



COURT OF APPEAL FOR ONTARIO

CITATION: Cosentino v. Dominaco Developments Inc., 2019 ONCA
    426

DATE: 20190523

DOCKET: C65924

Hourigan, Paciocco and Harvison Young JJ.A.

BETWEEN

Sam
    Cosentino, on his own behalf and on behalf of all creditors of Dominaco
    Developments Inc. Anna Cosentino, Cesare Cosentino and Mary Alilovic, the
    Estate Trustees of the Estate of Domenic Cosentino, Deceased, Cesare Cosentino,
    Anthony Cosentino, Mario Cosentino, 1183082 Ontario Inc., 1331722 Ontario Inc.,
    1347482 Ontario Inc. and Pit-On Construction Co. Limited

Plaintiff (Appellant)

and

Dominaco Developments Inc., Cesare Cosentino and
    Mary Alilovic, the Estate Trustees of the Estate of Domenic Cosentino, Deceased,
    Anna Cosentino, Cesare Cosentino, Mary Alilovic, Anthony Cosentino, Maria
    Cosentino, 1183082 Ontario Inc., 1331722 Ontario Inc., 1347482 Ontario Inc.,
    Pit-On Construction Co. Limited and James Arthur MacColl

Defendants (Respondents)

Sam Cosentino, acting in person

Michael A. Handler and Emily
    Evangelista, for the respondents Dominaco Developments Inc., Mary Alilovic, Anthony
    Cosentino, Maria Cosentino, 1183082 Ontario Inc., 1331722 Ontario Inc., Pit-On
    Construction Co. Limited

Antonios T. Antoniou, for the
    respondent James Arthur MacColl

Heard: May 9, 2019

On appeal from the order of Justice William M. LeMay of
    the Superior Court of Justice, dated August 27, 2018, with reasons reported at 2018
    ONSC 5056, and from the costs order dated October 12, 2018, with reasons
    reported at 2018 ONSC 6064.

REASONS FOR DECISION

(a)

Introduction

[1]

The appellant brought a motion to amend
    his statement of claim. That motion was dismissed on the grounds that certain
    amendments were statute barred and other amendments should await the
    determination of an outstanding motion for partial summary judgment. The motion
    judge also awarded costs against the appellant.

[2]

The appellant advances multiple grounds
    of appeal, but they can be distilled to the following two submissions. First,
    he argues that the motion judge was biased against him. Second, he argues that
    the motion judge erred in refusing to grant leave to amend the statement of
    claim. For the reasons that follow, we do not give effect to either submission.

(b)

Bias

[3]

The evidence and arguments advanced on the bias ground of appeal do not
    meet the high evidentiary hurdle to establish actual or apprehended judicial
    bias. Nor do they overcome the strong presumption of judicial integrity:
R.
    v. S. (R.D.)
,
[1997] 3 S.C.R. 484, at paras. 113 and 117.

[4]

Properly understood, the complaints made in support of this ground of
    appeal amount to nothing more than an expression of dissatisfaction with the
    results of the motion and certain procedural aspects of the hearing. We
    consider each of the arguments advanced below.

[5]

First, the appellant complains that the motion judge permitted counsel
    for a non-party to make submissions on the motion and awarded costs to his
    client. The motion judge gave clear and cogent reasons for both permitting counsel
    to make submissions and awarding costs to the non-party. Those orders were well
    within the motion judges discretion to control the process on the motion.

[6]

Second, the fact that in his endorsement the motion judge may not have
    referred to every argument or piece of evidence contained in the appellants
    submissions on the motion does not qualify as actual or apprehended bias.

[7]

Third, the appellant alleges bias on the ground that the motion judge
    ordered him to file a blacklined statement of claim to identify his proposed
    amendments. This was a sensible order given the length of the claim and the
    breadth of the amendments. Rather than showing bias against the appellant, the
    order, if followed, would have helped him explain to the court the precise
    nature of the relief sought on the motion. The appellant refused to comply with
    the order. The motion judge could have dismissed the motion on that basis
    alone. Instead, he considered the motion as filed.

[8]

Fourth, the appellant submits that the trial judge demonstrated bias
    because he dismissed the motion against all defendants, even though some of the
    defendants consented to or did not oppose the motion. This submission ignores
    the point that it was not open to the motion judge to grant a motion to amend
    pleadings against some defendants but not against others.

[9]

In summary, there is no evidence of actual or apprehended bias on the
    part of the motion judge. Accordingly, we dismiss this ground of appeal.

(c)

Motion for Partial Summary Judgment

[10]

In
    2016, the appellant brought a motion for partial summary judgment. Substantial
    time and resources have been expended by the parties in preparing for that
    motion, including for preparation of affidavit material, documentary
    production, cross-examinations, and answering undertakings. That motion is
    still outstanding.

[11]

The
    respondents position was that the leave to amend motion should be deferred
    until after the summary judgment motion. The motion judge acceded to that
    request and ordered that 
any otherwise allowable amendments should not be permitted until after
    the summary judgment motion is heard.

[12]

In
    support of his order, the motion judge stated as follows, at paras. 37-38:

I reach this conclusion for two reasons. First, once a summary
    judgment motion is brought, then it should be disposed of without a whole
    series of ancillary motions, if possible. The parties should not be facing an
    ever changing landscape of pleadings as well as an expanding number of
    allegations as they prepare for the hearing of a summary judgment motion. Litigation
    should be conducted in an orderly way wherever possible and Courts have an
    obligation to control their processes.

