Court File and Parties

Court File No.: CV-21-00663592-0000
Date: 2025-06-10
Ontario Superior Court of Justice

Between:
Maurizio Sprovieri, Plaintiff
– and –
James Christopher Demetriou a.k.a. James Demetriou a.k.a. Jim Chris Demetriou a.k.a. Jim C. Demetriou a.k.a. Jim Chris Demetriou a.k.a. Demetri Demetriou a.k.a. Demetrious Demetriou a.k.a. Demetrios Demetriou, Defendant

Appearances:
Daniel Litsos and Howard Manis, for the Plaintiff
Kris Borg-Oliver, for the Defendant

Heard: November 27, 2024, June 5, 2025
Judge: Papageorgiou

Overview

[1] There is a saying that you should never loan money to a friend. This case shows why.

[2] The plaintiff and defendant became friends in 2000, when they started working together at the Woodbine Casino for the Ontario Lottery and Gaming Corporation (the “OLG”). They went to each other’s weddings, shared the births of their children, traveled together, and met regularly for dinner at the Keg in Woodbridge where the defendant would always pay.

[3] The defendant excelled at OLG and eventually became the Director of Security at IBM for the entire Caribbean and all of Canada. The plaintiff was a primary reference for these positions. The plaintiff looked up to the defendant because he was a well accomplished man, was a university graduate, was related to individuals associated with the police, had a nice family, and was a well-rounded respectable person.

[4] The plaintiff loaned approximately $168,000 to the defendant many years ago to help him out.

[5] The plaintiff provided evidence of the advance of the loans and detailed evidence and calculations that show that as of August 5, 2022, the total amount outstanding on such loans, inclusive of the contractual interest rate of 10 percent, was $314,278.52. He says that he used his home equity line of credit and his unsecured line of credit to loan the funds and that he is in serious financial jeopardy because of the defendant’s failure to repay the loans.

[6] The defendant filed no evidence disputing the loans or the amount outstanding. His position is that irrespective, the matter is statute barred pursuant to the Limitations Act, 2002, SO 2002, c 24, Sch B because the claim was issued on June 7, 2021 which is more than two years after the loans became due.

[7] The plaintiff asserts that he fits within certain provisions of the Limitations Act, such that this matter is not statute-barred.

[8] Both parties agreed to have this dispute decided by way of summary judgment and there are cross-motions before me.

[9] Given that the defendant did not dispute the plaintiff’s evidence that the financial transactions between them are loans and that these are in default, the plaintiff would be entitled to summary judgment absent the limitation period issue.

Decision

[10] For the reasons that follow, I grant the defendant summary judgment and dismiss this proceeding. I dismiss the motion brought by the plaintiff.

Issues

• Issue 1: Were the loans demand loans?
• Issue 2: Was the commencement of the limitation period suspended by virtue of acknowledgements of the debt or part payments?
• Issue 3: Was the plaintiff’s claim not discoverable until sometime after June 8, 2019, such that commencing the Claim on June 7, 2021 was within the two-year limitation period?
• Issue 4: Given the above analysis, what are the presumptive, actual and objective knowledge dates to take into account in determining whether the claim is statute barred?

Analysis

The Summary Judgment Test

[11] In accordance with r. 20.04(2)(a) of the Rules of Civil Procedure, RRO 1990, Reg 194 (the “Rules”), 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.”

[12] In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and a judge may exercise any of the following powers under r. 20.04(2.1): (1) weighing the evidence; (2) evaluating the credibility of a deponent; and (3) drawing any reasonable inference from the evidence.

[13] The Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, para 49, explained:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process: (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[14] In order to defeat a motion for summary judgment, the responding party must put forward some evidence to show that there is a genuine issue requiring a trial. A responding party cannot rest solely on allegations in a pleading. Each side must “put their best foot forward” with respect to the existence or non-existence of material issues to be tried: Mazza v. Ornge Corporate Services Inc., 2016 ONCA 753, para 9. Furthermore, “a summary judgment motion cannot be defeated by vague references as to what may be adduced if the matter is allowed to proceed to trial”: Diao v. Zhao, 2017 ONSC 5511, para 18.

The Applicable Statutory Provisions

[15] Sections 4 and 5 of the Limitations Act set out the basic limitation period as follows:

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.

