



COURT OF APPEAL FOR ONTARIO

CITATION: Ntakos Estate v. Ntakos, 2022 ONCA 301

DATE: 20220414

DOCKET: C69399, C69400 & C69401

Trotter, Coroza and Favreau JJ.A.

DOCKET:
    C69399

BETWEEN

Theofanis Ntakos

Plaintiff (Appellant)

and

Konstantinos Ntakos a.k.a. Gus Ntakos
,
    Rubinovich Newton LLP,
Fogler Rubinoff LLP
and
Paul Rooney

Defendants
(
Respondents
)

DOCKET: C69400

AND BETWEEN

The Estate of Anna Ntakos, deceased, by Peter
    Ntakos, Tammy Boulias and Olga Fousteris, the representatives of the Estate and
    Dupont Construction Supplies Ltd.

Plaintiffs (Appellants)

and

Konstantinos Ntakos a.k.a. Gus Ntakos
,
    Rubinovich Newton LLP,
Fogler Rubinoff LLP
and
Paul Rooney

Defendants
(
Respondents
)

DOCKET: C69401

AND BETWEEN

Dupont Construction Supplies Ltd., The Estate of
    Anna Ntakos Represented by Peter Ntakos, Olga Fousteris, and Tammy Boulias, in
    their personal capacities and as executors, and Ntakos Holdings Ltd.

Applicants (Appellants)

and

Shimmerman Penn LLP, Doug Hartkorn, Brauti
    Thorning LLP,
Konstantinos Ntakos a.k.a. Gus Ntakos
, Kreitmaer Inc.,
    Leaside Concrete, Masonry and Landscaping Supplies Ltd.,
Paul Rooney
and
    2324973 Ontario Ltd.

Respondents
(
Respondents
)

Nicholas C. Tibollo, for the appellants

David Steinberg, for the respondent Konstantinos Ntakos

Michael Kestenberg, for the respondent Fogler
    Rubinoff LLP

William Pepall and Rebecca Shoom, for the
    respondent Paul Rooney

Heard: February 15, 2022 by video conference

On appeal from the judgments of Justice Paul B. Schabas
    of the Superior Court of Justice, dated May 20, 2021, with reasons reported at
    2021 ONSC 2492.

Favreau J.A.:

[1]

The appellants appeal the motion judges dismissal of two actions and an
    application pursuant to a motion for summary judgment. The motion judge found
    that the proceedings were an abuse of process because they raised issues that
    had been dealt with in prior proceedings. The motion judge also found that the
    appellants had previously released their claims against the respondents, and
    that the claims were barred by statutory limitation periods.

[2]

The appellants argue that the motion judge should have dismissed the
    motions for summary judgment and allowed the proceedings to go to trial. They argue
    that the motion judge erred by failing to consider recently discovered evidence
    of fraud, and that a full trial is required to decide the issues between the
    parties.

[3]

In my view, the motion judge made no errors. He carefully reviewed the history
    of the proceedings between the parties and found that there was no evidence
    that prior settlements or releases were obtained by fraud. On this basis, he
    found that no trial was required, and that summary judgment was appropriate.

[4]

Accordingly, I would dismiss the appeals.

BACKGROUND

Parties and prior litigation

[5]

The litigation stems from disputes between two brothers and the three adult
    children of a third brother.

[6]

John, Konstantinos (Gus), and Theofanis (Ted) Ntakos owned and ran a
    construction supply business, Dupont Construction Supplies Ltd. (Dupont). Dupont
    was a wholly owned subsidiary of Ntakos Holdings Ltd. (Holdings), of which
    the three brothers were equal shareholders.

[7]

John died in 1995, and his shares in Holdings were transferred to his
    wife, Anna Ntakos.

[8]

After John died, there were disagreements between Gus and Ted over various
    financial issues related to Dupont and Holdings. In 2003, Dupont and Holdings
    retained a lawyer, Paul Rooney, to advise them on these issues. Mr. Rooney
    worked with the companies accountants, initially Rubinovich Newton LLP and
    later Shimmerman Penn LLP, to address the issues. In July 2004, pursuant to Mr.
    Rooneys advice, the parties reached an agreement that involved Ted, Gus and
    Anna signing acknowledgments of the amounts they each received from and owed to
    Dupont and Holdings.

