



COURT OF APPEAL FOR ONTARIO

CITATION: Buik v.
    Canasia Power Corp., 2015 ONCA 352

DATE: 20150515

DOCKET: C58918

Strathy C.J.O., LaForme and Tulloch JJ.A.

BETWEEN

Ann
    Buik, Sandra Buik and Catherine Buik, Trustees of the Estate of William

Buik, Deceased

Plaintiffs (Respondents)

and

Canasia Power Corp.

Defendant (Appellant)

Hari Nesathurai and Glen M. Perinot, for the appellant

H. Michael Rosenberg and Christine Wadsworth, for the respondent

Heard: May 12, 2015

On appeal from the judgment of Justice Susan G. Himel of
    the Superior Court of Justice, dated May 16, 2014, with reasons reported at
    2014 ONSC 2959 and reasons for costs reported at 2014 ONSC 4042.

ENDORSEMENT

[1]

Mr. Buik made a number of loans to the appellant, Canasia, between May
    2000 and April 2002. A promissory note, dated June 5, 2002, stated that the
    appellant owed $462,500 at 15% interest per annum, falling due on May 31, 2003.
    An additional unsigned promissory note, dated July 10, 2002, reflected a
    further loan of $4,000, bringing the total to $466,500.

[2]

Mr. Buik died in December 2002 leaving his estate to his wife. Following
    his death, a number of documents revealed the loans to Canasia, and inquiries
    were made as to their status. The following subsequently occurred: (i) Canasia
    wrote to Ms. Buik on May 31, 2008, acknowledging the loans; (ii) Canasia wrote
    again on June 25, 2009, indicating the loans were for $344,000; and (iii)
    Canasia sent Ms. Buik two cheques, each for $5,000, in August 2010.

[3]

On March 1, 2011, a written demand for payment was made to Canasia. No
    payments were received, an action was commenced and a trial ensued.

[4]

The trial judge concluded that: (i) the cause of action arose when the
    debt became due; (ii) the
Limitations Act
, R.S.O. 1990, c. L.15 applied
    because the cause of action arose before the
Limitations Act, 2002
,
    S.O. 2002, c. 24 Sched. B came into force; (iii) there was a six-year
    limitation period for repayment of a debt; and (iv) the limitation period was
    re-started when Canasia acknowledged the debt in 2008, re-started again with
    the acknowledgement letter of June 25, 2009, and again with the partial
    repayments in August 2010. Therefore, the limitation defence was dismissed.

[5]

The trial judge went on to hold that the estate was entitled to be paid
    approximately $2.3 million, representing the principal amounts owing and
    interest at the rate of 15% from the date the loans fell due until the date of
    trial. She awarded substantial indemnity costs in the amount of $105,051.08,
    because the promissory note provided for full reimbursement of enforcement
    costs and because the plaintiffs (respondents) had made a written offer to
    settle which was not accepted.

[6]

Canasia does not take issue with the finding of fact that a debt was
    owed. It raises two discrete grounds of appeal. First, it asserts that the
    trial judge should have considered and applied s. 38(3) of the
Trustee Act
,
    R.S.O. 1990, c. T.23, even though it was neither pleaded nor raised at trial.
    Second, it argues that she erred in finding that the communications between
    Canasia and Ms. Buik restarted the limitation period.

[7]

We reject both grounds of appeal.

1.       Section 38(3) of the
Trustee
    Act

[8]

In this court, for the first time, Canasia submits that the action is
    statute-barred because it was not brought within two years of Mr. Buiks death.
    For this argument, Canasia relies on
s. 38
(3)
of the
Trustee Act
, which
    requires that all actions brought by an estate under s. 38(1) be commenced
    within two years of the death of the deceased.

[9]

The appellant has given no satisfactory explanation for the failure to
    raise the
Trustee Act

in the court below. Although the appellant
    was self-represented at trial, the statement of defence was prepared by counsel
    and did not plead the
Trustee Act
.

[10]

As
    a general rule, appellate courts will not entertain an entirely new issue on
    appeal, because it is unfair to advance a new argument where the other party
    did not have the opportunity to lead evidence on the issue:
Kaiman v.
    Graham
, 2009 ONCA 77,
245 O.A.C. 130,
at para. 18.
    The appellant has not discharged the burden of persuading us that "all the
    facts necessary to address the point are before the court as fully as if the
    issue had been raised at trial". The respondent may well have adduced
    evidence to establish fraudulent concealment or to show that the case falls
    within the special circumstances doctrine, thereby making the two-year
    limitation period inapplicable. It would be unfair to permit the appellant to
    raise this new issue on appeal when the respondent would be prejudiced by the
    absence of an evidentiary foundation to respond.

[11]

We
    agree, in any event, with the respondent. Section 38(3) is not applicable to
    the case at bar.

[12]

The
    limitation period under the
Trustee Act
applies only to injuries to
    the deceased person.  In this case, Mr. Buik died before the promissory note
    matured, before Canasia was obligated to pay its debt, and before the cause of
    action arose.  Accordingly, the injury was to Mr. Buiks estate and s. 38(3) of
    the
Trustee Act
does not apply: see
Dundas

v. Zurich
    Canada
, 2012 ONCA 181,
109 O.R. (3d)
    521,
at paras. 57-59.

2.       Restarting the limitation
    period

[13]

The
    trial judge found the limitation period began to run on May 31, 2003, the date
    the note became payable: see
Skuy v. Greennough Harbour Corporation
,
    2012 ONSC 6998,
10 B.L.R. (5th) 146,
at
    paras. 42-43
.
She found that under the transition rules in the
Limitations
    Act, 2002
, specifically s. 24(5), the former six-year limitation period
    applied, because the claim was discovered before January 1, 2004. We see no
    error in this analysis.

[14]

The appellant submits, however,
    that the trial judge erred in finding the limitation period was extended
    because the appellant acknowledged the debt before the expiry of the limitation
    period. It submits the acknowledgment was not clear and unequivocal.

[15]

In the circumstances of this case
    we would not interfere with the conclusions of the trial judge that the
    limitation period was restarted as a result of Canasias actions. She found
    that Canasia both acknowledged the debt, and sufficiently identified it,
    through written correspondence and partial payment. The record fully supports her
    conclusions. On our review, it is clear that Canasia knew precisely what debt
    it was addressing with the respondent and what the partial payment was for.

[16]

As the appellant has demonstrated
    no palpable and overriding error in the trial judges findings of fact with
    respect to the appellants acknowledgment of the debt, part payment of the loan
    and consequent extension of the limitation period, we dismiss this ground of
    appeal.

Costs of the trial

[17]

Finally,
    Canasia also seeks to appeal the costs order made by the trial judge. It did
    not, however, address the leave requirement and made no oral submissions on
    this point. In any case, Canasia has not satisfied us that the trial judge made
    an error in principle or that the costs award is plainly wrong: see
Hamilton
    v. Open Window Bakery Ltd.
,
2004 SCC 9,
[2004] 1 S.C.R. 303,
at para. 27. The costs award was within the
    discretion of the trial judge and was supported by the factors she considered.

Disposition

[18]

For the foregoing reasons, we
    dismiss the appeal. Leave to appeal the costs award made by the trial judge is
    denied.

[19]

The respondent has provided us
    with no authority for an award of full indemnity costs in this court, based on
    the provision of the promissory note. We fix costs to the respondent in the
    amount of $15,000.00, inclusive of disbursements and all applicable taxes,
    payable forthwith.

G.R. Strathy C.J.O.

H.S.
    LaForme J.A.

M.
    Tulloch J.A.


