Court File and Parties

Court File No.: CV-16-566961 Date: May 8, 2023 Superior Court of Justice – Ontario

Re: Robert Salna and North Lake Estates Inc., Plaintiffs And: 741980 Ontario Limited and Enzo Risi and Rose Risi also known as Rose Ferraro and Bayview Estates Inc. and Rocco Auciello and Antonietta Auciello and Jim Pourgoutzidis and Melissa Nunes, Defendants

Before: Justice Papageorgiou

Counsel: Sean N. Zeitz and James S. Quigley, for the Plaintiffs Arnie Herschorn, for the Defendants

Heard: In Writing

Endorsement

[1] I heard a partial summary judgment motion in this matter on February 8, 2023.

[2] Following the Court of Appeal’s decision in Co-Operators General Insurance et al., 2023 ONCA 267, I requested submissions on the appropriateness of partial summary judgment in this matter.

[3] On April 27, 2023 the parties made a joint submission that they agreed on the appropriateness of summary judgment.

[4] Pursuant to r. 20 (2.2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 the court may order that oral evidence be presented by one or more parties.

[5] In this case, the affidavits of Robert Salna and Enzo Risi conflict on the following point: Mr. Salna states that Mr. Risi agreed to engage the accountant Harold Niman to prepare an accounting of the alleged partnership profits and that Mr. Risi, who is the principle of 741980 Ontario Limited (“741”) agreed that if any amounts were found owing to Mr. Salna, 741 would pay any amounts found owing. Mr. Risi has denied that Mr. Niman was retained to provide an accounting and also denies that he agreed that if it was determined that 741 owed any funds, that 741 would pay. He indicates that Mr. Niman’s task was to see how Mr. Salna’s book-keeper, Inga Gratcheva “got her numbers”.

[6] There is also an issue as to what partnership documents related to the alleged partnership Mr. Salna had access to prior to the commencement of this claim.

[7] Further, in the Plaintiffs’ factum they state “Risi enacted a charade wherein he pretended that he wanted to resolve the dispute by hiring a professional accountant to conduct the financial review with a promise to pay any amount owing, if such was determined by the accountant” and that “Risi purposively lulled Salna into a false sense of security trusting that Risi wanted to resolve their dispute out of court. And now Risi tries to use the ‘fruits of his ruse’ to claim that Salna’s action is statute-barred. Risi denies this.

[8] These are credibility issues which may influence the outcome of this partial summary judgment motion.

[9] Therefore, I am directing that a mini trial be held in respect of this issue.

[10] As part of this mini trial, the parties should address their evidence related to the above and also whether any estoppels arise in law with respect to the limitation period issue as a result of any facts proven through this mini-trial, together with relevant caselaw.

[11] Finally, as part of this mini trial the parties should address the applicability of s. 11 of the Limitations Act, 2002, if any, together with relevant caselaw.

[12] In my view, the only witnesses required are Mr. Risi and Mr. Salna, but if the parties wish to call others on these issues, they may.

[13] In my view this should take no longer than one day and I will make myself available any of the following times: anytime during the weeks of May 22, June 5, June 12 or June 19.

Justice Papageorgiou Date: May 8, 2023