[9]

Anna died in October 2004, after which her shares in Holdings were
    transferred to John and Annas children, Peter Ntakos, Olga Fousteris and Tammy Boulias.
    All three worked at Dupont.

[10]

In 2005, Gus, Peter, Olga, and Tammy bought Ted out of the two companies.
    The agreement between the parties included forgiveness of the debts owed by Ted
    to the two companies and a payment to him of $500,000. The parties also signed
    releases. As described by the motion judge, the release Ted signed was broad
    in scope and included an irrevocable and unconditional release of all current
    and future claims. At the time, the parties were all represented by counsel. In
    particular, Gus was represented by Fogler Rubinoff LLP.

[11]

As a result of this agreement, Gus held 50 percent of the shares in
    Holdings while Peter, Olga, and Tammy jointly held the other 50 percent.

[12]

Despite this resolution, in February 2006, Peter, Olga and Tammy, on
    their own behalf and on behalf of Annas Estate, started an action against a
    number of parties, including Gus, Mr. Rooney and Shimmerman Penn LLP (the 2006
    Action). In the 2006 Action, the plaintiffs alleged that Gus misappropriated
    money from Dupont and that, as described by the motion judge, he had orchestrated
    an improper accounting of shareholder distributions and benefits. Fogler
    Rubinoff LLP defended Gus in the 2006 Action.

[13]

In March 2012, the plaintiffs to the 2006 Action settled with Gus. As
    part of the settlement, Gus surrendered his shares in Holdings to Peter, Olga
    and Tammy, and Holdings transferred two properties to Gus. The plaintiffs to
    the 2006 Action signed a broad release that released Gus and his agents,
    employees, representatives and solicitors from all current and future claims
    relating in any manner whatsoever to the 2006 Action.

[14]

In 2015, the plaintiffs to the 2006 Action reached a settlement with Mr. Rooney.
    Again, they signed a broad release, with terms that largely reflected the
    language in the agreement releasing Gus.

[15]

Besides the 2006 Action, Annas Estate has been involved in ongoing tax
    litigation. In 2007, Peter, Olga and Tammy, as Trustees of Annas Estate,
    brought an appeal to the Tax Court of Canada. The appeal dealt with a tax
    assessment regarding 2004 management fees that the Estate claimed Anna did not
    receive but for which she signed an acknowledgment prepared by Mr. Rooney. In
    2012, the Estate was successful on the tax appeal on the basis of a finding
    that Anna had not received the management fees:
Ntakos Estate v. The Queen
,
    2012 TCC 409.

[16]

In further court proceedings in the Tax Court, Annas Estate challenged tax
    issues dating back from 1998 to 2003. In 2018, the Tax Court released a
    decision finding that Anna lacked the mental capacity to make certain filings
    in 2003, relating to income adjustments for 1999, 2001, and 2002:
Ntakos
    Estate v. The Queen
, 2018 TCC 224.

2019 proceedings and motions for summary judgment

[17]

In early May 2019, Gus and his numbered company, 2324973 Ontario Ltd., brought
    an application against Holdings and Peter to enforce an arbitration agreement
    related to a mortgage held by the numbered company.

[18]

Two weeks later, Annas Estate (through Peter, Tammy and Olga, as
    representatives of the Estate) and Dupont commenced an action against Gus, Mr. Rooney,
    Fogler Rubinoff LLP and Rubinovich Newton LLP (the Estate Action). The Estate
    Action relates to events that took place between 1995 and 2005. The plaintiffs
    allege that Gus misappropriated funds from Dupont in that time period, and that
    he induced Anna to sign documents acknowledging that she received management
    fees that she never received. The plaintiffs further allege that the other
    defendants conspired with Gus and assisted him with these activities.

