) ) JAMES LONGO v. MOLLY LONGO and, 2013 ONSC 6902

CITATION : Longo v. MacLaren, 2013 ONSC 6902 BARRIE COURT FILE NO.: 09-1532 DATE: 20131106 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) JAMES LONGO and MOLLY LONGO and DINO DELUCA and GRANT VOGELI and CELIA MARTIN, MARTIN JOHNSON and GEOFFREY GOAD Plaintiffs (Responding Parties) – and – MACLAREN ART CENTRE INC. Defendant (Moving Party) ) ) ) ) ) ) ) ) ) ) ) ) J. Adair, for the Plaintiffs/Responding Parties A. Schwisberg, for the Defendant/Moving Party ) ) ) HEARD: April 3 and July 26, 2013 REASONS FOR DECISION MOTION FOR

SUMMARY JUDGMENT DiTOMASO J. INTRODUCTION [ 1 ] A white plaster sculpture named Walking Man can be found in a crate stored at a Toronto warehouse. It has been there for some time with the Defendant MacLaren Art Centre Inc. “MacLaren” paying ever increasing and unwanted storage charges. MacLaren has tried to return Walking Man to its owners. However, the owners do not want Walking Man back. [ 2 ] Sadly, Walking Man is the subject of what in the art world is known as a failed “art flip” for tax purposes.

It has become the rejected gift that keeps on giving. [ 3 ] To complicate matters, our Walking Man is a controversial figure. Some claim it is a genuine work attributed to the famous French sculptor Auguste Rodin and is of considerable value. Others dispute its authenticity and provenance which is a polite way of saying our Walking Man is a cheap, valueless fake. [ 4 ] This controversy takes on a greater significance when one considers Walking Man’s current deteriorated and damaged condition. One thing agreed upon is that it is damaged beyond repair. The sculpture is cracked in different places.

Many pieces of Walking Man can be found on the bottom of its crate, beneath where one of its legs previously stood. It is little wonder why Walking Man is now abandoned. [ 5 ] Today, some claim Walking Man is an irreparably damaged original Rodin sculpture worth lost hundreds of thousands of dollars to its owners. However, others claim Walking Man is really nothing more than a broken conversation piece, like some novelty item, having no commercial or artistic value at all. [ 6 ] While Walking Man remains stationary, the litigation surrounding it continues to march onwards.

The owners commenced an action by way of Statement of Claim on November 19, 2009 claiming damages in the amount of $500,000. MacLaren delivered a Statement of Defence and Counterclaim claiming unreimbursed storage fees.

[ 7 ] MacLaren now brings this motion for

summary judgment under Rule 20 of the Rules of Civil Procedure to dismiss the plaintiffs’ action and for judgment on MacLaren’s counterclaim. HISTORY OF THE PROCEEDINGS [ 8 ] Initially, the action commenced by the Plaintiffs Dino Deluca and Grant Vogeli (owners of Walking Man ) was part of three parallel actions commenced concurrently by the Plaintiffs and the owners of five other sculptures attributable to Auguste Rodin claiming damage to the sculptures for which MacLaren was responsible. This was an error as only Walking Man was damaged.

The actions were later consolidated by the Order of Lauwers J. dated July 19, 2010. OVERVIEW [ 9 ] The parties have prepared a helpful Agreed Chronology which has been filed. The Agreed Chronology tracks events involving Walking Man from November 22, 1998 to service of the Statement of Claim on April 14, 2010. The international travels of Walking Man are chronicled as well as Walking Man’s journeys within our borders before coming to rest in a Toronto, Ontario warehouse. [ 10 ] Walking Man has been the subject of many appraisals, testing and inspections.

