Court File and Parties

Court File No.: CV-22-00687000-00
Date: 2025-05-05
Court: Superior Court of Justice - Ontario

Re: Jasvinder Singh et al
And: Chaitons LLP et al.

Before: Rohit Parghi

Counsel:
Patrick Di Monte, for the Plaintiffs
Cynthia L. Spry and Aaron Gold, for the Defendant/Moving Party, Ernst & Young LLP

Heard: 2025-03-25

Endorsement

[1] The Defendant Ernst & Young moves for summary judgment on the basis that the limitation period for the Plaintiffs’ action against it has elapsed. For the reasons below, I grant the motion.

Factual Background and the Underlying Action

[2] On June 16, 2017, Sarbjit Deol, the widow of Harpinder Singh Deol and his estate trustee, brought an application against her husband’s surviving brothers and other defendants, seeking an order that they purchase the estate’s interest in certain properties. While there have been many ins and outs to this litigation, I summarize here only those aspects of the litigation that are relevant to this motion.

[3] By Order dated April 6, 2018, McEwen J. ordered that the estate had a 20% interest in the properties, ordered the brothers to pay the estate’s 20% interest in the properties, and ordered the parties to jointly retain a valuator to value the properties. The following month, the parties jointly retained Ernst & Young to carry out the valuation.

[4] On February 1, 2019, Ernst & Young provided a draft report valuing the properties. The record before me indicates that the Plaintiffs received the report and discussed it with their then-counsel, Mr. Schwartz, on February 8, 2019.

[5] On September 13, 2019, Dietrich J. granted the estate summary judgment against the Plaintiffs and ordered the sale of the properties in dispute.

[6] On February 28, 2020, the parties entered into a settlement agreement whereby the Plaintiffs would pay $1.7 million to the estate for its 20% interest in the properties.

[7] On September 12, 2022, the Plaintiffs commenced this action contesting that settlement agreement. The action is brought against Ernst & Young and the Plaintiffs’ former lawyer, Mr. Schwartz, and his law firm, Chaitons.

[8] The action against Mr. Schwartz and Chaitons impugns the legal advice given to the Plaintiffs in the estate application and its ensuing settlement: it asserts that Chaitons and Mr. Schwartz did not follow Mr. Singh’s instructions, did not “present a full evidentiary record to the court” in the application litigation, did not appeal the order of Dietrich J., and provided inadequate legal advice to the Plaintiffs.

[9] The action against Ernst & Young asserts that the Plaintiff overpaid the estate in the settlement because of the “lack of a definitive appraisal report” from Ernst & Young, which caused the court to take “extraordinary measures and ordered the sale of the properties.”

[10] The basis of the Plaintiffs’ claim against Ernst & Young is contested. Ernst & Young submits that its draft report was never finalized because the Singh brothers never gave Ernst & Young the information it needed to finalize the report and never asked it to finalize the report. Indeed, Dietrich J. held that the parties themselves – that is, the estate and Mr. Singh – decided not to finalize the draft valuation report from Ernst & Young, and that the Plaintiffs themselves asked that the property be sold.

[11] Ernst & Young now moves for summary judgment of the action against it on the basis that the limitation period has lapsed, and, in the alternative, on the basis that the agreement entered into by the Plaintiffs and Ernst & Young contains a waiver of liability. For the reasons below, I grant the motion.

Whether This Is an Improper Partial Summary Judgment Motion

[12] As a preliminary matter, the Plaintiffs claim that this is an improper motion for partial summary judgment, because if successful it will only extract one Defendant, Ernst & Young, from the action. They state that Ernst & Young will be an important witness in the action against the remaining Defendants in any event.

[13] I do not agree. While partial summary judgment motions are to be rare, they may be appropriate where there is an issue that “may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost-effective manner” (Butera v. Chown, Cairns LLP, 2017 ONCA 783, para 34). The issue before is precisely such an issue.

[14] The claim against Mr. Schwartz and Chaitons takes issue with the legal advice provided to the Plaintiffs in the estate application; by contrast, the claim against Ernst & Young is focused narrowly on the draft appraisal report, which the Plaintiffs claim is responsible for their having overpaid when they settled the estate application. The action against Ernst & Young is concerned only with the content, reliability, and finality of the Ernst & Young report.

[15] In my view, the Ernst & Young report and the impugned legal advice from Chaitons and Mr. Schwartz have nothing to do with one another. The two claims are therefore properly severable.

[16] Moreover, the summary judgment motion is concerned only with the limitation period in respect of the claim against Ernst & Young. The Court of Appeal for Ontario has held that the expiry of a limitation period against a defendant “is precisely the type of discrete issue that could be separated from other claims in the action and ‘dealt with expeditiously and in a cost effective manner’” (Sirois v. Weston, 2017 ONCA 1002, para 13, citing Butera, at para. 34). Notably, that case involved multiple defendants, only one of whom sought summary judgment based on a limitation period, as is the case here.