[19]

In November 2019, Dupont, Holdings, and Peter, Olga and Tammy, in their
    personal capacities and as representatives of Annas Estate, brought an application
    against Gus, 2324973 Ontario Ltd., Mr. Rooney, Shimmerman Penn LLP and others,
    seeking a declaration that the 2012 settlement with Gus and the 2015 settlement
    with Mr. Rooney were void
ab initio
because they were induced by fraud

(the Estate Application).

[20]

In December 2019, Ted brought an action against Gus, Rubinovich Newton
    LLP, Fogler Rubinoff LLP and Mr. Rooney, alleging wrongdoing by the defendants
    between 1997 and 2004 (Teds Action).

[21]

Gus, Mr. Rooney and Fogler Rubinoff LLP brought motions for summary
    judgment in all three proceedings.
[1]
The motions were based on arguments that the proceedings were an abuse of
    process because they dealt with matters resolved in the 2006 Action, that the
    appellants had released the claims through the various releases they signed, and
    that the proceedings were barred by limitation periods under the
Limitations
    Act 2002
, S.O. 2002, c. 24, Sched. B, and the
Trustee Act
, R.S.O.
    1990, c. T.23. With respect to Teds Action, the respondents on the appeal also
    argued that Ted was an undischarged bankrupt and therefore did not have
    standing to bring the action. Finally, Fogler Rubinoff LLP argued that it did not
    owe a duty of care to the appellants because the firm only acted for Gus, and not
    for anyone else.

[22]

The motion judge accepted these arguments, granted the motions for
    summary judgment, and dismissed the actions and application against Gus, Mr. Rooney
    and Fogler Rubinoff LLP.

[23]

In his decision, the motion judge first considered whether summary
    judgment was appropriate in the circumstances of this case. He reviewed the
    test for granting summary judgment and concluded that [t]he issues raised by
    the moving parties are discrete and, if successful, will avoid a review of the
    underlying claims which would indeed require lengthy discovery and a trial.

[24]

The motion judge then looked at the three proceedings separately and
    considered the respondents arguments in relation to each proceeding.

[25]

He found that the Estate Action was an abuse of process because the
    claim raised issues that were raised or could have been raised in the 2006
    Action. The motion judge rejected the appellants arguments that the doctrine
    of abuse of process should not apply because of the allegations of fraud:

There is no evidence that the 2006 Action and its resolution
    were tainted by fraud. Indeed, the plaintiffs do not allege any wrongdoing
    associated with the settlement but state that the only reason they settled with
    Gus was because they could not afford to continue to litigate against him and decided
    to prioritize the tax case.

[26]

The motion judge also found that the appellants had released the
    respondents from all three proceedings. He found that the release Ted signed when
    his shares were bought out prevented him from pursuing his claim. He also found
    that the releases signed by Peter, Olga and Tammy, on their own behalf and on
    behalf of Annas Estate in 2012 and 2015, precluded them from pursuing the
    Estate Action. In doing so, the motion judge noted that the releases were very
    broad and included future claims. He again rejected any arguments that the
    settlements were tainted by fraud on the basis that there was no evidence of
    fraud.

[27]

The motion judge also found that all three proceedings were statute
    barred by limitation periods. Specifically, he concluded that the
Limitations
    Act, 2002
had the effect of barring all the claims. With respect to the Estate
    Action and the Estate Application, he found that Peter, Olga and Tammy were
    aware of all necessary facts to bring their proceedings at the time of the 2006
    Action, and these proceedings were therefore barred by the two-year limitation
    period:
Limitations Act, 2002
, s. 4. With respect to Teds Action, the
    motion judge found that Teds claim against Mr. Rooney was barred by the
    ultimate 15-year limitation period in ss. 15(1) and 15(2) of the
Limitations
    Act, 2002
, as a result of the transitional provisions in ss. 24(5) and
    24(6) which start the limitation period on January 1, 2004:
York
    Condominium Corporation No. 382 v. Jay-M Holdings Limited
, 2007 ONCA 49,
    84 O.R. (3d) 414, at para. 2, leave to appeal to S.C.C. refused, 31950
    (September 6, 2007). With respect to the other claims in Teds Action, the
    motion judge found that Ted was aware of the necessary facts to bring his
    action by the late 1990s and early 2000s, and thus these claims were barred by
    s. 4 of the
Limitations Act, 2002
.

