (S.C.C.); Peixeiro v. Haberman, 1997 CanLII 325 (SCC), [1997] 3 S.C.R. 549.

[^13]: Lawless v. Anderson, 2011 ONCA 102 at para. 22; Aguonie v. Galion Solid Waste Material Inc. (1998), 1998 CanLII 954 (ON CA), 38 O.R. (3d) 161 at p. 170 (C.A.).

[^14]: Ferrara v. Lorenzetti, Wolfe Barristers and Solicitors, 2012 ONCA 851 at paras. 33 and 70.

[^15]: Central Trust Co. v. Rafuse, 1986 CanLII 29 (SCC), [1986] 2 S.C.R. 147 at p. 224.

[^16]: 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.

[^17]: Canning Construction Limited v. Dhillon, 2021 ONSC 665 at para. 37.

[^18]: 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 CanLII 52159 (ON CA), 66 O.R. (3d) 397 (C.A.); Kenderry-Esprit (Receiver of) v. Burgess, MacDonald, Martin and Younger (2001), 2001 CanLII 28042 (ON SC), 53 O.R. (3d) 208, at para. 19 (S.C.J.); Smyth v. Waterfall (2000), 2000 CanLII 16880 (ON CA), 50 O.R. (3d) 481 at para. 8 (C.A.).

[^19]: Arcari v. Dawson, 2016 ONCA 715; Lima v. Moya, 2015 ONSC 324 at para. 76, aff’d 2015 ONSC 3605 (Div. Ct.).

[^20]: 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 CanLII 42355 (ON CA), 83 O.R. (3d) 648 at paras. 20–22 (C.A.); Bhaduria v. Persaud (1998), 1998 CanLII 14846 (ON SC), 40 O.R. (3d) 140 (Gen. Div.).

[^21]: Aguonie v. Galion Solid Waste Material Inc., (1998), 1998 CanLII 954 (ON CA), 38 O.R. (3d) 161 (C.A.); Ladd v. Brantford General Hospital (2007), 2007 CanLII 45921 (ON SC), 88 O.R. (3d) 124 (S.C.J.).

[^22]: 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 CanLII 14797 (ON SC), 44 O.R. (3d) 296 (Gen. Div.).

[^23]: 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.

[^24]: Vu v. Canada (Attorney General); 2021 ONCA 574 at para. 49; Lawless v. Anderson, 2011 ONCA 102 at para. 23.

[^25]: 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 CanLII 54974 (ON SC), [2008] O.J. No. 4258 at para. 27 (S.C.J.), aff’d 2009 ONCA 692, [2009] O.J. No. 4061 (C.A.).

[^26]: Tender Choice Foods Inc. v. Versacold Logistics Canada Inc, 2013 ONCA 474at para. 5.

[^27]: Dass v. Kay, 2021 ONCA 565; Sosnowski v. MacEwan Petroleum Inc., 2019 ONCA 1005.

[^28]: 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.

[^29]: Giakoumakis v. Toronto (City), [2009] O.J. No. 55 at para. 20 (S.C.J.); Oakville Hydro Electricity Distribution Inc. v. Tyco Electronics Canada Ltd. (2004) 2004 CanLII 13633 (ON SC), 71 O.R. (3d) 330 at paras. 10–13.

[^30]: Gordon Dunk Farms Limited v. HFH Inc., 2021 ONCA 681 at paras. 32-36.

[^31]: Pickering Square Inc. v. Trillium College Inc., 2014 ONSC 2629 at paras. 64–66, aff’d 2016 ONCA 179; Hamilton (City) v. Metcalfe & Mansfield Capital Corp., 2012 ONCA 156.

[^32]: Brantford Engineering and Construction Ltd. v. Brantford (City), 2015 ONSC 5191; Lawless v. Anderson, 2011 ONCA 102 at para. 23; McSween v. Louis, 2000 CanLII 5744 (ON CA), [2000] O.J. No. 2076 (C.A.); Soper v. Southcott (1998), 1998 CanLII 5359 (ON CA), 39 O.R. (3d) 737 (C.A.); Gaudet v. Levy (1984), 1984 CanLII 2047 (ON SC), 47 O.R. (2d) 577 at p. 582 (H.C.J.).

[^33]: 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 CanLII 5744 (ON CA), [2000] O.J. No. 2076 (C.A.); Soper v. Southcott (1998), 1998 CanLII 5359 (ON CA), 39 O.R. (3d) 737 (C.A.); Gaudet v. Levy (1984), 1984 CanLII 2047 (ON SC), 47 O.R. (2d) 577 at p. 582 (H.C.J.).

2016 ONCA 327.

[^34]: 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 CanLII 2047 (ON SC), 47 O.R. (2d) 577 (H.C.J.).

[^35]: 2021 SCC 31 (Justices Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer).