Demand obligations

(3) For 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.

(4) Subsection (3) applies in respect of every demand obligation created on or after January 1, 2004.

[16] The way these provisions work is that ss. 5(1)(a)(i) to (iv) set out the way in which a court determines when a person first knew about a claim. The factors are conjunctive; for a person to be found to know about a claim, all aspects of 5(1)(a)(i) to (iv) must be satisfied.

[17] Then pursuant to 5(1)(b) the court will then consider when a reasonable person with the abilities and circumstances of the plaintiff first ought to have known of the matters in ss. 5(1)(a)(i) to (iv).

[18] The earlier of these dates is when the time starts ticking.

[19] However, s. 13 impacts the determination of when an act or omission has occurred.

[20] Pursuant to s. 13, where there has been a part payment in respect of a liquidated damages claim or a written acknowledgement of such debt, the act or omission upon which the claim is based is deemed to have occurred on the date of the payment.

[21] The following are the relevant parts of s. 13:

Acknowledgments

13 (1) If a person acknowledges liability in respect of a claim for payment of a liquidated sum, the recovery of personal property, the enforcement of a charge on personal property or relief from enforcement of a charge on personal property, the act or omission on which the claim is based shall be deemed to have taken place on the day on which the acknowledgment was made.

(2) An acknowledgment of liability in respect of a claim for interest is an acknowledgment of liability in respect of a claim for the principal and for interest falling due after the acknowledgment is made.

(8) Subject to subsections (9) and (10), this section applies to an acknowledgment of liability in respect of a claim for payment of a liquidated sum even though the person making the acknowledgment refuses or does not promise to pay the sum or the balance of the sum still owing.

(9) This section does not apply unless the acknowledgment is made to the person with the claim, the person’s agent or an official receiver or trustee acting under the Bankruptcy and Insolvency Act (Canada) before the expiry of the limitation period applicable to the claim.

(10) Subsections (1), (2), (3), (6) and (7) do not apply unless the acknowledgment is in writing and signed by the person making it or the person’s agent.

(11) In the case of a claim for payment of a liquidated sum, part payment of the sum by the person against whom the claim is made or by the person’s agent has the same effect as the acknowledgment referred to in subsection (10).

Issue 1: Were the loans demand loans?

[22] As explained by the Court of Appeal in T.O. Estate v. D.O., 2024 ONCA 603, where a creditor has suffered a loss, injury, or damage in respect of a loan that has not be repaid, “the trial judge [is] required to determine the terms of repayment in order to apply the limitation period.” Where no time is fixed for repayment, the loan is repayable on demand.

[23] Determining whether the loans were demand loans is important because pursuant to s. 5(3) of the Limitations Act, the limitation period for a demand loan does not begin until after a demand has been made.

[24] There are no written terms dictating the repayment terms and there are no signed loan agreements.

[25] The defendant did not recall the terms of the advances made to him. However, the plaintiff gave clear evidence that the three loans he made to the defendant had the following terms:

• June 1, 2008: $90,000 at an interest rate of 10 percent with a one-year term (the “First Loan”). Therefore, it was repayable on June 1, 2009.
• June 13, 2012: $55,000 at an interest rate of 10 percent with a six-month term (the “Second Loan”). Therefore, it was repayable on December 13, 2012.
• January 26, 2016: $23,000 at an interest rate of 10 percent with a two-month term (the “Third Loan”). Therefore, it was repayable on March 26, 2016. Notably, in his affidavit the plaintiff also specifically says that this loan matured on March 26, 2016, which also means it had a fixed term.

[26] Since, by the plaintiff’s own admission, the loans had a fix term for repayment, these were not demand loans.

[27] Even if they were, the plaintiff gave clear evidence that he made a demand by email on December 21, 2009, that the First Loan was to be repaid within 30 days. Even if the limitation period began to run from this time, absent other considerations, it would expire on December 21, 2011.

[28] With respect to the Second Loan, the plaintiff also gave evidence that by January of 2013, the defendant had failed to pay the principal sum “despite repeated demands.” Therefore, he admitted he made demands as of that date, such that even if the commencement of the limitation period were extended to when the demand was made, absent other considerations, it still would have expired by January of 2015.

