



COURT OF APPEAL FOR ONTARIO

CITATION: 1853491 Ontario Inc. v. Regional Waste North Inc.,
    2019 ONCA 37

DATE: 20190123

DOCKET: C65329

Rouleau, van Rensburg and Zarnett JJ.A.

BETWEEN

1853491
    Ontario Inc. and 2278385 Ontario Limited,

operating as Kirby Waste
    Transfer Solutions

Plaintiffs (Respondents)

and

Regional Waste North Inc., and Alex Sivitelli

Defendants (Appellants)

AND BETWEEN

Regional
    Waste North Inc., Alex Sivitilli,

Regional Waste Transit
    Inc. and Snowpro Winter Services Ltd.

Plaintiffs by
    Counterclaim (Appellants)

and

1853491
    Ontario Inc., 2278385 Ontario Inc. c.o.b. as

Kirby
    Waste Transfer Solutions, 1854488 Ontario Limited,

Vincenzo
    Ussia Senior, Vincenzo Ussia Junior, Michael Ussia,

Lucia
    Ussia, 1116941 Ontario Limited, Verde Excavating Ltd.,

A1A Demolition Inc., and
    Public Disposal and Recycling Inc.

Defendants by
    Counterclaim (Respondents)

Michael Kestenberg, for the appellants

Adam Marchioni and Mauro Marchioni, for the respondents

Heard: January 7, 2019

On appeal from the order of Justice John R. McCarthy of
    the Superior Court of Justice, dated April 6, 2018.

REASONS FOR DECISION

[1]

The parties were involved in a waste disposal and waste transportation
    business from 2011 to early 2014, when the relationship broke down. By that
    point, the respondent Mr. Vincenzo Ussia, whose company 2278385 Ontario Limited
    carried on business as Kirby Waste Transfer Solutions (Kirby Waste), alleged
    that Mr. Alex Sivitillis company Regional Waste North Inc. (Regional
    Waste) owed them in excess of $350,000. When Mr. Ussia threatened to sue, Mr.
    Sivitilli responded by alleging a beneficial interest in companies owned by
    members of the Ussia family, including Kirby Waste.

[2]

On January 14, 2014, Mr. Ussia wrote to Mr. Sivitilli, denying that
    Mr. Sivitilli had any such beneficial interest in the Ussia companies.

[3]

On March 20, 2014, Kirby Waste and 1853491 Ontario Inc. issued their
    claim for damages on various bases and for a declaration that the appellants Regional
    Waste and Mr. Sivitilli had no beneficial interest in the respondent companies.
    Those appellants defended, including by alleging they had such an interest. They
    did not, at that time, include any counterclaim.

[4]

On March 3, 2016, the appellants Regional Waste and Mr. Sivitilli,
    together with two other parties, issued a counterclaim joining additional
    parties to the counterclaim and claiming for payment of landscaping services
    allegedly provided and for a declaration that the plaintiffs by counterclaim
    held a beneficial interest in various Ussia companies.

[5]

The defendants to the counterclaim (the respondents in this court) moved
    for summary judgment on the counterclaim on the basis that the claims advanced
    were time barred.

[6]

The motion judge found that the counterclaim was a separate claim from
    the respondents claim in the action and that the respondents to the
    counterclaim were seeking complete summary judgment on the counterclaim. Moreover,
    even if the motion could be defined as a partial summary judgment motion, there
    was a discrete issue in this case: whether the counterclaim was defeated by the
    passage of the limitation period. It was therefore an appropriate case for
    partial summary judgment.

[7]

The motion judge then held that the landscaping services dated from 2012
    and 2013 and, as a result, the limitation period for these claims had expired
    long before the counterclaim was issued. As for the beneficial interest claims,
    the motion judge found that the limitation period began to run on January 14,
    2014 following the respondents unequivocal denial of Mr. Sivitilli or his
    companies having any interest in the Ussia companies. The motion judge,
    however, went on to find that the parties had reached an informal agreement to
    refer the dispute to a chartered accountant. This agreement, in the motion
    judges view, suspended the running of the limitation period pursuant to s. 11
    of the
Limitations Act 2002
, S.O.
    2002, c. 24
.

[8]

The motion judge then determined that the agreement to attempt
    resolution was terminated by February 3, 2014 at the latest when Mr. Ussia made
    it clear that he withdrew from the agreement. As a result, the tolling of the
    limitation period ended on that date. Because the counterclaim was issued on March
    3, 2016  beyond the two-year limitation period as extended by the period of
    tolling  the motion judge dismissed the counterclaim as being statute barred.

[9]

The appellants do not appeal the dismissal of their counterclaim for
    payment of the landscaping services. On appeal, they argue that the motion
    judge erred with respect to his decision on the motion for summary judgment of
    the claims for beneficial interest in the various Ussia companies. They contend
    that the motion judge erred by failing to consider and apply all of the
    principles from this courts decision in
Butera v. Chown, Cairns LLP
, 2017 ONCA 783
, 137 O.R. (3d) 561, and
    in finding that the counterclaim involved an issue that was separate and
    discrete from those raised in the main action. The appellants also argue that
    the motion judge erred in finding that the counterclaim was statute barred. They
    argue that the tolling period continued until March 20, 2014, when the
    respondents signalled that discussions were clearly at an end by issuing their
    claim.

