



COURT OF APPEAL FOR ONTARIO

CITATION: Kondratiev v. Boyko, 2017 ONCA 444

DATE: 20170601

DOCKET: C63277

Hourigan, Benotto and Roberts JJ.A.

BETWEEN

Alexey Kondratiev and Smart Games Canada, Inc.

Plaintiffs (Appellants)

and

Oleg Boyko

Defendant (Respondent)

Michael D. Wright and Geneviève Cantin, for the
    appellants

Orestes Pasparakis and Andrea Campbell, for the
    respondent

Heard: May 23, 2017

On appeal from the order of Justice E. Stewart of the Superior
    Court of Justice, dated December 21, 2016, with reasons reported at 2016 ONSC 6822.

REASONS FOR DECISION

[1]

The appellants appeal the order of the motion judge striking their
    statement of claim without leave to amend, pursuant to r. 21 of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194.  The statement of claim was
    struck on the grounds that it is time-barred and an abuse of process.

[2]

With the exception of para. 39 of the statement of claim, we see no
    basis to interfere with the motion judges order.

[3]

The other factual allegations made against the respondent with respect
    to events arising before 2013 are identical to the allegations made against him
    in a proceeding against related parties in 2009, in which he was not named as a
    party.  It is clear on the face of the pleadings, therefore, that, as the
    motion judge determined, those pre-2013 claims against the respondent were
    discovered more than two years before the commencement of this action.  We see
    no error in the motion judges rejection of the appellants evidence, as not
    credible, that the 2013 claims were not discovered until 2015.  This
    determination was open to her on the record.  Accordingly, those claims are
    time-barred by virtue of s. 4 of the
Limitations Act
, 2002
,
    S.O. 2002, c. 24, Sched. B.

[4]

We agree with the appellants submission that the motion judge did not
    consider whether the new claim against the respondent, arising out of the
    dissolution of one of the corporate defendants in 2013, as set out in para. 39
    of the statement of claim, was also statute-barred or an abuse of process.  We
    note that in his notice of motion, the respondent only sought to strike paras.
    26 to 38 of the statement of claim as statute-barred and similarly focussed his
    abuse of process grounds on the argument that the claims were out of time.

[5]

On the face of the pleading of para. 39, which, for the purpose of a
    motion under r. 21, the motion judge had to take as true, this claim would not
    be statute-barred because it was not discovered by the appellants until October
    2013.  As a result, on its face, it would not be doomed to fail, as the
    motion judge found was the case with respect to the other pleaded causes of
    action, nor in those circumstances would it constitute an abuse of process.

[6]

Given her other conclusions, the motion judge did not address the respondents
    submissions that para. 39 is unintelligible and fails to identify the necessary
    material facts to support a claim against the respondent, nor the appellants
    motion that the 2015 action be consolidated with the other related proceedings. 
    In consequence, those issues remain to be determined.

Disposition

[7]

Accordingly, we allow the appeal to the extent that we set aside the
    motion judges order with respect to para. 39 of the statement of claim.  If
    pursued, the parties respective motions in relation to para. 39 of the
    statement of claim and consolidation are remitted for hearing, as the civil
    team leader of the Superior Court of Justice may direct.

[8]

In light of the appellants modest success on appeal, we do not disturb
    the costs award of the motion judge nor do we make any award of costs on
    appeal.

C.W. Hourigan J.A.

M.L. Benotto J.A.

L.B. Roberts J.A.