[29] With respect to the Third Loan, the evidence is not as clear. The plaintiff stated:

By October of 2016 I had come to realize that the Defendant was refusing or neglecting to repay any of the indebtedness owed to me. Although the Defendant had represented that he would take steps to refinance one or both of his properties, or take a loan from his parents, he took no such steps.

[30] While this evidence does not say he made a demand, it certainly implies that he had been seeking repayment of all of his loans, and that the defendant refused, which reasonably means that he had been demanding repayment.

[31] I reject the plaintiff’s belated argument that in the absence of a written loan agreement, the court should infer that the loans must have been demand obligations. This argument is inconsistent with the plaintiff’s own evidence. I agree that he cannot sue on the basis of an oral agreement and then simultaneously disavow the terms of such oral agreement.

[32] I also reject the argument that after the plaintiff demanded payment, there was an implicit agreement that the loans changed into demand obligations, in reliance on James v. Chedli, 2021 ONCA 593, para 57.

[33] The motion judge in James v. Chedli had granted summary judgment in favour of the debtor, finding a note statute barred. However, he did not take into account a letter written by the creditor to the debtor which memorialized an agreement “to further extend the loan to you on a month-to-month basis to hereafter become due on demand”: at para. 15. This was because the debtor had died and there was no independent corroboration of the debtor’s agreement to the conversion of the debt from a term loan to a demand loan, as required by s. of the Evidence Act, RSO 1990, c E.23.

[34] The court allowed the appeal and held that there was indeed corroborating evidence from a witness who testified that he had conversations with the debtor following the letter, where he said that he intended to repay it. Although the witness did not say that the debtor specifically discussed the conversion of the note to a demand note, the court concluded that one could infer that the debtor believed he remained bound to repay it, which indicated that he accepted that its terms had been revised. As well, the debtor had made a number of significant payments after the letter. The court concluded that together, this evidence corroborated the debtor’s assent to the alteration of the note, including the conversion to a demand note.

[35] Critically, there is no letter here from anyone, or even reference to any conversation, which shows that either one of the parties made any agreement to convert the loans to demand loans.

[36] As will be seen below, the defendant made part payments and acknowledged the debt. There is a separate argument made about the effect of such part payments and acknowledgements pursuant to s. 13 of the Act. I reject the argument that part payment and/or an acknowledgement on their own could constitute implicit conversion of a term loan to a demand loan. The legislature has already addressed how part payments and acknowledgments impact limitation periods. Section 13 specifically provides that part payments and acknowledgements reset the limitation clock to the date of payment or acknowledgement.

[37] The argument that the occasional payments and confirmation of the debt on their own converted these obligations to demand obligations, if credited, would undermine s. 13 of the Limitations Act. In fact, it would mean that this provision is unnecessary with respect to loans, which are liquidated debts.

[38] The plaintiff was required to put his best foot forward. The plaintiff failed to put forward any evidence that the parties had specifically turned their mind to the conversion of the loans to demand loans or evidence of their conduct that showed that they had implicitly agreed to convert the loans to demand loans.

Issue 2: Was the commencement of the limitation period suspended pursuant to s. 13 by virtue of acknowledgements of the debt or part payments?

[39] In this case, even though the defendant did not repay the loans on the due date, he continued to make ongoing payments from 2009 until January 1, 2018.

[40] Accordingly, pursuant to s. 13, these part payments extended the commencement of the limitation period to the date of the last payment made – January 1, 2018 such that this extended limitation period would have expired on January 1, 2020.

[41] The plaintiff also says he was continually phoning the defendant and having oral conversations that he attests to where the defendant acknowledged the debt. Even if this is true, for s. 13 to apply, the acknowledgements must be in writing.

[42] The plaintiff points to additional written acknowledgements of the debt made by the defendant, based upon text communications in 2021.

[43] Courts have recently found that text messages can meet the “in writing” requirement of s. 13(10) under certain circumstances: 1475182 Ontario Inc. o/a Edges Contracting v. Ghotbi, 2021 ONSC 3477, paras 37-50.

[44] Even still, these text communications do not assist the plaintiff.

