



COURT OF APPEAL FOR ONTARIO

CITATION: 1702108 Ontario Inc. v. 3283313 Canada Inc., 2016
    ONCA 420

DATE: 20160531

DOCKET: C61393

Juriansz, Brown and Roberts JJ.A.

BETWEEN

1702108 Ontario Inc. o/a Al Pinto Sales &
    Services Ltd.

Plaintiff (Appellant)

and

3283313 Canada Inc. o/a Federal Auction Service
    Inc., Amir Durani and Salim Khan

Defendants (Respondents)

Avy Ben-zvi, for the appellant

Rajneesh K. Sharda, for the respondent Salim Khan

Jean-Claude Killey, for the respondents Amir Durrani and
    3283313 Canada Inc. o/a Federal Auction Service Inc.

Heard: May 26, 2016

On appeal from the order of Justice David L. Edwards of
    the Superior Court of Justice, dated November 9, 2015.

ENDORSEMENT

[1]

On December 4, 2013, the appellant commenced an
    action seeking the sum of $500,000 for jewelry it had consigned to the
    respondent, 3283313 Canada Inc. (Federal Auction), but which had been stolen
    in 2008. The motion judge granted summary judgment dismissing the appellants
    action against the respondents, Federal Auction and its principal, Amir Durrani,
    on the ground that the claim was statute-barred. The appellant appeals. It
    submits the motion judge committed two errors in reaching that conclusion.

[2]

First, the appellant contends the motion judge
    erred in failing to find that a March 14, 2013 email sent by Mr. Durrani, when
    read in the context of payments made by the respondent following the
    appellants 2009 demand letter, was an acknowledgement of liability within the
    meaning of s. 13(1) of the
Limitations Act, 2002
, S.O. 2002, c. 24, Sched. B (the Act)
. That sub-section provides, in part: If a person acknowledges
    liability in respect of a claim for payment of a liquidated sum the act on
    which the claim is based shall be deemed to have taken place on the day on
    which the acknowledgement was made.

[3]

The motion judge held that Mr. Durranis email
    of March 14, 2013 did not constitute an acknowledgement of liability for the
    purposes of s. 13 of the Act. The motion judge held that although the email
    acknowledged an outstanding amount, it did not contain an acknowledgement or
    concession of the amount owing and, therefore, was not an acknowledgement of
    the debt.

[4]

The appellant submits the motion judge applied
    the wrong legal test for identifying an acknowledgement in reaching that
    conclusion. It contends the respondents statement in the email that he could
    not make any payments until he had settled the dispute with his ex-partner
    amounted to an acknowledgement for the purposes of s. 13(1) of the Act.

[5]

The language of the statute sets out the
    applicable test: s. 13(1) is engaged when a person acknowledges liability in
    respect of a claim for payment of a liquidated amount. In
Middleton
    v. Aboutown Enterprises Inc.
, 2009 ONCA 466, this court
    held, at para. 1, that s. 13(1) requires a clear and unequivocal acknowledgement
    of the debt claimed. In that case, the court upheld the motion judges finding
    that a mere offer to settle a claim, without acknowledging that any amount
    remained owing, did not amount to an acknowledgement of liability for the
    purposes of s. 13(1).

[6]

In the present case, Mr. Durranis March 14
    email did not acknowledge liability for the liquidated sum of $296,700 demanded
    by the appellant in its March 14 correspondence. At most, the respondents
    March 14 email proposed negotiating a settlement plan, without acknowledging
    that any amount remained owing. When the appellant subsequently pressed for an
    acknowledgement of liability for the liquidated sum, the respondent refused to
    give one. Accordingly, we see no basis to interfere with the motion judges
    conclusion that the March 14, 2013 email was not an acknowledgement. We would
    not give effect to this ground of appeal.

[7]

In its factum, the appellant advances a second
    ground of appeal. It submits the motion judge erred in failing to find the
    doctrine of promissory estoppel prevented the respondents from relying on the
    limitation period. The motion judge noted that the appellant first raised the
    issue of promissory estoppel during oral argument on the summary judgment
    motions, and had not raised it in any documents. The motion judge concluded
    that there is nothing in the words or conduct of the defendants that there was
    a promise to not rely upon the limitation period. The record supports the
    motion judges conclusion. We see no basis upon which to interfere.

[8]

Accordingly, we dismiss the appeal. The
    appellant shall pay the respondents their costs of the appeal fixed in the
    following amounts: $7,000 payable to Federal Auction and Mr. Durrani, and
    $1,000 payable to Mr. Khan.

R.G.
    Juriansz J.A.

David Brown
    J.A.

L.B.
    Roberts J.A.