[28]

The motion judge found that the Estate Action was additionally barred by
    the limitation period in s. 38(3) of the
Trustee Act
, which runs for
    two years from the death of the deceased, which was two years after the date
    of Annas death on October 5, 2004. He acknowledged that fraudulent concealment
    could toll the limitation period, but noted that the Estate had not pleaded or
    put forward any evidence of fraudulent concealment: see
Zeppa v. Woodbridge
    Heating & Air-Conditioning Ltd.
, 2019 ONCA 47, 144 O.R. (3d) 385, at paras.
    61-64, leave to appeal refused, [2019] S.C.C.A. No. 91.

[29]

In addition, the motion judge found that Ted did not have the capacity
    to bring his action because he was an undischarged bankrupt. In reaching this
    conclusion, the motion judge relied on a paragraph in Teds statement of claim pleading
    that he had declared bankruptcy in November 2007, a bankruptcy search conducted
    by Mr. Rooney demonstrating that Teds discharge status as of May 2020 was
    listed as suspended, and Teds failure to put forward any admissible evidence
    demonstrating that he had been discharged from bankruptcy.

[30]

The motion judge further found that the appellants had no cause of
    action against Fogler Rubinoff LLP. He found that the law firm did not owe the
    plaintiffs a duty of care because it acted for Gus, and did not act for either Dupont
    or Holdings.

[31]

Finally, the motion judge found that the Estate Application should also
    be dismissed as it faced the same impediments as the Estate Action. To the
    extent that it raised issues regarding the validity of the arbitration
    agreement arising from the mortgage held by 2324973 Ontario Ltd., those issues
    could be addressed in Guss outstanding application to enforce the agreement.

[32]

The motion judge concluded as follows:

At the end of the day, the actions commenced by plaintiffs
    simply cannot overcome the passage of time, previous litigation and broadly
    worded releases. The wrongs complained of, if they occurred, happened too long
    ago and too many other steps have been taken, including earlier settlements,
    which put an end to these disputes and prevents them from being relitigated.

ISSUES AND DISCUSSION

[33]

The appellants raise several grounds of appeal, which can be summarized
    as follows:

a.

The motion judge erred in finding that this was an appropriate case for
    summary judgment;

b.

The motion judge erred in finding that the proceedings were an abuse of
    process;

c.

The motion judge erred in finding that the releases signed by the
    appellants were a bar to the 2019 proceedings;

d.

The motion judge erred in finding that the 2019 proceedings were statute
    barred;

e.

The motion judge erred in finding that Ted was an undischarged bankrupt;
    and

f.

The motion judge erred in finding that Fogler Rubinoff LLP did not owe
    the appellants a duty of care.

[34]

Before addressing these issues individually, I observe that the appellants
    arguments are essentially an attempt to re-argue the motions for summary
    judgment. However, it is not the role of this court on appeal to decide the
    motions afresh. This court owes deference to the motion judges findings of
    fact and findings of mixed fact and law. The court will only allow the appeal
    if the motion judge made an error of law, or if he made a palpable and
    overriding error of fact or mixed fact and law:
Housen v. Nikolaisen
,
    2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8, 10, and 36. I see no such errors
    in this case.

Issue 1: Appropriate case for summary judgment

[35]

The appellants argue that the motion judge erred in finding that this
    was an appropriate case for summary judgment. Specifically, the appellants take
    issue with the motion judges statement that the issues of abuse of process, limitation
    periods, and the effect of the releases were threshold issues that did not
    require a dive into the merits of the allegations of fraud, conspiracy and
    misappropriation. The appellants position is that the motion judge should not
    have decided these threshold issues without reviewing the appellants
    evidence of fraud, and without giving them a chance to cross-examine Gus. They
    argue that the respondents alleged fraudulent conduct would defeat any
    arguments that the claims were barred by the doctrine of abuse of process, by
    limitation periods or by the releases signed by the appellants.

