



COURT OF APPEAL FOR ONTARIO

CITATION: Velgakis v. Servinis, 2017 ONCA 541

DATE: 20170627

DOCKET: C63138

LaForme, Hourigan and Paciocco JJ.A.

BETWEEN

Ippokratis Velgakis

Plaintiff (Respondent)

and

Gus Servinis, Rose T. Filipchuck and Laura
    Iliagviev (also known as Leora Ilia also known as Leora Laichter) carrying on
    business (variously) as Papefinch Dental, Pape Finch Dental and Pape Finch
    Dentistry

Defendants (Appellants)

and

Diana Lam

Third Party

Michelle Gibbs, for the appellants

Bruce Day, for the respondent

Heard: June 26, 2017

On appeal from the order of Justice Mario D. Faieta of
    the Superior Court of Justice, dated November 25, 2016.

REASONS FOR DECISION

[1]

The respondent felt his lower denture work was improperly done and
    needed to be fixed. He commenced an action in Small Claims Court for $25,000. T
he appellants filed a defence and issued a third party
    claim.

[2]

The respondent then commenced this action for $100,000 of general
    damages and $50,000 of special damages in the Superior Court against the same
    parties, with the addition of one defendant. He moved to transfer the action
    from the Small Claims Court and/or consolidate the actions in the Superior
    Court.

[3]

The appellants motion for summary judgment on the basis the action was
    time-barred, was dismissed. They appeal that decision and essentially complain
    that the motion judge misinterpreted and misapplied the law relating to
    discoverability. We disagree.

[4]

The sole issue before the motion judge was whether the respondents
    action was statute-barred because the two-year limitation period established by
    s. 4 of the
Limitations Act
, S.O. c. 24, Sched. B (the Act), had
    expired.

[5]

Under s. 5 (1)(a) of the Act, a claim is discovered on the date the
    claimant knew, or ought to have known, the material facts giving rise to the
    claim, and that a proceeding would be an appropriate means to seek to remedy
    the claim. When an action is appropriate depends on the specific factual
    setting of each individual case:
407 ETR Concession Company Limited v. Day
,
    403 D.L.R. (4th) 485, at paras. 33-34. Finally, when s. 5(1)(b) of the Act

is
    applied, deciding whether legal action would be appropriate takes into
    account what a reasonable person with the abilities and in the circumstances of
    the plaintiff ought to have known  a modified objective test:
Presidential
    MSH Corporation v. Marr Foster & Co. LLP
, 2017 ONCA 325, at para. 18.

[6]

In
Presidential MSH
, at paras. 17-20, this court clarified
    certain principles governing cases such as the one before us on the issue of
discoverability
:

1.       A
    legal proceeding against an expert professional may not be appropriate if the
    claim arose out of the professionals alleged wrongdoing but may be resolved by
    the professional himself or herself without recourse to the courts, rendering
    the proceeding unnecessary.

2.       The
    defendants ameliorative efforts and the plaintiffs reasonable reliance on
    such efforts to remedy its loss are what may render the proceeding premature.
    The plaintiff and defendant must have engaged in good faith efforts to right
    the wrong it caused.

[7]

For our purposes, the motion judge correctly applied the modified
    objective test and made three critical findings:

(i)       It
    was appropriate for the respondent to make reasonable efforts to have his
    complaints regarding his dentures resolved on a consensual basis without
    quickly resorting to potential litigation.

(ii)      It
    was appropriate for the respondent to rely on the appellants agreement 
    indicating that repairs may be made at no additional fee  and pursue a
    consensual resolution of his complaints. And,

(iii)     The
    first day on which a reasonable person in the respondents circumstances ought
    to have known that a proceeding would be an appropriate means to seek to remedy
    this claim was the date the respondents request to have his dentures repaired
    at no cost to him had been refused by all the appellants.

[8]

The motion judge ultimately concluded the date of refusal by the
    appellants meant that the limitation period
did
    not begin to run

until then.
The
    findings of the motion judge were amply supported by the evidence and were
    entirely reasonable. We see no error in the decision.

[9]

The appeal is dismissed. The respondent is awarded costs of the appeal
    in the amount of $10,000 inclusive of disbursements and HST.

H.S.
    LaForme J.A.

C.W. Hourigan J.A.

David M. Paciocco
    J.A.


