Court File and Parties

COURT FILE NO.: 18-66878 DATE: 20230213 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: TADEUSZ MAZGAJ, Plaintiff AND: FABIO ADRIAN CORZO REYES, Defendant

BEFORE: Mr. Justice Robert B. Reid

COUNSEL: B. Kurpis, Counsel, for the Plaintiff D. Mauer, M. Munro, Counsel, for the Defendant

HEARD: November 30, 2022

Decision on Motion

Introduction:

[1] The plaintiff’s claim is for repayment by the defendant of approximately $300,000.

[2] The defendant asserts that the claim is statute barred by the expiration of the limitation period and as a result seeks a summary judgment in his favour. In the alternative, the defendant seeks leave to amend the statement of defence to withdraw certain admissions.

Background:

[3] The plaintiff is deaf. He communicates by American Sign Language (“ASL”) and Visual Language.

[4] The plaintiff and defendant were good friends and the defendant has described the plaintiff as his “big brother”. The plaintiff lived with the defendant and the defendant’s family from 1990 to 1995. The defendant is not hearing impaired, but is fluent in ASL.

[5] The plaintiff alleges that six cash loans were made by him to the defendant from 2006 to 2014 which remain unpaid. The statement of claim was issued September 21, 2018.

[6] Some communication from the plaintiff to the defendant on the subject of the loans was in writing. The plaintiff received help from the Canadian Hearing Society which assisted him translating from ASL into written English. Other communications were in person between the two men.

[7] The defendant submits that email correspondence and letters exchanged between the parties contained clear and unequivocal demands for repayment. Based on the dates of the communications, the defendant asserts that the two-year limitation period expired at the latest on May 1, 2018, approximately four months before the litigation began.

[8] The plaintiff’s position is that the emails and letters were merely requests for status updates on when and how the various loans could be repaid, and that they were not clear and unequivocal demands for immediate repayment. The plaintiff submits that until September 30, 2017 he had an honestly held belief that the loans would be repaid, which was about one year before the claim was issued, following which a demand for immediate repayment was made.

The Test for Summary Judgment:

[9] Rule 20.04(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 requires that the court grant summary judgment if it is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.

[10] In Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court of Canada made it clear that there will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination of the merits on a motion for summary judgment. As the Court held at paragraph 49, “[t]his will be the case when the process allows the judge to make the necessary findings of fact, allows the judge to apply the law to the facts, and is a proportionate, more expeditious and less expensive means to achieve a just result”.

[11] Unless it is in the interest of justice to proceed to a trial, the court can use its expanded fact-finding powers under the Rules if needed to consider the evidence submitted by the parties, weigh the evidence, evaluate credibility and draw reasonable inferences from the evidence. The parties are expected to put their best foot forward and the court can assume that all necessary evidence has been tendered in support of and in opposition to the summary judgment motion.

[12] Ultimately, whether using the expanded fact-finding powers or not, the motions judge must determine if there is a genuine issue requiring a trial.

The Statute of Limitations:

[13] It is not controversial that, pursuant to section 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B (the “Act”), a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

[14] As to the discovery of a claim, section 5(1) of the Act provides that:

(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).

[15] As to debt claims, section 5(3) of the Act provides that: “[f]or the purposes of subclause (1)(a)(i), the day on which injury, loss or damage occurs in relation to a demand obligation is the first day on which there is a failure to perform the obligation, once a demand for the performance is made.

Discussion:

[16] There are many factual disputes between the parties. Some of the loans were based on oral arrangements, and others were accompanied by promissory notes. Some had specific maturity dates, and others no terms at all. There is a dispute that the last two of the six alleged loans even occurred.

[17] Affidavits were filed by the parties in support of their respective positions on the motions, and cross-examinations were held.

[18] The defendant submits that the significant credibility issues present in the plaintiff’s evidence should be resolved in favour of the defendant using the expanded powers available to the court under rule 20.04. The credibility issues on various aspects of the claim weigh against the plaintiff as to his position that no demand for repayment was made until September 2017.

[19] The matter of whether the plaintiff expected to be repaid, which he admits, is not determinative since the expectation for repayment and the demand for payment are two separate matters.

[20] In particular, the defendant relies on written correspondence received from the plaintiff.

[21] An email was sent by the plaintiff as part of a chain dated January 9, 2014 which the defendant characterizes as a demand for payment. A further email was dated December 1, 2014 which is also submitted to be a demand for payment. On February 26, 2015, the plaintiff attended at the defendant’s home and gave the defendant two letters that had been prepared with the assistance of the Canadian Hearing Society (the “CHS”). The subject line was “request for payment”. The defendant submits that the letters referred to all the money loaned by the plaintiff as well as how repayment was to be made.

[22] For his part, the plaintiff contends that he did not believe the defendant to be in default because the defendant repeatedly assured him that the money would be repaid. The plaintiff submits that the correspondence was informative but did not amount to clear and unequivocal demands for repayment.