It has been the subject of investigations by different international and national agencies. Legal issues regarding Walking Man have been previously adjudicated by our Superior Court of Justice and the Ontario Court of Appeal. [ 11 ] I do not propose to review in any great detail Walking Man’s extensive history (except where it becomes necessary to deal with the issues giving rise to MacLaren’s motion for

summary judgment). Such a detailed history can be found in the respective factums filed by counsel. The Claim and Defence/Counterclaim [ 12 ] The Plaintiffs’ claim against MacLaren is for damages arising out of the destruction of an art plaster entitled Walking Man allegedly attributed to Auguste Rodin. MacLaren pleads Walking Man is not an original plaster sculpture by Rodin but rather a “foundry plaster” or less. [ 13 ] The Plaintiffs loaned Walking Man to MacLaren under the terms of a Loan Agreement.

The Plaintiffs allege Walking Man was in the care and control of MacLaren when it was destroyed due to MacLaren’s negligence in improperly packing the piece for shipping. [ 14 ] The Plaintiffs allege that MacLaren owed them a duty of care under the Loan Agreement. Further, MacLaren breached the duty of care by failing to take reasonable steps to safeguard Walking Man – an alleged fragile piece.

The Plaintiffs assert MacLaren shipped Walking Man in a substandard crate with insufficient padding. [ 15 ] Further, the Plaintiffs submit that the evidence discloses genuine issues requiring a trial on these two issues and others and MacLaren’s motion for

summary judgment ought to be dismissed. [ 16 ] MacLaren brings this motion for

summary judgment on the basis that the damage to Walking Man occurred in late 2004 and late 2006 – at times and occasions during which MacLaren had no liability. Further, the Plaintiffs’ agent knew of the damage to Walking Man at least as early as October 19, 2007 which knowledge is imputed to the Plaintiffs as owners. Further, MacLaren submits there is a limitation issue as the action was not commenced until two years later on November 19, 2009. MacLaren contends the Plaintiffs’ claim is caught by the Limitations Act, 2002, S.D. 2002, c. 24 , Sch.

B. [ 17 ] In addition to no liability on its part, MacLaren asserts the Plaintiffs have neither proven ownership, authenticity or provenance of Walking Man nor have they proven Walking Man’s value. Lastly, MacLaren counterclaims for its storage costs. FACTS [ 18 ] The Plaintiffs Dino Deluca and Grant Vogeli (“the Plaintiffs”) reside in Calgary, Alberta. Together with Dr. Gerald Wittenberg they are the owners of Walking Man.

In dispute is whether Walking Man is an original plaster sculpture by famous French sculptor Auguste Rodin. [ 19 ] The Defendant MacLaren Art Centre Inc. (“MacLaren”) is an Ontario corporation that owns and operates an art gallery in Barrie, Ontario. [ 20 ] The Plaintiffs claim they purchased Walking Man in 1998 for $62,500 U.S.. They are unable to produce a cancelled cheque or any proof of purchase. MacLaren states the vendor to the Plaintiffs is one Gary Snell, a convicted fraudster who had been prosecuted criminally by the Republic of France for art fraud involving Rodin sculptures.

The Plaintiffs obtained no provenance certification or information from Mr. Snell. [ 21 ] Walking Man was one of six Rodin plasters for which the Plaintiffs (and four others in their group) entered into conditional Loan Agreements in February of 2000 for the purposes of the Plaintiffs realizing a significant tax benefit through a donation subject to approval by the Canadian Cultural Property and Export Review Board (“CCPERB”). If the purpose had succeeded, the Plaintiffs would have qualified for Income Tax credits in an amount approximately six times the purchase price.

[ 22 ] MacLaren did not know the purchase price at the time. To this day, the Plaintiffs have never actually possessed Walking Man. [ 23 ] One of the Plaintiffs, Grant Vogeli is an experienced commercial litigation lawyer. Not only was he part owner of Walking Man but he was also counsel for a time and drafted the Statement of Claim and Amended Statement of Claim in this action. [ 24 ] The Plaintiffs entered into a Loan Agreement with MacLaren on or about February 7, 2000. The Loan Agreement valued Walking Man at $277,500 for insurance purposes. The Loan Agreement set out the following relevant parts: 1.