[17] In my view, therefore, it is appropriate to consider partial summary judgment in the context of this litigation as a whole.

The Law

[18] On a motion for summary judgment, I must first determine, based only on the record before me, whether there is a genuine issue requiring a trial. If there appears to be a genuine issue requiring a trial, I am to determine if the need for a trial could be avoided by using my enhanced powers under either rule 20.04(2.1) or 20.04(2.2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Rule 20.04(2.1) empowers me to weigh evidence, evaluate a deponent’s credibility, and draw reasonable inferences from the evidence. The power set out in rule 20.04(2.2) allows me to order that oral evidence be presented by one or more parties. I may use these powers at my discretion, as long as their use is not contrary to the interests of justice – that is, as long as they 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 (Hyrniak v. Mauldin, 2014 SCC 7, para 66).

[19] The responding party must set out, by affidavit or other evidence, specific facts that show there is a genuine issue requiring a trial (r. 20.02(2)). I am entitled to presume that the parties have put forth their best evidence on the motion and that if the case were to proceed to trial, no additional evidence would be presented (TD Waterhouse Canada Inc. (TD Waterhouse Private Investment Advice) v. Little, para 15, citing Rogers Cable TV Ltd. v. 373041 Ontario Ltd.).

[20] Summary judgment will be appropriate where (1) I am able to make the necessary findings of fact, based on the record and my enhanced powers under rules 20.04(2.1) and 20.04(2.2); (2) I am able to apply the law to the facts; and (3) the motion process is a proportionate, more expeditious, and less expensive means to achieve a just result than going to trial (Hyrniak, at para. 49).

[21] The Court of Appeal for Ontario, in Nasr Hospitality Services Inc. v. Intact Insurance, 2018 ONCA 725, para 35, confirmed that in a motion for summary judgment based on a limitation period, I am to determine whether the record before me enables me to make the following findings of fact, with the degree of certainty required by Hyrniak:

a. The date on which the plaintiff is presumed to know the matters listed in subsections 5(1)(a)(i)-(iv) of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B − i.e., that the injury, loss or damage had occurred, that it was caused by or contributed to by an action or omission by the person against whom the claim is made, and that a proceeding would be an appropriate means to seek to remedy it;

b. the date on which the plaintiff acquired this actual knowledge under s. (5)(1)(a), in the event the evidence proves the contrary of the presumptive date;

c. the date of objective knowledge under s. 5(1)(b), based on the reasonable person with similar abilities and circumstances analysis; and

d. which of the actual knowledge and objective knowledge dates is earlier, for that will be the day on which the plaintiff discovered the claim for purposes of applying the basic limitation period.

[22] The onus lies on Ernst & Young to show there is no issue requiring trial with respect to the expiry of the limitation period (AssessNet Inc. v. Taylor Leibow Inc., 2023 ONCA 577, para 34). The Plaintiffs do not have to have perfect or complete knowledge for the limitation period to start running. Rather, they must have “enough facts on which to base [their] allegations” (The Investment Administration Solution Inc. v. Silver Gold Glatt & Grossman LLP, 2011 ONCA 658, para 15).

The Applicable Limitation Periods

[23] The limitation periods applicable in this matter are contained in Ernst & Young’s Statement of Work with the Plaintiffs, including its attached Schedules (together, the “Agreement”).

[24] Under the Limitations Act, 2002, parties to a business agreement may vary the limitation periods set forth in the Limitations Act, 2002, as long as the provision in the business agreement that purports to do so describes a limitation period “in clear language”, identifies the scope of the application of that limitation period, and excludes the operation of other limitation periods (s. 22(5)-1).

[25] The Agreement provides in relevant part:

You shall make any claim relating to the Services or otherwise under this Agreement no later than one year after you became aware (or ought reasonably to have become aware) of the facts giving rise to any alleged such claim, and in any event, no later than two years after the completion of the particular Services (and the parties agree that the limitation periods established by the Limitations Act, 2002 (Ontario) or any other applicable legislation shall be varied and/or excluded accordingly).

[26] This provision meets the requirements set forth in the Limitations Act, 2002 for a proper variation of the statutory limitation period. It describes a limitation period in clear language (“You shall make any claim relating to the Services or otherwise under this Agreement no later than one year after you became aware (or ought reasonably to have become aware) of the facts giving rise to any alleged such claim, and in any event, no later than two years after the completion of the particular Services”). It makes clear that the limitation period applies to “any claim relating to the Services or otherwise under this Agreement”. It excludes the operation of other limitation periods (“the parties agree that the limitation periods established by the Limitations Act, 2002 (Ontario) or any other applicable legislation shall be varied and/or excluded accordingly”).