[45] In Michel v. Spirit Financial Inc., 2020 ONCA 398, paras 15-16, the Court of Appeal cited Cross Bridges Inc. v. Z-Teca Foods Inc., 2016 ONCA 27, para 10, for the proposition that for an acknowledgement to reset the limitation clock, it must be made before the expiry of the limitation period.

[46] All of the written communications produced in the record, and upon which the plaintiff relies in this regard, occurred from 2021 and afterwards. At that time, any extended limitation period based upon the January 1, 2018 payment had already expired as of January 1, 2020 and as such, any acknowledgements could not revive the expired limitation period.

[47] The plaintiff also says that the defendant made a payment of $500 towards the debt the day after the Statement of Claim was served in 2021. The plaintiff has provided evidence of a written communications with the defendant, where they discussed the defendant paying $500 after the Statement of Claim was issued. The plaintiff texted the defendant a blank cheque so that he would have his banking information and filed evidence of a $500 deposit into the plaintiff’s account made at a branch located 5 miles from the defendant’s house the following day. The defendant baldly denies that he made this payment, but the text communications do not contain any refusal by the defendant to pay this sum and reasonably support the conclusion that he intended to and then did deposit that money into the plaintiff’s bank account. Frankly, it stretches credulity that the parties had all of these communications and that someone else deposited this $500 into the plaintiff’s account for some other reason immediately after the exchange of these texts.

[48] However, even this evidence does not assist the plaintiff, because Michel v. Spirit Financial Inc. was a case that involved the effect of partial payments pursuant to s. 13. The court specifically held that, like acknowledgements, partial payments could not extend a limitation period pursuant to s. 13 if such payments were made after the limitation period had already expired.

Issue 3: Was the plaintiff’s claim not discoverable until after June 8, 2019, such that commencing the claim on June 7, 2021 was within the two-year limitation period?

[49] In reliance on s. 5(1)(a)(iv) of the Limitations Act, the plaintiff argues that having regard to the nature of the loss, he did not know that an action would be an appropriate way to address the loss until sometime after June 8, 2019. He also argues that a reasonable person with his abilities and in his circumstances would not have known that a proceeding was an appropriate means to seek a remedy until after June 8, 2019. This would mean that the limitation period was not expired at the time of the issuance of the claim on June 7, 2021.

[50] In Das v. Kay, 2021 ONCA 565, paras 25-28, relying on Sosnowski v. MacEwen Petroleum Inc., 2019 ONCA 1005, para 16, the Court of Appeal cited the following principles in interpreting s. 5(1)(a)(iv):

(a) First, the determination of whether a proceeding is an appropriate means to seek to remedy an injury, loss, or damage depends on the factual and statutory context of each case.

(b) Second, two non-exclusive factors can operate to delay the date on which a claimant would know that a proceeding would be an appropriate means to remedy a loss: (i) when the plaintiff relied on the defendant’s superior knowledge and expertise, particularly where the defendant has taken steps to ameliorate the plaintiff’s loss; and (ii) where an alternative dispute resolution process offers an adequate remedy, and it has not been completed.

(c) Third, “appropriate” means that it is legally appropriate to bring a proceeding, rather than practically advantageous. This third principle excludes from consideration many practical and tactical reasons a claimant might have for not commencing a proceeding at an earlier time when it was legally appropriate to do so, such as the belief that the claim might be difficult to prove. Put differently, “[a]ppropriate does not include an evaluation of whether a civil proceeding will succeed.”

[51] See also Beniuk v. Leamington (Municipality), 2020 ONCA 238, paras 60-61.

[52] At para. 42, the court in Das v. Kay clarified that parties are not restricted to (i) and (ii) with respect to the second principle, but outlined the parameters:

[I]f they cannot bring themselves within those two categories they must propose another set of circumstances in which it could be said, on a principled basis, that a person with a claim could not have known that an action would be an appropriate means to remedy the injury, loss or damage.

[53] The plaintiff only relies upon the principled basis cited in Das.

[54] The plaintiff relies upon the following facts in support of his argument that he did not have actual knowledge that an action was the appropriate way of addressing his loss until sometime after June 8, 2019.