[23] The difficulty with the emails is that they are not clear statements. For example, the email of January 9, 2014 from the plaintiff is entitled “REback money 27.000 usd 24 hour.” It then says “All I am doing is signing an agreement. To return you your money 243 000 $ that’s all we did have meeting family. We want to speak with you today in the night you come my home.” The amount referred to in the body of the email is different from the amount in the subject line, and there is a proposed meeting which apparently never occurred.

[24] The December 1, 2014 email from the plaintiff to the defendant reads: “ready $ 300.k send to tadeusz mazgaj, adrian use money from tadeusz mazgaj, Adrian back to money now.” The defendant’s response a few minutes later was: “I don’t know what you are talking about!! Open Skype to explain me this ??”

[25] The two letters of February 26, 2015 from the plaintiff to the defendant, prepared with the assistance of the CHS translating from ASL set out as follows:

Re: Request for repayment Dear Adrian Reyes In July 2013, I loaned you $300, 000 US dollars to help with your future business. After I loaned you the money, you didn't process set up of the business. So I decided to make a request that you pay me $300, 000 US dollars back since you didn't process set up of the business and I want you to process the repayment back to me. I don't want to remind you again, and in the future please respect my request and start the process to make the repayment back to me. You can either repay the money to my bank in Poland or to my bank in Canada. Sincerely, Tadeusz Mazgaj

Re: Request for repayment Dear Adrian Reyes In September 2014, 1 loaned you $9,000 US dollars to help with your business with cattle. I decided to make a request that you pay me $9,000 US dollars back since I am not part of your business so I want you to process the repayment back to me. Sincerely, Tadeusz Mazgaj

[26] The plaintiff deposed that he did not understand the meaning of the heading on the February 26, 2015, letters (“Request for Payment”) based on his lack of comprehension of the English language. Polish, rather than English, was his first language, quite apart from his deafness. He deposed that the letters were requests for status updates rather than demands for payment. According to him, he wanted to know when the repayments would be made.

[27] The fact that there are significant disagreements including credibility issues outstanding between the parties does not prevent the making of a summary judgment. The court has the power under rule 20.04 to make credibility findings. The question is whether there is a genuine issue requiring a trial. Put another way, the court must determine whether it is able to reach a fair and just determination of the merits through the summary judgment procedure.

[28] The issue of whether a clear and unequivocal demand was made by the plaintiff for repayment by the defendant is central to the motion. The matter is complicated by the impediments to conventional communication experienced by the plaintiff. His deafness required signing through ASL and his apparent lack of facility in the English language, as is obvious from the email prepared by him, are examples. A further potential for misunderstanding arose when the CHS became involved to assist the plaintiff translating from ASL to English in the February 26, 2015 letters, given the plaintiff’s subsequent explanation for the content of those letters.

[29] Quite apart from the merits of the case generally, it may very well be that the plaintiff’s claim will be found to be statute barred, based on the evidence in general and on the content of the February 26, 2015 letters in particular. However, it is not possible for this court to proceed with confidence to draw that conclusion and proceed to summary judgment, given the conflicting evidence and the communication barriers that exist. This is a case where a genuine issue does exist requiring a trial for a fair and just determination on the merits.

[30] As a result, the motion for summary judgment is dismissed.

Pleadings Amendment:

[31] The defendant seeks leave to amend the statement of defence to withdraw certain admissions. Documents were located only after the filing of the statement of defence. They came to light through the examination for discovery of the plaintiff. Had their contents been known at the outset, different facts would have been pleaded, relating to the advancement of money by the plaintiff to the defendant after June 2013.

[32] Rule 26.01 mandates leave to amend pleadings on motion except in the case where prejudice would occur that could not be compensated for by costs or an adjournment. Rule 51.05 permits withdrawal of an admission with leave of the court.

[33] No non-compensable prejudice will follow the amendment requested. The defendant’s request was not opposed by the plaintiff.

[34] There will be an order granting the defendant leave to amend the statement of defence as set out in Schedule “A” hereto which was as attached to the Amended Notice of Motion dated May 20, 2022.

[35] The plaintiff may require the defendant to attend for further examination for discovery as to any pleadings amendments made pursuant to this order.

Costs:

[36] The parties are encouraged to resolve the issue of costs of the motion between themselves. If they are unable to do so, they may submit Bills of Costs and make written submissions, consisting of not more than three pages in length according to the following timetable:

• The plaintiff is to serve his Bill of Costs and submissions by February 24, 2023;
• The defendant is to serve his Bill of Costs and submissions by March 10, 2023;
• The plaintiff is to serve his reply submissions, if any, by March 17, 2023;
• All submissions are to be filed with the court and uploaded to CaseLines by March 20, 2023.

[37] If no submissions are received by the court by March 20, 2023, or any agreed extension, the matter of costs will be deemed to have been settled.

Reid J. Date: February 13, 2023