[27] As such, the contractual one-year and two-year limitation periods properly vary those in the Limitations Act, 2002 and apply to this case.

[28] In the alternative, if the contractual limitation periods do not apply, the applicable limitation period is the two-year limitation period established in sections 4 and 5 of the Limitations Act, 2002, plus the 182-day time period for which limitation periods were suspended due to COVID-19 (O. Reg. 73/20). This statutory limitation period started running when the claim was “discovered” pursuant to section 4. A claim is “discovered” on the date on which the plaintiff first knew or ought to have known that the injury, loss, or damage had occurred; that it was caused or contributed to by an act or omission of the defendant; and that a proceeding would be an appropriate means to remedy it (section 5(1)). A plaintiff is presumed to know these matters on the day the act or omission at issue took place, unless the contrary is proved (section 5(2)).

Whether the Limitation Periods Have Passed

[29] I find that both the one-year and two-year limitation periods established in the Agreement, and the two year and 182-day limitation period established in the Limitations Act, 2002, have passed.

The Contractual Limitation Periods

[30] The one-year limitation period in the Agreement started running when the Plaintiffs “became aware (or ought reasonably to have become aware) of the facts giving rise to” their claim against Ernst & Young. The Plaintiffs’ claim against Ernst & Young is based on the draft report, which the record indicates the Plaintiffs received, and discussed with their counsel, on February 8, 2019. In my view, they became aware, or ought reasonably to have become aware, of the facts giving rise to their claim against Ernst & Young on that date. All the alleged deficiencies of the Ernst & Young report that form the basis of their allegations were evident from the report itself. If the Plaintiffs wished to persuade me otherwise, they were required to do so by way of affidavit or other evidence; they did not do so. As such, the one-year clock started running when they received the report, and they had until February 7, 2020 to commence their claim. But they did not commence it until September 12, 2022.

[31] The two-year limitation period in the Agreement started running upon “the completion of the particular services” provided by Ernst & Young. The draft report was issued by Ernst & Young on February 1, 2019. The provision of the report represented the completion of Ernst & Young’s work for the Plaintiffs. As such, the two-year clock started running on that date, and the Plaintiffs had until January 31, 2021 to commence their claim. They did not commence it in time.

[32] The Plaintiffs submit that whether Ernst & Young was functus – that is, whether it had completed providing its services when it issued its draft report on February 1, 2019, as it claims – is an issue for trial. I do not agree. There is no evidence before me to suggest that Ernst & Young provided any services after February 1, 2019. I infer from this that Ernst & Young did not provide any services after that date. If the Plaintiffs wished to demonstrate otherwise, they should have tendered evidence on this point on this motion, in which they are required to put their best foot forward. They did not do so.

[33] Thus, based on the record before me, I am able to make factual findings that the one-year and two-year limitation periods established in the Agreement began running on February 8, 2019 and February 1, 2019 respectively. I am able to apply the law to the facts to determine that those limitation periods expired before the action was commenced on September 12, 2022. I am accordingly satisfied that there is no issue requiring trial with respect to the expiry of these contractual limitation periods. Granting summary judgment in respect of the expiry of these limitation periods is a proportionate, more expeditious, and less expensive means to achieve a just result than going to trial.

The Statutory Limitation Period

[34] In the alternative, if the contractual limitation periods do not apply, the Plaintiffs are still beyond the two-year and 182-day statutory limitation period.

[35] The crux of the Plaintiffs’ action is that the Plaintiffs paid too much to settle the application commenced by the estate. The latest date on which they knew, or should have known, that they allegedly overpaid to settle the matter was the date on which they knew of the settlement agreement, which was February 28, 2020. The limitation period passed on August 29, 2022. The action was not commenced until after that date.

[36] The Plaintiffs submit that there is a genuine issue regarding trial in respect of the expiry of the statutory limitation period. They assert that they did not actually know about the settlement agreement until June 30, 2020. Mr. Singh deposes: “Mr. Schwartz did not report to us until June 30, 2020. … [The] June 30 letter is the first time we learned that a settlement agreement had been made by Mr. Schwartz with Deol’s lawyer.”

[37] Although Mr. Singh’s evidence points to an issue that could require trial, in my assessment, the need for a trial may be avoided by using my enhanced powers under rule 20.04(2.1) to weigh evidence, evaluate a deponent’s credibility, and draw reasonable inferences from the evidence. Using this power 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.