[36]

However, this argument fails to acknowledge that the motion judge did
    consider the allegations of fraud, and he concluded that they did not impede
    his ability to decide the motions for summary judgment. With respect to the Estate
    Action, he found that the allegations of fraud were the same allegations that
    had been made in the prior proceedings. He also found that there was no
    evidence that the respondents had obtained the settlements or releases by
    fraud. With respect to Teds Action, he also found that there was no evidence
    that the settlement had been obtained by fraud.

[37]

On appeal, the appellants were not able to identify any evidence that
    defeats these findings made by the motion judge. The appellants purport to rely
    on an affidavit sworn by Peter in which he makes general comments about only
    discovering the extent of the fraud, as well as Fogler Rubinoff LLPs alleged
    involvement in the fraud, after receiving the 2018 Tax Court decision. However,
    the motion judge reviewed and considered this evidence and found that it did
    not support a finding that the settlements were obtained fraudulently, nor that
    the appellants were only able to discover the fraud after the 2018 Tax Court
    decision.

[38]

As properly held by the motion judge, on the motion for summary
    judgment, the appellants had an obligation to put their best foot forward. The
    motion judge considered the appellants evidence and found that it did not support
    their position that the Estate Action, the Estate Application, and Teds Action
    should not be dismissed on the basis of the threshold issues advanced by the respondents.
    His findings of fact are entitled to deference, and I see no errors in his
    assessment of the appellants evidence.

[39]

In addition, I see no merit to the appellants argument that the motion
    judge should have allowed them to conduct a
viva voce
cross-examination
    of Gus. On a motion for summary judgment, r. 20.04(2.2) of the
Rules of
    Civil Procedure
, R.R.O. 1990, Reg. 194, gives a motion judge the power to
    order oral evidence. However, this is an exercise of discretion:
Hryniak v.
    Mauldin
, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 68. In this case, it was
    open to the motion judge to decide that oral evidence was not required for him
    to determine that the appellants failed to put forward evidence that the settlements
    were obtained fraudulently or that they were unaware of the fraudulent conduct
    alleged in the 2019 proceedings until the release of the 2018 Tax Court
    decision.

[40]

Accordingly, I see no error in the motion judges finding that this was
    an appropriate case for summary judgment. To the contrary, as found by the
    motion judge, summary judgment was a perfect tool for addressing the threshold
    issues raised by the respondents in defence of the 2019 proceedings.

Issue 2: Abuse of process

[41]

The motion judge found that the Estate Action was an abuse of process
    because of the 2006 Action. (Given that Ted was not involved in prior
    litigation with the appellants, Teds Action was not subject to the doctrine of
    abuse of process.)

[42]

The appellants argue that the motion judge should not have found that
    the Estate Action was an abuse of process because of the allegations of fraud
    against the respondents and because the claim includes allegations against
    Fogler Rubinoff LLP, which was not a party to the prior litigation.

[43]

I see no error in the motion judges analysis.

[44]

The motion judge properly considered the relevant legal principles for
    deciding whether the claims were an abuse of process. Having regard to case law
    from this court and the Supreme Court of Canada, the motion judge stated that
    [t]he law is clear that it is an abuse of process to relitigate a
    determination by a court in the hope of a different outcome: see
The
    Catalyst Capital Group Inc. v. VimpelCom Ltd.
, 2019 ONCA 354, 145 O.R.
    (3d) 759, leave to appeal refused, [2019] S.C.C.A. No. 284;
Behn v. Moulton
    Contracting Ltd.
, 2013 SCC 26, [2013] 2 S.C.R. 227. The motion judge
    explained that this principle applies to matters that could have been
    determined in prior proceedings:
Catalyst
, at para. 67, citing
Winter
    v. Sherman Estate
, 2018 ONCA 703, 42 E.T.R. (4th) 181, at para. 7, leave
    to appeal to S.C.C. refused, 38899 (March 19, 2020);
Behn
, at para. 40.
    He further explained that this principle applies to proceedings decided on
    consent:
DAddario v. EnGlobe Corp.
, 2012 ONSC 1918, 1 B.L.R. (5th)
    23, at paras. 268-69, affd 2014 ONCA 376, 28 B.L.R. (5th) 191. In addition,
    the motion judge correctly acknowledged that there are limited circumstances
    where a party may be entitled to relitigate an issue, such as when the first
    proceeding is tainted by fraud or dishonesty:
Toronto (City) v. C.U.P.E.,
    Local 79
, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 52.