Term of Agreement This agreement operates from the time the Work [ Walking Man ] leaves the Lender’s premises, for the Exhibition, until it is returned to the Lender. 3. Standard of Care Each Institution shall provide the Work with the same care and safekeeping as it provides comparable property of its own. The Lender shall be notified at once if damage or deterioration is noted. 6. Cost of shipping, etc. The Institution will pay all costs of handling and packing, including packing crates and packing materials, and of transporting the Work.... 8.

Return of Work The Institution [MAC] has the right to return the Work at the termination of the Exhibition to the address on the face of this Agreement. If return is made to another address, at the Lender’s request, the Lender shall pay any additional costs. If the institution, after making reasonable efforts, is unable to return the Work within 60 days of termination, the Institution may place the Work in storage and charge the Lender for reasonable storage fees and cost of insurance. The Institution shall have a lien or right of retention for these storage fees and the cost of insurance.

If the Work is not reclaimed within seven years, the Institution may thereafter elect to deem the work an unrestricted gift to the Institution, or take the Work as liquidated damages for the fees and costs incurred in storing the Work. [ 25 ] On May 10, 2000, Walking Man was shipped to Canada and it arrived in Toronto on May 23, 2000 via New York City. It was exhibited at MacLaren in Barrie in the fall of 2001 and then was put into storage. Value of Walking Man [ 26 ] The Plaintiffs have provided two appraisals: (

a) from Stewart Waltzer dated January 12, 2002 concluding that Walking Man’s “projected” value was $425,000 ; and (

b) from William O’Reilly dated April 28, 1999 estimating the value of Walking Man at $250, 000. [ 27 ] Both appraisers assumed that the provenance and authenticity of Walking Man were valid. They relied on what they were told without identifying the source of the information. They conducted no independent investigations. Both appraisers qualified their appraisals in this respect. Mr. O’Reilly at least had inspected Walking Man in New York City in May 2000 before it was shipped to MacLaren. Mr.

Waltzer relied solely on photographs. [ 28 ] The claim alleges that Walking Man is an “original” Rodin sculpture, but it was later learned that Walking Man is a “foundry plaster” with doubtful provenance and authenticity on which the Plaintiffs can shed no light. While foundry plasters may have purpose in the art world, they are not valuable “originals”. MacLaren submits that in view of subsequent events, the assumptions of both appraisers Waltzer and O’Reilly have been shown to be invalid. Therefore, MacLaren asserts that the appraisals cannot be properly relied upon.

Further, MacLaren submits that the Plaintiffs submit no other evidence of value and admit that the existing unresolved controversy affects the salability and value of the sculpture.

Authenticity and Provenance of Walking Man are Called into Question [ 29 ] In June and July 2001, the Musée Rodin in France, wrote MacLaren and The Toronto Star setting out why the sculptures in question including Walking Man “cannot be considered authentic.” [ 30 ] In November 2002, MacLaren learned that the Musée Rodin had initiated a constitutional investigation in France regarding the authenticity and provenance of Walking Man (and other affected sculptures attributed to Rodin), for which the Canadian Department of Justice was corresponding with MacLaren.

The Plaintiffs were advised and understood the nature of the inquiry. [ 31 ] On or about March 19, 2003, August 15, 2003 and December 4, 2003, MacLaren received correspondence from CCPERB raising further questions about Walking Man and the other affected sculptures. New issues had been discovered regarding the sculptures’ questionable provenance and authenticity, and their circuitous transportation to Canada. MacLaren corresponded with the Plaintiffs with respect to these questions, but in the end, could only answer two minor points.

None of the crucial CCPERB questions could be answered and may never be answerable. Therefore, the application for certification to CCPERB was withdrawn and the entire purpose of the transaction failed. In the end, title to the sculptures never transferred to MacLaren. [ 32 ] There being no answers to resolve the concerns and questions raised about the Rodin sculptures’ provenance and authenticity, nor any prospect or plans of exhibiting the sculptures any further, on October 1, 2003, MacLaren had the Rodin sculptures transported to an art storage facility in Gatineau, Quebec.

