



COURT OF APPEAL FOR ONTARIO

CITATION: Asfar v. Sun Life Assurance
    Company of Canada, 2020 ONCA 31

DATE: 20200120

DOCKET: C67095

Strathy C.J.O., MacPherson and
    Jamal JJ.A.

BETWEEN

Jean-Pierre
    N. Asfar and Equity Cheque Card Corporation Limited

Plaintiffs (Appellants)

and

Sun Life Assurance Company of
    Canada, Sun Life Financial INC. and Sun Life Financial Canada

Defendants (Respondents)

M. Niki Kanavas, for the appellants

Stephen H. Shantz and Aida Gregorian,
    for the respondents

Heard: January 17, 2020

On
    appeal from the judgment of Justice Shaun Nakatsuru of the Superior Court of
    Justice, dated May 23, 2019, with reasons reported at 2019 ONSC 3098.

REASONS FOR DECISION

[1]

Jean-Pierre Asfar is the principal of Equity
    Cheque Card Corporation Ltd. (ECCC). On April 26, 2018, Mr. Asfar and ECCC
    (collectively, the appellants) commenced an action against the respondents
    (Sun Life) on a number of grounds, including breach of contract, negligent or
    fraudulent misrepresentation, breach of trust, civil conspiracy and fraud. The
    action relates to five mortgages provided by Sun Life to the appellants.

[2]

Sun Life brought a motion to have the action
    dismissed on the grounds that it was frivolous and vexatious. The motion judge
    dismissed this motion on the basis that, while the Statement of Claim was
    confusing, it was not frivolous or vexatious.

[3]

Sun Life brought a motion for summary judgment
    on the basis that the appellants claim was barred by the
Limitations Act,
    2002
, S.O. 2002, c. 24, Sched. B. The motion judge granted this motion. He
    held that Mr. Asfar became aware of his potential cause of action in May 2006.
    He commenced the action 12 years later, in April 2018. Thus, under both the
    general two-year limitation period or the ten-year limitation period for claims
    relating to real property, the appellants claims were statute-barred.

[4]

The appellants appeal from the motion judges
    decision.

[5]

The appellants principal argument is that the
    motion judge erred by concluding that Mr. Asfar discovered his potential claim
    against Sun Life in May 2006.

[6]

We disagree. On this issue, the motion judge
    said:

From this record, I find it clear that Mr.
    Asfar knew by May 2006, that an action was the appropriate remedy for the
    losses and damages he believed that the Plaintiffs suffered at the hands of Sun
    Life. He took actions that individuals normally would in such a situation. He
    retained counsel. He sent numerous legal looking documents. He made demands. As
    well, these actions are consistent with his own affidavit.

I have assessed the substance of what Mr.
    Asfar was claiming in 2006 with the substance of his claims in his Statement of
    Claim. The rather rambling and incoherent nature of his allegations both in
    2006 and in his Statement of Claim does not make it an easy task. However, I
    find that they are fundamentally the same. Mr. Asfar takes issue with the
    financial dealings that he and his company had with Sun Life back in the 1990s
    and early 2000s. This constitutes the backbone of his claims. They are
    fundamentally the same.

[7]

There is no palpable and overriding error in
    this conclusion. Accordingly, the appeal is dismissed.

[8]

Sun Life is entitled to its costs of the appeal
    fixed at $3,450, inclusive of disbursements and HST.

G.R.
    Strathy C.J.O.

J.C.
    MacPherson J.A.

M.
    Jamal J.A.