[55] As noted, he and the defendant had been very close friends, and he trusted him to repay the funds. The fact that they were friends is an insufficient basis to establish that the plaintiff could not have known that a proceeding was an appropriate means to address his loss. I note that in any event, the record supports the fact that their friendship was not as close in later years when the defendant defaulted on the loans and that the plaintiff’s trust in him significantly diminished. There are several communications from the plaintiff in this regard, but on October 27, 2016 he sent the defendant a text that said, “you are a scammer, liar and thief….Please do not make any attempt to contact me, my wife Rosina or any of my three children.”

[56] He also relies on the fact that he had been in constant contact with the defendant by telephone, text message, and email for several years where they discussed the debt. Between 2018 and 2021, he and the defendant would speak multiple times per month and the majority of these conversations centred around the defendant repaying him. He says that on each occasion, the defendant would reassure and promise him that he would make things right and repay all indebtedness owed. Phone records corroborate approximately 1,000 phone calls from the plaintiff to the defendant during this period. (I add here that this also militates against the argument that the Loans were implicitly converted to demand loans. Following up in this way is inconsistent with the Loans being demand loans. If they were truly demand loans and the plaintiff had not yet made demands that would start the limitation period, there would be no reason to follow up).

[57] However, any principled basis must be in accordance with the direction in Sampson v. Empire (Binbrook Estates) Ltd., 2016 ONSC 5730, cited in Presley v. Van Dusen, 2019 ONCA 66, para 25, where the court held that ongoing communications, investigations, or negotiations are not sufficient to bring a matter within s. 5(1)(a)(iv). Additionally, I take the point that the plaintiff’s ongoing calls to the defendant to follow up do show that he was worried about not being repaid.

[58] The plaintiff also relies upon the fact that in 2017, he arranged for the defendant to meet with Joanne Russo, a licenced insolvency trustee. The defendant prepared a Statement of Affairs dated April 10, 2017 which acknowledged the indebtedness to the plaintiff and his wife in the amount of $195,000. “By stating that he was indebted to me in the sum of $195,000 on the Statement of Affairs in 2017, he acknowledged that interest was accruing on the Loans.”

[59] At best, the fact that the defendant acknowledged a debt in 2017 could only restart the two-year limitation period from the date of the Statement of Affairs. This restarted limitation period would expire on April 10, 2019 which is more than two years before the plaintiff issued his Statement of Claim.

[60] The plaintiff also says that at some time not specified in the affidavit material, a friend named Domenic Basile (a lawyer) offered to assist the plaintiff and defendant in resolving their differences and structuring a payment plan for the Loans. The plaintiff says he discussed this at length with Domenic, including repayment timelines and monthly interest payments. Domenic went to see the defendant to provide an update, but ultimately no agreement was ever drafted because the defendant assured them that he was in the process of securing financing. I note here that the defendant’s position is that Domenic was his lawyer and that he went to see him because the plaintiff had retained Mr. Manis. He says that he asked Domenic to speak to the plaintiff to get all the facts and put them on the table with Domenic being the “middle” person.

[61] Again, this on its own, is insufficient to constitute on a principled basis, that a person with a claim could not have known that an action would be an appropriate means to remedy the injury, loss or damage. This is nothing more than ongoing discussions or negotiations.

[62] He also relies upon his knowledge that sometime after the Third Loan, the defendant had commenced an action against an insurer, AIG Insurance Co.

[63] In the AIG action, the defendant alleged that a ring worth $550,000 was stolen from him during a trip in 2015. The plaintiff says that the defendant told him that this was an insurance claim and that the proceeds from that proceeding would be used to repay the entire indebtedness. The plaintiff says that the defendant referred to the AIG action as the “big thing” that would allow him to repay all indebtedness owed to him. He said that they spoke on an ongoing basis to discuss this proceeding and how the proceeds would be used to repay the debt.

[64] The defendant denied that he ever told the plaintiff that he would use the proceeds of the AIG action to pay back the outstanding amounts.

[65] I held a mini trial because the conflict in the evidence could not be resolved on the record.

[66] The defendant had brought a motion for summary judgment in the AIG action which was argued on November 20, 2018. There are phone records that show that the parties had lengthy conversations that day that lasted 24 minutes in the morning and that there were multiple conversations around that time. There was a call after the hearing which is documented on the phone records where the plaintiff testified the defendant said that everything went well and it was 99.9 per cent a matter of time before he could repay all the money from the proceeds of this matter.