[45]

Based on these principles, the motion judge compared the 2006 Action to
    the 2019 Estate Action and found that all the wrongful acts pleaded in 2019
    were already pleaded in 2006. The motion judge described the similarities
    between the claims as follows:

The Estate Action effectively resurrects the claims made in the
    2006 Action and recycles the same allegations concerning the same underlying
    issues and events that occurred between 1995, when John died, and 2005. A
    comparison of the two pleadings shows that both actions allege that, following
    Johns death, Gus and Ted misappropriated funds from Dupont, treating mortgage
    payments by Dupont on Annas home as income, inducing Anna to sign documents
    acknowledging receipt of funds as management fees that were never paid, and
    that as a result she incurred tax liabilities that were improper. As to Rooney,
    the allegations against him are virtually identical in both actions, which claim
    that Rooney assisted Gus in his misappropriations.

[46]

With respect to the issue of fraud, as mentioned above, the motion judge
    found that the appellants had not provided any evidence that the settlement of
    the 2006 Action was obtained by fraud and that there was no new evidence which
    impeaches the original result. Rather, he noted that the appellants own
    materials stated that they settled the 2006 Action because they could not
    afford to continue the litigation.

[47]

Finally, the motion judge acknowledged that Fogler Rubinoff LLP was not
    a party to the 2006 Action, but did not find that this affected his conclusion that
    the Estate Action was an abuse of process. Rather, the motion judge explained
    that the doctrine of abuse of process is flexible and is meant to prevent the
    litigation of claims that have already been determined:
C.U.P.E.
, at
    para. 37, citing
Canam Enterprises Inc. v. Coles
(2000), 51 O.R. (3d)
    481 (C.A.), at paras. 55-56,
per
Goudge J.A. (dissenting), revd for
    the reasons of Goudge J.A., 2002 SCC 63, [2002] 3 S.C.R. 307. In this case, the
    allegation against Fogler Rubinoff LLP is that it participated in a conspiracy
    with the other respondents to perpetrate a fraud on the appellants. But the
    alleged fraud is the same as that which was alleged in the 2006 Action. The
    motion judge did not err in finding that the doctrine of abuse of process
    applies to these circumstances. Adding Fogler Rubinoff LLP to the claim does
    not change the nature of the claim.

[48]

In any event, the motion judge also made a finding that there was
    insufficient evidence to support the claim against Fogler Rubinoff LLP. The
    appellants claim against this party was premised in part on an allegation that
    it had a conflict of interest because it acted for Gus and for Dupont. In
    making this allegation, the appellants relied on one invoice from Rubinovich
    Newton LLP that referred to Fogler Rubinoff LLP as Duponts lawyer. The motion
    judge held that this invoice should have been known to the appellants in the
    context of litigating the 2006 Action. More importantly, he found that this
    invoice was inconsistent with all the other evidence which clearly showed that
    Fogler Rubinoff LLP only ever acted for Gus. Ultimately, he described the
    invoice as too thin a reed on which to base a claim.

[49]

The motion judge applied the correct legal principles in finding that
    the Estate Action was an abuse of process. His findings that there was no
    evidence that the 2006 settlement was tainted by fraud and that there was no
    air of reality to the claim against Fogler Rubinoff LLP are entitled to
    deference. These findings are well supported by the record, and I see no
    palpable and overriding error.

Issue 3: Releases

[50]

The motion judge found that the releases signed by the parties had the
    effect of releasing the respondents from the 2019 proceedings.

[51]

The appellants argue that the motion judge erred because the settlements
    did not contemplate the claims advanced in 2019, and because the settlements
    were tainted by fraud. The motion judge addressed these issues, and I see no
    errors in his findings.