[38] In assessing the deponents’ credibility, I note that the June 30, 2020 letter to which Mr. Singh refers in his affidavit is not appended to his affidavit. A letter from June 3, 2020 is included in Mr. Schwartz’s affidavit. Based on its content, it appears to be the letter that Mr. Schwartz states was dated June 30, 2020. The Plaintiffs do not attempt to clarify this discrepancy. The discrepancy, coupled with the failure to subsequently explain it, undermines Mr. Singh’s credibility.

[39] In weighing the evidence, I find that Mr. Singh’s claim that he did not learn about the settlement until June 30, 2020 is plainly contradicted by the balance of the evidentiary record.

[40] For instance, Mr. Schwartz provides affidavit evidence that the settlement occurred on February 28, 2020 “after protracted settlement negotiations and several offers by the Plaintiffs”. He deposes, “During the litigation, the Plaintiffs made settlement offers that were rejected. By February 2020 their properties were about to be sold. The Plaintiffs desperately wanted to reach a settlement, to avoid the sales of their properties. The settlement was made on their instructions. They were most definitely aware in February 2020 that the settlement had occurred.” Mr. Schwartz was not cross-examined on this evidence. Mr. Singh does not respond to it in his own evidence. It is uncontroverted.

[41] Mr. Schwartz’s docket entries make clear that Mr. Singh was closely involved in the settlement discussions, discussed the settlement agreement with Mr. Schwartz, and instructed Mr. Schwartz to accept the settlement offer that he now disavows. The docket entries state as follows:

• February 24, 2020: “Telephone call with Jasvinder Singh. Receipt of instructions to offer to settle at 1.5 million.”
• February 25, 2020: “Telephone calls with … Jasvinder Singh. Receipt of instructions from Jasvinder to agree to advance of money and pay interest even if there is no deal;”
• February 26, 2020: “Numerous calls and correspondence with … Jasvinder Singh … concerning possible settlement;”
• February 27, 2020: “Meeting with Jasvinder Singh. Receipt of instructions to accept offer.”
• February 28, 2020: “Receipt and review correspondence from [Ms. Deol’s counsel] confirming settlement. Telephone call with Jasvinder Singh.”

[42] The Plaintiffs do not challenge the veracity of these docket entries or otherwise attempt to address this evidence.

[43] The record also contains an email exchange between Ms. Deol’s counsel and Mr. Schwartz on February 26 and 27, 2020, copied to Mr. Singh, confirming that all material terms of the settlement, including the $1.7 million settlement amount, had been agreed to. That these emails were copied to Mr. Singh is reflected by the fact that the emails were later printed from his daughter’s email account, through which Mr. Singh communicated with Mr. Schwartz.

[44] Additionally, the record contains evidence that the Singh brothers arranged for private mortgage financing to pay for the settlement after it was entered into (and well before June 2020). This evidence includes email correspondence from the Singh brothers’ real estate lawyer indicating that he knew there was a settlement and that the funds from the mortgage transaction he was working on would be used to pay that settlement. This evidence, too, goes unanswered by the Plaintiffs.

[45] When I weigh Mr. Singh’s claim that he did not understand there was a concluded settlement until June 30, 2020 against the evidence summarized above, I find that I must reject Mr. Singh’s claim. I find that Mr. Singh knew about the settlement agreement at the time it was entered into on February 28, 2020. His claim to the contrary mis-states the date of the correspondence that is central to his position, inexplicably and without any subsequent clarification. It also fails to acknowledge, let alone grapple with, the extensive evidence that he was directly and actively involved in settlement discussions and instructed his counsel to accept the settlement offer that ultimately formed the basis of the settlement agreement.

[46] I am accordingly able to make the necessary finding of fact, based on the record and my enhanced powers to weigh evidence and evaluate credibility, that the two-year and 182-day limitation period under the Limitations Act, 2002 and O. Reg. 73/20 began running on February 28, 2020, when the settlement agreement was entered into. I am able to apply the law to that factual finding to determine that this limitation period expired before the action was commenced on September 12, 2022. I am accordingly satisfied that there is no issue requiring trial with respect to the expiry of this limitation period. Granting summary judgment in respect of its expiry is a proportionate, more expeditious, and less expensive means to achieve a just result than going to trial.

Conclusion

[47] Accordingly, I grant Ernst & Young’s motion for summary judgment. I conclude that there is no genuine issue requiring trial that the applicable one- and two-year limitation periods set forth in the Agreement have passed. In the alternative, there is no genuine issue requiring trial that the two-year and 182-day limitation period in the Limitations Act, 2002 and O. Reg. 73/20 has passed.

[48] In light of my finding, I do not need to consider Ernst & Young’s alternative submission that there is no genuine issue requiring trial because the Agreement contains a waiver of liability.

[49] The parties are to work together to resolve costs. If they are unable to do so within 30 days, they are to contact my judicial assistant and I will set a timetable for costs submissions.

Rohit Parghi
Date: 2025-05-05