In doing so, MacLaren used government art transporter Exhibit Transportation Services (“ETS”), an agency of the federal Department of Canadian Heritage, who are acknowledged experts. The Plaintiffs admit there is nothing imprudent or reckless about MacLaren relying on ETS. ETS used the packing crates and materials with which Walking Man had been shipped overseas form Italy to New York, then to Toronto and Barrie, then to Gatineau. CCPERB also had reason to believe Walking Man had been in England and France before its arrival in North America.

MacLaren’s Financial Troubles [ 33 ] MacLaren began in or about 2003 to experience severe financial difficulties. This lasted until at least 2006. During that period, MacLaren cut back considerably on expenses and on staffing. As a result, there was a period of time (including November 2006 when the shipment back from Gatineau was arranged) that MacLaren did not have a registrar or a technician.

Termination and Notification of Intent to Return [ 34 ] As a result of the failure of the transaction and MacLaren’s existing financial problems, MacLaren advised the Plaintiffs by notice letter dated June 14, 2004 (“the Termination Letter”) that it could no longer store Walking Man and wished to return the work to the Plaintiffs. Mr. Martin Johnson, the Plaintiffs’ agent expected the Termination Letter as he knew the transaction could not proceed and why. However, the Plaintiffs did not accept the return of Walking Man . Instead, Mr.

Johnson insisted that MacLaren deliver documents as to conditions to the right of return not found in the Loan Agreement, some documentation which MacLaren would never be in a position to provide such as information and documentation into authenticity and provenance. As a result, MacLaren was saddled with the storage costs and unwanted possession. [ 35 ] The Plaintiffs did not cooperate with MacLaren’s clearly expressed intention to effect a return.

The Plaintiffs failed to provide a physical address at which the return could be made, and there is no ability to return a work of art unilaterally without a physical address. Now, over eight years later, the Plaintiffs take the position that the Termination Letter was not an effective termination of the Loan Agreement and was not a valid exercise of MacLaren’s right of return under that Agreement. Mr.

William Moore, the Plaintiffs’ expert admitted that there was no doubt MacLaren had a right of return and that MacLaren expressed its intention to return clearly and unambiguously. [ 36 ] Instead of facilitating the return of the sculptures, or making any efforts with MacLaren to do so, Mr. Johnson wrote MacLaren on July 5, 2004 with a list of demanded documentation, none of which was required of MacLaren under the Loan Agreement. Even though MacLaren had no obligation to comply with the demand, Mr. Johnson subsequently received all or virtually all of his demanded documentation.

But he still took no steps to facilitate return of Walking Man nor to take any steps to reclaim possession. Walking Man is still in MacLaren’s possession and the Plaintiffs have paid no money on account of storage charges owing since the Termination Letter.

French Investigation: November, 2004 – Impounding Order [ 37 ] The constitutional investigation in France became an international criminal investigation when on November 16, 2004, the Dept. of Justice applied to the Ontario Superior Court on behalf of the Republic of France and obtained an impounding order from Justice Forget allowing for evidence-gathering by an expert Gilles Perrault nominated by the French government to inspect the Rodin sculptures. [ 38 ] The inspection of Walking Man by Me. Perrault took place in Gatineau concluding December 10, 2004. It was an invasive inspection, in the course of which Me.

Perrault damaged Walking Man and other affected sculptures (“some small pieces came off the plasters”). Owners other than the Plaintiffs sought indemnification and damages from the Republic of France for the damages. Justice Forget ordered on December 21, 2005 that France pay indemnification and costs. He also ordered that the written Perrault report be sent

to France. Neither MacLaren nor anyone in Canada has ever seen the Perrault report nor has any knowledge of his conclusions. [ 39 ] The Ontario Court of Appeal ruled on November 20, 2006 upholding Justice Forget’s evidence-gathering order and sending order, but overturning the aspect of the sending order requiring compensation to any owner. It was expressly confirmed that no party was entitled to costs or indemnity for damages arising from and incurred in the course of an international criminal investigation.