[^36]: S.N.B. 2009, c. L-8.5, s. 1.

[^37]: McFlow Capital Corp. v. James, 2021 ONCA 753; Gordon Dunk Farms Limited v. HFH Inc., 2021 ONCA 681; Vu v. Canada (Attorney General); 2021 ONCA 574; Sunnybrook Health Sciences Centre v. Buttcon Ltd. 2021 ONSC 6061.

[^38]: Dass v. Kay, 2021 ONCA 565 at para. 24.

[^39]: Dass v. Kay, 2021 ONCA 565; Sosnowski v. MacEwan Petroleum Inc., 2019 ONCA 1005; 407 ETR Concession Co. v. Day, 2016 ONCA 709, rev’g 2014 ONSC 6409, leave to appeal to S.C.C. refused [2016] S.C.C.A. No. 509; Markel Insurance Co. of Canada v. ING Insurance Co. of Canada; Federation Insurance Co. of Canada v. Kingsway General Insurance Co., 2012 ONCA 218.

[^40]: Dass v. Kay, 2021 ONCA 565; Sosnowski v. MacEwan Petroleum Inc., 2019 ONCA 1005; 407 ETR Concession Co. v. Day, 2016 ONCA 709, rev’g 2014 ONSC 6409, leave to appeal to S.C.C. refused [2016] S.C.C.A. No. 509; Gottlieb (Trustee for) v. Minuk Construction & Engineering Ltd. (c.o.b. Minuk Contracting Co.), 2016 ONSC 7350.

[^41]: Dass v. Kay, 2021 ONCA 565; Sosnowski v. MacEwan Petroleum Inc., 2019 ONCA 1005; Ridel v. Goldberg, 2019 ONCA 636 at para. 71.

[^42]: Fresco v. Canadian Imperial Bank of Commerce 2022 ONCA 115 at paras. 97-99; DeZwirek v. Swadron, 2019 ONSC 1709; Presley v. Van Dusen, 2019 ONCA 228; Barrs v. Trapeze Capital Corp., 2017 ONSC 5466; YESCO Franchising LLC v. 2261116 Ontario Inc., 2017 ONSC 4273; Presidential MSH Corp. v. Marr, Foster & Co. LLP, 2017 ONCA 325, at paras. 20-26; Brown v. Baum, 2016 ONCA 325 at para. 18.

[^43]: Fresco v. Canadian Imperial Bank of Commerce, 2022 ONCA 115 at paras. 97-99; Canning Construction Limited v. Dhillon, 2021 ONSC 665 at paras. 46-47; Presidential MSH Corp. v. Marr Foster & Co. LLP, 2017 ONCA 325, at paras. 20-26.

[^44]: Beniuk v. Leamington (Municipality), 2020 ONCA 238; Lilydale Cooperative Ltd. v. Meyn Canada Inc., [2019] O.J. No. 4902, 2019 ONCA 761Presidential MSH Corp. v. Marr Foster & Co. LLP, 2017 ONCA 325 at paras. 28-29; 407 ETR Concession Co. v. Day, 2016 ONCA 709 at para. 40, rev’g 2014 ONSC 6409, leave to appeal to S.C.C. refused [2016] S.C.C.A. No. 509; Kadiri v. Southlake Regional Health Centre, 2015 ONSC 621 at paras. 52–57, aff’d 2015 ONCA 847; U-Pak Disposals (1989) Ltd. v. Durham (Regional Municipality), 2014 ONSC 1103 at paras. 22–25.

[^45]: Canning Construction Limited v. Dhillon, 2021 ONSC 665 at para. 51; Lilydale Cooperative Limited v. Meyn Canada Inc., 2019 ONCA 761, at para. 60; 407 ETR Concession Co. v. Day, 2016 ONCA 709 at paras. 30, 39, rev’g 2014 ONSC 6409, leave to appeal to S.C.C. refused [2016] S.C.C.A. No. 509.

[^46]: Soleimani v. Levesque, 2019 ONSC 619; Presidential MSH Corp. v. Marr, Foster & Co. LLP, 2017 ONCA 325.

[^47]: Dass v. Kay, 2021 ONCA 565 at paras. 43-44; Sosnowski v. MacEwan Petroleum Inc., 2019 ONCA 1005 at para. 19; Peixeiro v. Haberman, 1997 CanLII 325 (SCC), [1997] 3 S.C.R. 549 at para. 18.

[^48]: Beniuk v. Leamington (Municipality), 2020 ONCA 238; Nelson v. Lavoie, 2019 ONCA 431 at para. 25; Ridel v. Goldberg 2019 ONCA 636 at para. 71; 407 ETR Concession Co. v. Day, 2016 ONCA 709, rev’g 2014 ONSC 6409, leave to appeal to S.C.C. refused [2016] S.C.C.A. No. 509.

[^49]: 2018 ONCA 396.