Second, the parties have already served and filed significant
    amounts of material for the summary judgment motion. They will have taken
    positions on that motion, and provided answers on cross-examination. Changing
    the pleadings creates a prejudice in terms of the positions that the party
    responding to the motion has taken in documents filed on the record.

[13]

It
    is important to note that the motion judge did not order that leave to amend
    could not be sought at a later date, but only that such a motion would have to
    wait until after the summary judgment motion was heard. This was a discretionary
    procedural order made by the motion judge. We see no basis to interfere with
    that order.

(d)

Limitation Period

[14]

The
    appellant made two submissions on the motion in support of his position that
    the amendments were not statute-barred: (i) not all of the proposed claims were
    new causes of action; and (ii) the respondents failed to establish any
    prejudice caused by the amendments. The appellant argues that the motion judge
    erred in rejecting these submissions.

[15]

As
    noted above, the appellant refused to provide an underlined blacklined version
    of his statement of claim despite an order from the motion judge. On the motion,
    he filed a schedule to his factum that purported to identify some, but not all,
    of his proposed amendments. In oral argument on the appeal, he conceded that the
    following pleadings in the schedule might be seen to be new claims: 8
    (Conveyance-Fourth Land), 12 (ConveyanceMacColls Properties), and 14
    (Conveyance-Shannon Land). He suggested, however, that these allegations were
    encompassed in the general fraud and deceit allegations he made in his prior
    pleadings. We do not agree. There was nothing in the prior pleadings that
    addressed these transactions.

[16]

The
    appellant identified two other proposed amendments in the schedule, being 2
    (Clandestine Banking Scheme Involving MacColl) and 36 (Payments from
    Corporate Defendants  to Mary, Vinegrove, 1183 and 1331), that could also arguably
    be considered to be new claims. However, he submitted that they were not, in
    fact, new claims but continuations of existing claims. We do not accept that
    argument. The pleading in item 2 of the schedule relies on the conveyance of
    the Shannon Land, which the appellant has admitted is a new claim. Further, in
    his schedule he is unable to identify a pleading in the previous statement of
    claim that corresponds to the relief sought in proposed amendment 36. We are of
    the view that both pleadings 2 and 36 are new claims.

[17]

A
    review of items 2, 8, 12, 14, and 36 from the schedule demonstrates that they
    all involve claims related to transactions and events that took place more than
    two years before the proposed amendments, in some cases dating back to 1993.

[18]

The
    appellant submits that he has rebutted the presumption in s. 5(2) of the
Limitations
    Act
,
2002, S.O. 2002, c. 24, Sch. B that a claim is presumed to
    have been discovered on the date the underlying act or omission took place. In
    support of that submission, he relies on the following part of his affidavit
    filed in support of his motion to amend:

As a result of new evidence which has come to my attention, the
    errors in my existing pleading which have been made inadvertently which came to
    my attention, and my desire to make my allegations more detailed and
    better-organized, I considered it prudent to amend my pleading and to add new
    party defendants, and I am bringing a motion for leave to do so.

[19]

The
    appellant submits that this is uncontroverted evidence and is a sufficient
    basis to defeat a limitations defence because there is no onus on a plaintiff
    to rebut the presumption under s. 5(2) of the
Limitations Act
.

[20]

We
    do not accept that submission.
A plaintiff is
    required to act with due diligence in determining if he or she has a claim. As
    stated by this court in
Longo v. MacLaren Art Centre
, 2014 ONCA 526,
323 OAC 246
at para.
    42, a limitation period will not be tolled while a plaintiff sits idle and
    takes no steps to investigate the matters referred to in s. 5(1)(a).

[21]

There
    was no evidence tendered by the appellant other than the bald statements in his
    affidavit to explain why the amendments were not made within two years of the underlying
    events. In these circumstances, the appellant failed to rebut the presumption
    in s. 5(2) of the
Act
. Thus, items 2, 8, 12, 14 and 36 in the schedule
    are all statute-barred.

[22]

The
    next argument advanced is that the respondents failed to establish sufficient
    evidence of prejudice to overcome the mandatory requirement that leave to amend
    be granted under r. 26.01. In rejecting the prejudice argument, the motion
    judge relied on
Frohlick v. Pinkerton Canada Ltd.
, 2008 ONCA 3, 88 OR
    (3d) 401. In that case, this court held that the loss of a limitations defence
    gives rise to prejudice.

[23]

The
    claims were-statute barred and the motion judge was correct to rely on
Frohlick
,
    which was binding authority. Contrary to the submission of the appellant, the
    respondents had no obligation to establish prejudice beyond the loss of the
    limitations defence.

(e)

Costs

[24]

We
    are not satisfied that the motion judge erred in his costs analysis and decline
    to interfere with his costs award.

(f)

Disposition

[25]

For
    the foregoing reasons, we dismiss the appeal.

[26]

Costs
    of the appeal should follow the result. The respondents seek costs on a
    substantial indemnity basis, given what they allege is the appellants pattern
    of alleging bias against judicial officers without foundation. There is merit
    to that submission, but we are of the view that, while the appellants conduct
    in this litigation comes close to the line of justifying costs on a higher
    scale, it does not cross that line.

[27]

We
    award costs of the appeal on a partial indemnity basis payable by the appellant
    to the respondents represented by Mr. Handler in the amount of $12,500 and to
    the respondent James MacColl in the amount of $1,250. Both amounts are
    inclusive of fees, disbursements, and taxes.

C.W.
    Hourigan J.A.

David
    M. Paciocco J.A.

A.
    Harvison Young J.A.