The impounding was thereby vacated. [ 40 ] The Plaintiffs had not followed the legal proceedings and had still not taken any steps to reclaim Walking Man from Gatineau. So MacLaren re-engaged ETS to ship the Rodin sculptures back from Gatineau to MacLaren’s Toronto storage facility. MacLaren re-engaged ETS to return the Rodin sculptures back to its storage facility in Toronto operated by Pacific Art Services Ltd., (“Pacart”) which occurred two days later. The Rodin sculptures were stored without being opened. No external damage to the packing crates was noted.

November 2006 Shipment: Plaintiffs Claim Damage Occurs [ 41 ] Walking Man was shipped from Gatineau to the storage facility called “Pacart” in Toronto on November 22, 2006. The Plaintiffs’ position in this litigation is that the damage to Walking Man occurred during that shipment. [ 42 ] MacLaren agrees that the damage most likely occurred sometime after the Perrault inspection in December 2004 and before the piece was uncrated at Pacart in September 2007. Ms.

Fynbo, (former managing director of MacLaren) stated as much in her cross- examination and MacLaren’s expert Susan Maltby came to the same conclusion in her report. There is no evidence that the piece was uncrated between being re-packed after the December 2004 inspection and the November 2006 shipment. The Plaintiffs contend that the piece was packed intact following the December 2004 inspection and then damaged during the November 2006 shipment to Pacart in Toronto.

Cause of Damage – Substandard Crating and Padding [ 43 ] MacLaren was responsible for the packing and shipping of Walking Man from Barrie to Gatineau, Que. in October 2003. MacLaren was also as noted responsible for packing Walking Man following the Perrault inspection in 2004. [ 44 ] When the piece could be moved in November 2006, Ms. Fynbo assumed responsibility for arranging the shipment from Gatineau to Pacart in Toronto. Ms. Fynbo confirmed during her cross-examination that such matters would normally be handled by the registrar or technician, because they are the people with the requisite special training.

However, because of MacLaren’s financial troubles, MacLaren did not at that time have a registrar or technician, such that Ms. Fynbo had to attend to the shipment of Walking Man herself, despite the fact that the task was outside of her knowledge and experience. [ 45 ] MacLaren’s expert Susan Maltby, came to the conclusion that the cause of the damage to Walking Man was the use of an inadequate crate and insufficient padding material. Ms. Maltby writes the following in the concluding

section of her expert report with respect to her September 2007 inspection at Pacart: We did however see a few of the crates and we were not impressed by them and felt that they did not offer sufficient protection to the works inside nor were they what we would consider best practice. When Walking Man was uncrated in 2007, I was surprised to see how little padding was in the crate, particularly at the bottom. Packing an object with insufficient padding and cushioning material makes it vulnerable to damage and/or breakage.

The amount of padding material present in the Walking Man crate did not appear, in my professional opinion, to be sufficient to protect the plaster from damage. Plaintiffs are Notified of Damage to Walking Man [ 46 ] Walking Man was not uncrated again until it was prepared for inspection on September 14, 2007 by art conservator Susan Maltby, at which time, the damage to it was discovered. The Plaintiffs claim total loss.

MacLaren claims that as an involuntary bailee and because of the Court Orders and decision of the Court of Appeal, it is not responsible for the damage and is not liable to indemnify the Plaintiffs. [ 47 ] The Plaintiffs claim, through their deponent/expert Mr. Moore, that it was negligent for MacLaren to have used the same crating and packing materials provided to MacLaren by the owners at the time Walking Man came into Canada, and relies on Ms. Maltby for support. But Ms. Maltby states: (

a) there were no factors present in this case which suggested an art conservator should make recommendations on shipping; and (

b) MacLaren did not fail to provide adequate conservation, and that all interventive conservation steps we identified were implemented according to Ms. Maltby’s conservation treatment estimate.