[52]

With respect to the 2006 Action, the motion judge noted that the release
    signed in 2012 in Guss favour expressly released him from unknown claims
    arising in the future with respect to all matters raised or which could have
    been raised in the [2006 Action]. The motion judge also noted that the release
    signed in 2015 in Mr. Rooneys favour released him from not only all known
    injuries, losses and damages, but also injuries, losses and damages not now known
    or anticipated but which may later develop or be discovered, including all the
    effects and consequences thereof. He further noted that the 2012 release
    released Guss solicitors, which were known to be Fogler Rubinoff LLP at the
    time. Based on these broad releases, I see no error in the motion judges
    finding that the Estate Action is barred by the releases signed by the
    appellants. Given the motion judges well-supported finding that the settlement
    of the 2006 Action was not tainted by fraud, there is no basis for disregarding
    or setting aside the releases.

[53]

With respect to Teds Action, the motion judge again noted that the
    release Ted signed in 2005 was very broad. Specifically, he released Gus, among
    others, from any and all Claims  which the Releasor has now, or may have in
    the future  relating to or arising out of any cause, matter or thing
    whatsoever existing up to and including the date hereof. The release also
    released agents and representatives of both Holdings and Dupont, which had the
    effect of releasing Mr. Rooney. The motion judge found that there was no
    evidence that the release was obtained by fraud. Again, I find no error in the
    motion judges conclusion that Teds Action is covered by the release he signed
    in 2005. This conclusion is consistent with the wording of the release and the
    record before the motion judge.

Issue 4: Limitation periods

[54]

As reviewed above, the motion judge found that all the claims were
    statute barred: for the claim against Mr. Rooney in Teds Action, by the 15-year
    ultimate limitation period in the
Limitations Act, 2002
, ss. 15(1),
    15(2); for the other claims in Teds Action, as well as the claims in the Estate
    Action and the Estate Application, by the two-year limitation period in the
Limitations
    Act, 2002
, s. 4; and for the Estate Action, additionally, by the two-year
    limitation period in s. 38(3) the
Trustee Act
.

[55]

The appellants argue that the motion judge erred in making these
    findings because he did not consider that the respondents fraudulently
    concealed the misconduct giving rise to these claims.

[56]

As already described, the motion judge considered the appellants
    evidence and concluded that there was no evidence that the settlements were
    obtained by fraud. Under the circumstances, there was no basis for him to find
    that fraudulent concealment was a triable issue. Therefore, I see no error in
    the motion judges finding that all the claims were statute barred.

Issue 5: Teds bankruptcy

[57]

Ted argues that the motion judge erred in finding that he is an
    undischarged bankrupt and therefore did not have the capacity to bring his
    action. As part of this argument, he brings a motion for fresh evidence for the
    purpose of showing that he has been discharged from bankruptcy.

[58]

There is no need to address this issue given my conclusion that the motion
    judge made no error in finding that the 2005 release and limitation periods each
    present a bar to Teds Action.

Issue 6: Claims against Fogler Rubinoff LLP

[59]

The appellants argue that the motion judge erred in finding that Fogler
    Rubinoff LLP did not owe them a duty of care.

[60]

As described above, the motion judge made a finding of fact that Fogler Rubinoff
    LLP only acted as Guss counsel and never acted for Dupont or Holdings. This
    finding of fact is supported by the record and is entitled to deference.

[61]

Based on this finding, I see no error in the motion judges conclusion
    that the appellants do not have a cause of action against Fogler Rubinoff LLP. The
    law firm represented Gus, and no one else, and therefore did not owe a duty of
    care to any individual other than Gus:
790668 Ontario Inc. v. D'Andrea
    Management Inc.
, 2015 ONCA 557, 336 O.A.C. 383, at para. 14.

DISPOSITION

[62]

For these reasons, I would dismiss the appeals.

[63]

As agreed between the parties, the appellants are to pay each respondent
    costs in the amount of $15,000.00 all inclusive, for a total of $45,000.00.

Released: April 14, 2022 G.T.T.

L.
    Favreau J.A.

I agree. Gary Trotter
    J.A.

I agree. Coroza J.A.





[1]
Rubinovich Newton LLP did not bring motions for summary judgment below and
    takes no position on this appeal.