[67] On January 24, 2019 the court delivered its decision awarding the defendant summary judgment. The plaintiff says that the defendant phoned him and said, “book that trip you’ve been planning with your family it is just a matter of time.” The plaintiff says he felt tremendous relief and that he would periodically google the defendant’s name and he would see the press reports about the results of the AIG action, and it was black and white that the defendant won the case.

[68] AIG subsequently appealed the decision, and the defendant phoned the plaintiff and told him there was a slight bump in the road but nothing to worry about as he had won but there was a simply procedural issue.

[69] On October 22, 2019, the appeal was granted such that the summary judgment was reversed, and the matter was sent to trial. At that point, the plaintiff says that the defendant phoned him and said that the AIG action was not over, he would still be pursuing it. However, he became suspicious because of circumstances in the defendant’s life related to a criminal prosecution of him for theft of a ring that arose sometime in 2020. I note parenthetically that this is the second incident involving the defendant and an alleged ring theft.

[70] When he spoke to the defendant about this issue, in or around 2020, the defendant told him that he had obtained $50,000 from his father to pay a lawyer to assist with this criminal prosecution. This was concerning to the plaintiff because it showed that the defendant had access to funds and yet had never asked his father to pay the plaintiff.

[71] I found the plaintiff to be a credible witness. He was consistent. He gave significant details of the conversations that they had that were consistent with documentary evidence, their communications and phone records. He did not waiver at all.

[72] The defendant, however, was not a reliable or credible witness for a number of reasons. He could not recall very much when shown texts and communications that favoured the plaintiff, but for some reason could definitively recall that he made no promises related to the AIG action.

[73] Although this was not in his affidavit, he alleged that he did not repay the money because the money was never guaranteed to be returned. He says that he and the plaintiff were partners in a venture where he would use the money to gamble in Las Vegas. This does not appear in any of the multiple communications before me. As well, it is completely inconsistent with entering into a loan agreement, promising to pay and all the written communications where he promised to repay. He could not explain why he had been paying interest for so many years if this was some kind of a partnership where there was no guarantee of repayment.

[74] He also gave untruthful evidence at his discovery. He said that he was working as a private investigator at the time of the discovery when in fact he was an employee at a business. At the mini trial, the plaintiff presented him with a Statement of Claim that he issued suing for wrongful dismissal when he was terminated for allegedly making false Sun Life insurance claims. When asked why he was not truthful, he alleged that the plaintiff had been making threats, telling him that he had friends in organized crime, and he was afraid to disclose where he worked. This makes little sense since the plaintiff knew where the defendant and his wife and three children lived which surely would have been a bigger concern if the plaintiff was threatening him, and yet he did not move.

[75] When asked how anyone could believe that he was telling the truth about issues in this case given his past conduct, he said he has “no answer for that.”

[76] Nevertheless, I do not accept in all the circumstances that the plaintiff, or at least “a reasonable person in his circumstances and with his background, would not have known that an action would be an appropriate way to address the loss until the results of the AIG appeal were known.

• The plaintiff was concerned about the defendant’s intentions to repay the Loans from the outset based upon written communications. After the defendant defaulted on the First Loan, the plaintiff wrote the defendant a very assertive text on December 21, 2009, where he noted that he had consulted with a lawyer and threatened litigation:

I started giving you the benefit of the doubt and after we spoke last week about getting together to discuss things, I thought the time had come whereby you were ready to resolve the issues. I was obviously wrong. In fact, the whole thing made me come to the realization all over again that you are nothing but a liar and a very dishonest one at that…I have also come to realize that all the proposals you brought forward to rectify our situation, i.e. purchase of house, were just ways to buy yourself more time. Well the time is up. You. [Sic] Have given me no other choice…I have been in contact with a lawyer and needless to say, I did just want to let you know how serious this whole situation is to me and my family…Having said this, my lawyer asked that I provide you with one last opportunity to resolve matters in a private manner, albeit in writing as I am doing. It has been suggested that I provide you with 30 days to repay all outstanding loans. If this time should elapse without resolution, which I suspect will, then the legal process will begin. Again, you leave me no choice.

