



COURT OF APPEAL FOR ONTARIO

CITATION: Caruso v. Bortolon, 2021 ONCA 842

DATE: 20211123

DOCKET: C68970

Gillese, Trotter and Nordheimer JJ.A.

BETWEEN

Gaspare Caruso

Plaintiff (Appellant)

and

Robert Bortolon, Dean Bortolon,
    John Hanna Nissan and Martin Citron

Defendants (Respondents)

Matthew Kersten, for the appellant

Adam Jarvis, for the respondents

Heard: November 18, 2021 by
    video conference

On appeal from the order of Justice Gordon
    D. Lemon of the Superior Court of Justice, dated December 17, 2020, with
    reasons reported at 2020 ONSC 7933.

REASONS
    FOR DECISION

Introduction

[1]

The appellant commenced an action against the
    defendants alleging that they defrauded him out of shares he claimed to own in
    1947755 Ontario Limited (the company). He pleaded that Robert Bortolon
    fraudulently executed documents that stripped him of his shares on January 25,
    2017. He commenced his action more than two years later, on April 23, 2020.

[2]

The respondents defended the claim by asserting
    that the appellant was never a shareholder in the company; instead, he was a
    temporary director and was properly removed from that position on January 27,
    2017. They further pleaded that the action is statute barred:
Limitations
    Act, 2002
, S.O. 2002, c. 24, Sched. B.

[3]

The respondents successfully moved for summary
    judgment on the basis that there was no genuine issue for trial on the
    limitations issue. The appellant now challenges the fairness of the
    proceedings, the correctness of the decision to dismiss his action, and applies
    to adduce fresh evidence.

[4]

We refuse to admit the fresh evidence and we
    dismiss the appeal.

The Refusal to Grant an Adjournment

[5]

The appellant submits that the motion judge
    erred in not granting him an adjournment to file further documentation to
    demonstrate fraudulent activity on the part of the respondents in January of
    2017.

[6]

In refusing the adjournment request, the motion
    judge carefully examined the lengthy history of the proceedings leading up to
    the hearing date on November 30, 2020. The motion had already been
    adjourned a number of times. The case was ready to be argued on August 24, 2020
    but was adjourned due to a conflict of interest on the part of the appellants previous
    counsel, an issue raised by the presiding judge (not the motion judge). At that
    time, the presiding judge ordered that the parties were not permitted to file
    further materials on the motion.

[7]

The case was spoken to again on September 25,
    2020 and on October 19, 2020. On the latter occasion, new counsel for
    the appellant brought a motion to permit examinations for discovery to take
    place prior to the hearing of the motion. The request was denied. On November
    16 and 26, 2020, appellants counsel confirmed that he was prepared to proceed with
    the motion on November 30, 2020.

[8]

In light of this history, the motion judge refused
    the adjournment request. He concluded that it was necessary for the motion to
    proceed before him that day. Moreover, as the motion judge observed in his
    written reasons: The issue for the motion is not whether Mr. Caruso was
    deprived of his shares in September of 2017. The issue is whether he should
    have brought the action before it was commenced in April of 2020. The
    materials that the appellant sought to file on the day of the motion had no
    bearing on this issue.

[9]

We see no error in the motion judges decision
    to refuse an adjournment. The motion judge considered the adjournment request
    against the backdrop of the multiple proceedings between the parties and the
    previous delays. This was a discretionary decision that is entitled to
    substantial deference on appeal:
Laski v. BMO Nesbitt Burns Inc
.
,
    2020 ONCA 300, at para. 13.

[10]

This ground of appeal is dismissed.

The Action is Time-Barred

[11]

On the limitations issue, the motion judge
    reviewed the documents tendered by the parties and concluded that the
    appellants alleged injury, loss, or damage was discoverable by February of
    2017. Although the appellant swore in an affidavit that he only discovered his
    claim in 2019, the motion judge found that this evidence was undermined by the
    appellants affidavit and cross-examination in a related proceeding that
    demonstrated his awareness of his claim in February of 2017. This was supported
    by evidence of the appellants former counsel that he was retained by the
    appellant as early as February 2017.

[12]

The motion judge also considered the appellants
    failure to reply to a Request to Admit certain facts that related to the
    limitations issue. The deemed admissions arising from this failure supported
    the conclusion that the appellant was aware of his alleged injury, loss, or
    damage by February or March of 2017.

[13]

The appellant submits that the motion judge
    erred in relying on the appellants deemed admissions because he was
    self-represented when he was served with the Request to Admit. However, the
    appellant subsequently retained counsel and was represented at the hearing of
    the summary judgment motion. Counsel did not seek to withdraw the appellants
    deemed admissions, neither on consent, nor with leave of the court:
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194, r. 51.05.

[14]

The totality of the evidence supported the
    motion judges conclusion that the action was time-barred. As of February 2017,
    the appellant was possessed of information that amounted to more than mere
    suspicion of a potential claim. Indeed, in a letter sent on his behalf on
    February 15, 2017, referring to Dean Bortolon holding himself out as the
    sole shareholder of the company, his lawyer asserted: we believe this is a
    total fraud. That the appellant may have subsequently gathered more evidence
    in support of his claim did not detract from the motion judges conclusion that
    the claim itself was discoverable in February 2017, and that it was
    time-barred. In the circumstances, there was no genuine issue for trial.

The Fresh Evidence Application

[15]

The appellant applies to adduce fresh evidence
    on appeal. In our view, this is nothing more than an attempt to circumvent the motion
    judges refusal to grant an adjournment, which we find to have been justified.
    Through proper diligence, this material could have been tendered on the summary
    judgment motion in accordance with the schedules set by other judges leading up
    to the hearing date. Moreover, this material does not bear on the correctness
    of the motion judges analysis of the limitations issue.

[16]

The application to adduce fresh evidence is dismissed.

Conclusion

[17]

The appeal is dismissed.

[18]

Given the inappropriate allegations of
    misconduct made against respondents counsel, both in the appellants affidavit
    and in his Factum, we award costs to the respondents on a substantial indemnity
    basis in the amount sought by the respondent, namely $9,000, inclusive.

E.E. Gillese
    J.A.

Gary Trotter
    J.A.

I.V.B.
    Nordheimer J.A.


