


COURT OF APPEAL FOR ONTARIO

CITATION: Da Graca v. Prouse, 2017 ONCA 361

DATE: 20170504

DOCKET: C62299

Juriansz, Pepall and Miller JJ.A.

BETWEEN

Andria Da Graca

Plaintiff (Appellant)

and

Richard Prouse

Defendant (Respondent)

Andria Da Graca, acting in person

David Silver, for the respondent

Heard: April 28, 2017

On appeal from the order of Justice Meredith Donohue of
    the Superior Court of Justice, dated September 16, 2015.

ENDORSEMENT

[1]

The respondent lawyer acted for the appellant in the purchase and
    mortgaging of real estate in 2011. The appellant later defaulted on the
    mortgages. She blamed the respondent for her losses and complained of his
    conduct in correspondence dated April 20, 2012. By May 4, 2012, she had been
    sued by both mortgagees.  She defended neither claim.

[2]

The appellants Statement of Claim claiming damages from the respondent for
    breach of contract and breach of fiduciary duties was issued on September 3,
    2014.

[3]

The respondent moved for summary judgment. The motion judge dismissed
    the appellants action. The motion judge concluded that the appellant knew of
    her claim and her damages by at least May 2012. As her claim was commenced more
    than two years later on September 3, 2014, her claim was out of time.

[4]

The appellant appeals from that judgment. She submits that the motion
    judge erred in her analysis of the issue of discoverability and in concluding
    that there was no medical evidence of the appellants incompetence during the
    relevant time period.

[5]

We disagree. The findings of the motion judge and her conclusions were
    available to her on the record. This includes her finding that the appellants
    claim was out of time and that there was no medical evidence of incompetence during
    the relevant time.

[6]

Lastly, before us, the appellant raised numerous factual issues that
    were not raised in her Notice of Appeal and were therefore not the proper
    subject matter of her appeal. In any event, we see no palpable and overriding
    error.

[7]

The appeal is dismissed. The appellant is to pay the respondent $3,500
    in costs inclusive of disbursements and applicable tax.

R.G. Juriansz J.A.

S.E. Pepall J.A.

B.W. Miller J.A.