[10]

The
    central issue in this appeal is a narrow one, the duration of the tolling
    period. The parties agree that the appellants claims contained in the
    counterclaim were discovered on January 14, 2014 and that the counterclaim
    advancing those claims was issued March 20, 2016. They also agree that the
    limitation periods running was tolled on January 14 when an agreement to have
    a third party, Mr. Genua, assist in resolving the claim as contemplated by s.
    11 of the
Limitations Act
was reached. The only issue is whether the
    motion judge erred in finding that the tolling agreement ended on February 3,
    2014 at the latest.

[11]

In
    that regard, the appellants submit that, in reaching the conclusion that the
    agreement to have Mr. Genua involved in resolving the dispute ended on February
    3 at the latest, the motion judge did not consider all of the correspondence and
    e-mails between the parties.

[12]

We
    disagree. In his reasons, the motion judge focused on two e-mails that, in his
    assessment, made it clear that the resolution process had terminated by
    February 3 at the latest. He quoted from the February 3, 2014 e-mail sent by the
    respondents solicitor to the appellants solicitor, stating as follows:

I have recently received information from Joe Genua, confirming
    that your client never held an interest in Kirby. Based on that, can we please
    meet and work out the accounting as between the two separate parties?

[13]

The
    motion judge also referred to a February 10, 2014 e-mail from the respondents
    solicitor to the appellants solicitor that served to confirm that, as far as
    the respondents were concerned, the discussions had ended. That e-mail stated:

Ari your client does not own 50% of Kirby and please stop
    making these self serving statements. The issue is one that the parties
    obviously disagree upon. Perhaps we can agree on the wording of a joint
    application and move on.

[14]

The
    motion judges assessment of the exchanges between the parties, including his
    finding that he was unable to find that any emails or actions by [Sivitilli]
    throughout February or March of 2014, served to reinvigorate the section 11
    resolution window. Indeed by February the 22nd, 2014, [Sivitilli] was
    threatening to lodge a complaint to the Institute of Chartered Accountants
    about Genua are entitled to deference and we find no basis to interfere.

[15]

On
    appeal, the appellants referred the court to several e-mails which they submit
    show that the discussions were not at an end until the claim was issued on March
    20, 2014. We disagree. These e-mails do no more than suggest that the
    appellants were not prepared to accept that the resolution attempts were at an
    end. This, however, is irrelevant. Subsection 11(1) of the
Limitations Act
provides that when an agreement to have an independent third party resolve the
    claim is entered into it tolls the running of the limitation period, but only
    until:

(a)

the date the claim is resolved;

(b)

the date the attempted resolution
    process is terminated; or

(c)

the date a party terminates or
    withdraws from the agreement.

The motion judges finding that the respondents
    terminated the agreement and that the termination was clearly and unequivocally
    communicated to the appellants by February 3 is well supported by the record.

[16]

The
    appellants then argue that, in any event, the motion judge erred in that he
    ought to have left the issue of when the tolling period ended to be determined
    at trial. This, they submit, is because the motion judge must have rejected
    Mr. Sivitillis affidavit evidence to find that the tolling only extended
    to February 3. Specifically, the application judge must have rejected Mr.
    Sivitillis assertion that correspondence with Mr. Genua and between the
    lawyers regarding attempts to resolve continued into early March and all
    discussions broke down on or around March 20, when the claim was issued. The
    assessment of Mr. Sivitillis credibility was better left to trial when there
    would be a complete record and there would be no risk of the trial judge making
    an assessment of Mr. Sivitillis credibility that conflicted with the motion
    judges assessment.

[17]

We
    disagree. In reaching his conclusion that the tolling period ended on February
    3, the motion judge relied on the record of exchanges between the parties. He
    did not make a finding as to Mr. Sivitillis credibility, nor was any such
    finding necessary. The fact that Mr. Sivitilli may have believed that
    discussions were not at an end cannot operate so as to keep the tolling
    agreement in place in the face of the respondents clear decision to terminate the
    agreement, which they communicated unequivocally to the appellants.

[18]

Given
    that the motion judges finding on the limitation issue completely resolved the
    counterclaim, we also reject the appellants submission that this was not an
    appropriate case for summary judgment, partial or otherwise.

[19]

We
    acknowledge that striking the counterclaim does not resolve the main action and
    also acknowledge that many of the issues the appellants sought to raise in the
    counterclaim will nonetheless have to be litigated as part of the appellants defence
    of that action. Striking the counterclaim does, however, finally resolve issues
    raised in the counterclaim that are not raised in the defence and will thereby
    result in a saving of legal costs and trial time.

[20]

The
    decision should not be taken to prejudice in any way the ability of the
    appellants who are defendants to the main action to raise defences in the main
    action nor does it limit the remedies the trial judge may order in that
    proceeding.

[21]

For
    these reasons, the appeal is dismissed. Costs to the respondents are fixed in
    the amount of $12,500 inclusive of disbursements and applicable taxes.

Paul
    Rouleau J.A.

K. van Rensburg J.A.

B. Zarnett J.A.