[ 48 ] The evidence also is that there was no plan to re-crate the Rodin sculptures because there was no prospect of a multi-stop tour. [ 49 ] Mr. Moore also says that Walking Man suffered “progressive damage”. Ms. Maltby explained why this is not so. [ 50 ] In late September 2007, MacLaren’s then interim executive director John Lister had a telephone conversation with Mr. Johnson in which it was brought to Mr. Johnson’s attention the damage to Walking Man that was noted by Ms. Maltby during her inspection on September 14, 2007. [ 51 ] On October 19, 2007, Ms.

Fynbo confirmed by email to the Plaintiffs’ insurance broker (cc to Mr. Johnson) that “[w]e have just had condition reports done and one of the pieces is in poor condition. I[t] was received from Italy in poor condition and it has deteriorated.” Mr. Johnson knew that the damage was to Walking Man because of his prior conversation with Mr. Lister. The email did not mention Walking Man specifically, since Mr. Johnson knew already, and because Ms. Fynbo was being discrete with the Plaintiffs’ insurance broker. [ 52 ] Mr.

Johnson admitted that this was reason to make inquiry, but could not recall what occurred in that respect or what response he or the Plaintiffs made. Mr. Johnson admitted that it would have been “logical” for him to report this to the Plaintiffs, but that it was not a priority for him. Mr. Johnson clarified it was an issue he would have brought to the Plaintiffs’ attention. There is no suggestion that MacLaren had any reason to believe Mr. Johnson would not have brought this to the Plaintiffs’ attention. [ 53 ] In addition to Mr. Johnson knowing at least as late as October 19, 2007, Mr.

Moore knew about the damages to Walking Man at least as late as November 9, 2007. Mr. Johnson retained Mr. Moore just days after October 19, 2007. It is reasonable to infer that the damage to Walking Man would have been the first thing discussed, even before the formal commencement of Mr. Moore’s retainer on November 1, 2007. [ 54 ] MacLaren relies on the evidence that the Plaintiffs and their agents knew about the damages to Walking Man more than two years before the Statement of Claim was issued and that the limitations clock was ticking. Mr.

Johnson subsequently prompted the Plaintiffs at least twice, at the end of October 2007 and again on August 20, 2008. He was concerned that the Plaintiffs were “sitting on their rights” and should “put up or shut up”. Nonetheless, the Plaintiffs delayed until November 19, 2009, more than two years after knowing about the damage to Walking Man, even though Mr. Vogeli emailed Mr. Moore on June 8, 2009 to say “I’ll send you a draft statement of claim within the next few days.” [ 55 ] The Plaintiffs take the position that Mr.

Johnson sent an undated letter to the owners advising them of the fact of damage to Walking Man. He could not recall when he sent that letter but believed it was sometime in November 2007. Mr. Johnson testified that he had no knowledge beyond simply the fact of damage. The particulars of damage were found and reported upon by William Moore, former long-time executive director of MacLaren, on January 10, 2008 at the Pacart storage centre in Toronto in the presence of Ms. Fynbo. It is the Plaintiffs position that they are not caught by any limitations period.

Value of Walking Man [ 56 ] Originally appraised at between $250,000 and $425,000, the Plaintiffs evidence on this motion is that Walking Man is now worthless due to the extensive damage done during shipment to Toronto in November 2006. The Plaintiffs have adduced evidence from art experts and appraisers that the piece is now worthless. MacLaren has not put forward any evidence to the contrary. Counterclaim for Storage Costs [ 57 ] MacLaren counterclaims for its actual storage costs incurred for Walking Man, presently $96.30 per month.

