



COURT OF APPEAL FOR ONTARIO

CITATION: Ridel v. Goldberg, 2017 ONCA 739

DATE: 20170925

DOCKET: C63469

Sharpe, Rouleau and van Rensburg JJ.A.

BETWEEN

Jean-Marc Ridel, Nadine Suzanne Josephine Ridel
    and Marc H. Ridel

Plaintiffs (Appellants)

and

Robert Goldberg

Defendant (Respondent)

Philip Anisman, for the appellants

Niklas Holmberg, for the respondent

Heard: September 18, 2017

On appeal from the order of Justice Glenn A. Hainey of
    the Superior Court of Justice, dated February 28, 2017.

REASONS FOR DECISION

[1]

The sole issue on this appeal is whether the
    motion judge erred in ruling on a Rule 21.01(1)(a) motion that the action was
    barred by the two-year limitation period.

[2]

The facts before the motion judge were taken
    exclusively from the pleadings.

[3]

This action was commenced more than two years after the
    appellants obtained a trial judgment against e3m Investments Inc. on April 17,
    2013 for negligence, breach of contract and breach of fiduciary duty in
    relation to their investment accounts but within two years of the dismissal of
    e3ms appeal against that judgment.

[4]

In the action against e3m, the trial judge found that
    the respondent Robert Goldberg, the president, CEO and sole director of e3m,
    had abdicated his responsibility to supervise the employee who handled the
    appellants accounts.

[5]

After e3ms appeal was dismissed, e3m made an
    assignment in bankruptcy. The appellants then obtained an order pursuant to s.
    38 of the
Bankruptcy and Insolvency Act,
R.S.C., 1985, c. B-3,
    authorizing the assignment to them of the trustees cause of action for damages
    incurred by e3m as a result of the respondent Goldbergs breach of duties of
    care and supervision. They then commenced this action.

[6]

It is common ground that the appellants claim is governed by a
    two-year limitation period. P
ursuant to s. 12(1) of the
Limitations
    Act,
2002
, S.O. 2002,
    c. 24, Sched. B,
where, as in this case, a plaintiff
    claims
through a predecessor in right, title or interest
    the plaintiff shall be deemed to have knowledge of the matters referred to in
    s. 5(1)(a) on the earlier of the day the predecessor first knew or ought to
    have known of those matters and the day the person claiming first knew or
    ought to have known of them.

[7]

Section 5(1) provides as follows:

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).

[8]

The appellants concede that both they and their
    predecessor had knowledge of items (i) to (iii) more than two years before the
    date on which this action was commenced and argue that the case falls to be
    decided under s. 5(1)(a)(iv), namely, the date on which it was known that,
    having regard to the nature of the injury, loss or damage, a proceeding would
    be an appropriate means to seek to remedy it.

[9]

Before the motion judge, the focus of the
    appellants argument was the relevance of e3ms appeal to the calculation of
    the limitation period. They argued that until the appeal was decided, it would
    not have been appropriate for them to bring this action. Before this court, the
    appellants shifted ground.
They no longer focus on the fact that an
    appeal was outstanding but argue that it cannot be said that e3m could or
    should have considered an action against Goldberg  e3ms own directing mind 
    until after e3ms bankruptcy. They rely on s. 5(1)(a)(iv) and argue
that, having regard to the nature of the injury, loss or damage, an
    action by e3m against Goldberg would not have been an appropriate means to
    seek to remedy it.
The appellants also submit that
    before the bankruptcy, it would have been impossible for them to assert the
    claim they now assert on e3ms behalf.

[10]

The respondent submits that the appellants knowledge of the elements
    defined in s. 5(1) is dispositive of this appeal, relying on
Indcondo
    Building Corporation v. Sloan
, 2010 ONCA 890, 103 O.R. (3d) 445. However,
    in
Indcondo
, the action commenced under s. 38 asserted the same claim
    the s. 38 claimant had previously pleaded. Moreover,
Indcondo
did not
    have to consider the significance of s. 5(1)(a)(iv).

[11]

In our view, it would not be appropriate for this court to rule on the
    issues raised by the parties on the limited record that is before us. As
    indicated, this was a Rule 21.01(1)(a) motion. We have only the pleadings.
    There is no evidence before the court concerning what has become the main focus
    of the appellants submission, namely, the relationship between e3m and
    Goldberg and the control he is alleged to have exercised over e3m in relation
    to the claim advanced by the appellants. Nor is the record adequate to permit
    us to properly consider the application of
Indcondo
in the specific
    context of the facts of this case.

[12]

In
Salewski v. Lalonde
, 2017 ONCA 515, this court observed, at
    para. 45, that as the discoverability issue is one of mixed fact and law, there
    may well be no circumstance in which a limitation issue under the Act can
    properly be determined under rule 21.01(1)(a) unless pleadings are closed and
    it is clear that the facts are undisputed. In our view, a more complete record
    is required to permit the court to determine the issues raised by the parties
    on this appeal.

[13]

Accordingly, without ruling in any way on those issues, we allow the
    appeal and set aside the order of the motion judge. This order does not purport
    to determine the limitation issue; rather it may be determined in the normal
    course, and on a proper factual basis, in these proceedings.

[14]

The
    appropriate order as to costs is that the costs of the motion below and the
    costs of this appeal (agreed to be $10,000) be left in the discretion of the
    trial judge.

Robert J. Sharpe
    J.A.

Paul
    Rouleau J.A.

K.
    van Rensburg J.A.