• After defaults in two more loans, there would be much more to be concerned about.
• Given his threat of litigation in 2009, the plaintiff knew after the first default that a proceeding was an appropriate way to address the loss. He must have continued to know that after the second and third defaults. And he appears to understand litigation and have access to a lawyer.
• The plaintiff admitted that there were many plans and specific promises made by the defendant about how he would repay the plaintiff that did not come to fruition in the past. As noted above, in 2016 the defendant discussed the possibility of refinancing a property he owned to repay the Loans and/or obtaining the money from his parents, but he never did so. In 2018 the defendant took out a loan from Pyxus and said he would give a big chunk to the plaintiff to make up some interest payments, if the plaintiff gave him a reference. Pyxus phoned the plaintiff who did give the defendant a reference for that loan, and he still did not make good on his promise.
• As noted above, in his first affidavit the plaintiff gave evidence that by 2016 he came to the realization that the defendant was refusing or failing to pay the indebtedness. He testified that he came to this realization because the defendant would not take steps to refinance his properties or take out a loan from his parents to repay the Loans.
• In 2017 the defendant made only two interest payments and in 2018 he made only one. If the plaintiff was concerned in 2016 that the defendant was not going to pay him, when he was receiving monthly payments in 2016, he or a reasonable person would have more reasons to be concerned that he would not be paid by 2018.
• He admitted that he started the action because the defendant had been stringing him along for years.
• The plaintiff is somewhat sophisticated. He is 52 years old. He has a college diploma and has been a senior compliance director at OLG as an anti-money laundering analyst for 26 years. As noted above, he found a trustee for the defendant, he knows what a Statement of Affairs is, and the written communications show that he knows enough to think about consents to judgment.

[77] It is not clear on this record why the plaintiff did not move sooner.

[78] Even if the defendant was making promises related to the AIG action, which I accept, this would not satisfy the test pursuant to Das, because the plaintiff still would have known that an action was an appropriate method to address his loss before June 8, 2019.

[79] The promise the defendant made to pay from the AIG proceeds is really nothing more than another unfulfilled promise to pay. It is really no different than the defendant’s previous unfulfilled promises to pay by remortgaging his home, by obtaining funds from his parents or from loan proceeds from Pyxus. Relying on this to extend the limitation period is really the equivalent of saying that ongoing communications and promises to pay can extend the limitation period pursuant to the principled exception in Das, which is simply not the law. If this was the law, then every limitation period could be gotten around by credible evidence of promises to pay. A promise to pay is akin to an acknowledgement of a debt. There are already provisions in the Limitations Act that address when acknowledgements will impact a limitation period in s. 13 and the plaintiff is unable to satisfy that test.

[80] I also do not accept that even the combination of all the reasons set out related to his friendship and other matters that he would not have known or that a reasonable person in his circumstances would not have known that an action was an appropriate way to address his loss before June 8, 2019. I do accept that he is now saying that, and it is not that I do not find him credible. It is that in my view he has now convinced himself that he did not know, but the evidence in the record persuades me that he must have known. Again, even if he did not have actual knowledge, a reasonable person would have known.

[81] Concluding that the limitation period does not apply in these circumstances would go well beyond the reasoning in Das, and the many other cases decided pursuant to s. 5(1)(a)(iv) that have held that a principled basis cannot be based on only ongoing communications, investigations, or negotiations Sampson v. Empire at para. 25.

Issue 4: Given the above analysis, what are the presumptive, actual, and objective knowledge dates to take into account in determining whether the claim is statute barred?

[82] In Nasr Hospitality Services Inc. v. Intact Insurance, 2018 ONCA 725, paras 34-35 the court stated that a typical summary judgment motion involving the basic limitation period requires the court to determine whether the record enables making a series of findings of fact on the following:

a. Presumption: the day on which the act or omission on which the claim is based occurred is the date the plaintiff is presumed to know of the matters listed in ss. 5(1)(a)(i)-(iv) of the Limitations Act;

b. Actual knowledge: the date of actual knowledge under s. 5(1)(a), but only if the plaintiff’s evidence proves contrary to the presumptive date;

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

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

[83] Before the part payments, the presumptive date on which the claim is based would have been the dates each of the Loans came due and were not repaid as follows:

• First Loan: June 1, 2009 when the loan came due such that it would have expired on June 1, 2011
• Second Loan: December 13, 2012 when the loan came due such that it would have expired on December 13, 2014
• Third Loan: March 26, 2016 when the loan came due such that it would have expired on March 26, 2018

[84] However, because of the part payment on January 1, 2018, pursuant to s. 13 of the Act, the act or omission is deemed to have occurred on the day on which the last part payment was made, which is January 1, 2018. Therefore, this is the presumptive date when the plaintiff would have known of the matters set out in ss. 5(1)(a)(i)-(iv) such that that it would have expired on January 1, 2020.

