



COURT OF APPEAL FOR ONTARIO

CITATION: Haunert-Faga v. Caprara, 2016 ONCA 266

DATE: 20160411

DOCKET: C61352

Sharpe, Juriansz and Roberts JJ.A.

BETWEEN

Christine Marie Haunert-Faga

Plaintiff (Respondent)

and

Giuliana
    Caprara in her personal capacity and in the capacity of Estate Trustee

without
    a Will of the Estate of Bruno Caprara, deceased, Stephen Leonardo Glen Faga,
    Marco Caprara, Christian Caprara, Faga Group Limited, Faga Group Construction
    Limited, Domenico Faga, Rhodena Macdonald and
Presta Caparrotta LLP

Defendants (
Appellant)

Maurice J. Neirinck, for the defendant, Giuliana Caprara,
    and for the appellant, Faga Group Construction Limited

Sean Lawler, for the appellant, Presta Caparrotta LLP

Robert Rueter and Sara J. Erskine, for the respondent,
    Christine Marie Haunert-Faga

Heard and released orally: April 7, 2016

On appeal from the judgment of Justice Michael A. Penny
    of the Superior Court of Justice, dated October 23, 2015.

ENDORSEMENT

[1]

The appellants moved for summary judgment to dismiss the claims on the
    grounds that they were barred by the applicable statutory limitation period.
    The parties agreed that all of the evidence necessary for resolution of the
    limitations issue was before the court and that the trial judge would be in no
    better position to decide it. The appellants now appeal from the motion judges
    dismissal of their motion.

[2]

The issue before the motion judge was whether the respondent had
    commenced her claim within two years of the time she knew or ought to have
    known, through the exercise of reasonable diligence, the facts necessary to
    support her claims.

[3]

The motion judge found that the respondent lacked standing to bring the
    fraudulent conveyance claim prior to the appointment of the receiver, given the
    elaborate corporate structure used by her former husband and his family. The
    motion judge also found that prior to the respondents unsuccessful attempt to
    execute her divorce judgment and prior to the receivers investigation, she did
    not have the required information relating to fraudulent intent in relation to
    the challenged transfer. The motion judge further found that the appellants had
    concealed facts necessary to support the respondents claims and that the
    respondent only acquired knowledge of those concealed facts following the
    receivers investigation. At para. 55, the motion judge added that prior to the
    receivers investigation, Presta Corporation and Giuliana Caprara denied any
    fraudulent intent.

[4]

The motion judge gave careful reasons explaining the basis for these challenged
    findings. They are supported by the evidence and entitled to deference on
    appeal. He identified the correct legal test to determine the issue of
    discoverability. His application of the facts he found to that test was a
    finding of mixed fact and law that also attracts deference on appeal. We cannot
    agree that there is any basis to interfere with his determination that the appellants
    failed to establish a limitation defence.

[5]

Costs to the respondent fixed in the amount of $20,000, inclusive of
    disbursements and applicable taxes, payable in equal amounts by the appellants.

Robert
    J. Sharpe J.A.

R.G.
    Juriansz J.A.

L.B.
    Roberts J.A.