[85] It is more difficult to pinpoint when precisely the plaintiff had actual knowledge a proceeding was an appropriate means to seek to remedy an injury, loss, or damage.

[86] He knew this in 2016 when he said he realized that the defendant was not going to pay him, but then the part payment deemed the act or omission to have occurred on February 1, 2018. In my view, this means the plaintiff is entitled to assert that the relevant actual or objective knowledge date cannot be prior to the date of the deemed act or omission. It would make little sense to find that the plaintiff had either actual or constructive knowledge before the act or omission was deemed to have occurred.

[87] Given all the past broken promises, at the latest, shortly after the last part payment after January 1, 2018, the plaintiff knew that an action was an appropriate way to address the loss because the defendant failed to make any further payments. I would estimate that he would have known this on February 1, 2018 such that it would expire on February 1, 2020.

[88] Even if the plaintiff was duped, and he did not have actual knowledge that a proceeding was an appropriate means of addressing the loss until, a reasonable person in his circumstances and with his abilities would certainly have understood this shortly after January 1, 2018, when the defendant again stopped making payments, given the long history of broken promises. I would estimate that the reasonable person would know this by February 1, 2018 such that the limitation period would expire on February 1, 2020.

[89] The actual and objective knowledge dates are the same, but if I am wrong about the plaintiff’s actual knowledge date, the objective date would trump the actual notice date in any event.

[90] Since the action was commenced on June 7, 2021, which is well after February 1, 2020, the action is out of time.

Conclusion

[91] I have great empathy for the plaintiff. The defendant has taken advantage of his friendship. The defendant misled the plaintiff as to the reason for the loans and did string him along for years. In the end, what has come out is that the defendant used the money to go and gamble in Las Vegas and not for the urgent circumstances he alleged at the time.

[92] Unfortunately for the plaintiff, the law is clear; the plaintiff has not provided any facts or law that would permit me to not apply the limitation period in this case. This outcome will feel unfair and extremely harsh to the plaintiff, particularly since the defendant has not disputed the debt at all in any other way, apart from his 11th hour evidence at the mini trial related to their alleged partnership which I do not accept.

[93] However, limitation periods serve an important role in the administration of justice. They encourage the resolution of disputes in a timely manner. They balance the individual’s right to justice with the needs of systemic finality. Without limitation periods, there would never be any finality for any defendant. Claims could be launched ten, twenty, or thirty years from an occurrence, when a defendant may have lost relevant documents and when witness memories have faded. This would also impact the justice system as old claims could flood the system stretching already scarce resources.

[94] Every case that is dismissed because of a limitation period is a case where the matter is not heard or determined on its merits, like this one. The legislature has spoken. The underlying policy served by limitation periods is sufficient to justify the dismissal of even meritorious claims where a limitation period has not been complied with.

[95] What is troubling is that in this case it is clear that the plaintiff would have won on the merits. Nevertheless, this does not change the analysis or the outcome. Limitation periods must be applied equally and consistently to all, even when it is apparent that a defendant would have been liable. Otherwise, every limitation period issue will turn into a battle over the merits and the policy behind limitation periods will be undermined.

Costs

[96] Although I am bound by the legislation and authorities to dismiss this claim, it is my preliminary assessment that this is an appropriate case for a no costs order. The defendant has succeeded in this matter at the expense of a person who simply tried to help a friend. The impact of this good deed will be with the plaintiff for a long time both financially, and I’m sure, emotionally.

[97] If the parties insist on making cost submissions, they can be made as follows: the defendant within 5 days and the plaintiff within a further 5 days, each to be no longer than 5 pages.

Papageorgiou J.
Released: June 10, 2025