The Plaintiffs were advised at various times by MacLaren, both before and during this action, about the costs that MacLaren was incurring and the Plaintiffs did not object. Indeed, the Plaintiffs were silent and did nothing. However, in November 2012 the Plaintiffs took issue with the storage costs and the quantum as being “significantly higher than the prevailing market rates”. The Plaintiffs have not served a Defence to Counterclaim nor have they provided any evidence of what they say the proper rate should be. ISSUE [ 58 ] The primary issue on this Rule 20

summary judgment motion is whether there is a genuine issue requiring a trial. In determining this overarching issue, a number of sub-issues have been raised as follows: (

a) preliminary motion to strike the affidavit of William Moore sworn November 13, 2012 and to strike, or give little or no weight to, the affidavit of Martin Robert Johnson sworn November 5, 2012; (

b) the limitations issue; (

c) liability;

(

d) damages; and, (

e) MacLaren’s counterclaim. ANALYSIS The Law – Rule 20 and the Full Appreciation Test [ 59 ] Rule 20.04 states that

summary judgment shall be granted if the court is satisfied that there is “no genuine issue requiring a trial” with respect to a claim or defence. In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and the judge may exercise any of the following powers for that purpose, unless it is in the interest of justice for such powers to be exercised only at a trial: 1. Weighing the evidence; 2. Evaluating the credibility of a deponent; and 3.

Drawing any reasonable inference from the evidence. [1] [ 60 ] In Combined Air Mechanical Services Inc. v. Flesch, [2] a five-member panel of the Ontario Court of Appeal developed the approach to be taken in interpreting the amended Rule 20. The Court of Appeal concluded there are three types of cases amenable to

summary judgment: 1. Where the parties agree that it is appropriate to determine an action by way of a motion for

summary judgment (does not apply in the case at bar); 2. Where the claims or defences are shown to be without merit (does not apply in the case at bar); and 3. Where the trial process is not required in the interest of justice. [ 61 ] In the cases where

summary judgment is sought under the third category of cases (where the trial process is not required in the interest of justice), the Court of Appeal developed the “full appreciation test”: In deciding if these powers should be used to weed out a claim as having no chance of success or be used to resolve all or part of an action, the motion judge must ask the following question: can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of

summary judgment, or can this full appreciation only be achieved by way of trial? We think this “full appreciation test” provides a useful benchmark for deciding whether or not a trial is required in the interest of justice. In cases that call for multiple findings of fact on the basis of conflicting evidence emanating from a number of witnesses and found in a voluminous record, a

summary judgment motion cannot serve as an adequate substitute for the trial process. Generally speaking, in those cases, the motion judge simply cannot achieve the full appreciation of the evidence and issues that is required to make dispositive findings.

Accordingly, the full appreciation test is not met and the “interest of justice” requires a trial. [3] [ 62 ] The Court of Appeal further stated in document-driven cases or where there are limited contentious factual issues or where the record can be supplemented to the requisite degree at the motion judge’s discretion by hearing oral evidence on discrete issues, the full appreciation test may be met. [4] [ 63 ] In deciding whether to grant

summary judgment, the motion judge must consider if this is a case where meeting the full appreciation test requires an opportunity to hear and observe witnesses, to have the evidence presented by way of a trial narrative, and to experience the fact-finding process first-hand. Unless a full appreciation of the evidence and issues is attainable on the motion record, the judge cannot be satisfied that the issues are appropriately resolved on a motion for

summary judgment. [5] [ 64 ] The new Rule 20 does not change the evidentiary obligations on a

summary judgment motion. Each side must put its “best foot forward” and the court is entitled to assume that the record contains all the evidence which the parties would present at trial. [6] [ 65 ] In response to evidence supporting a motion for

summary judgment a responding party may not rest solely on the allegations or denial in the party’s pleadings, but must set out, through admissible evidence, specific facts showing why there was a genuine issue regarding a trial. [7]

(

a) Preliminary Issue – Whether to Strike the Moore and Johnson Affidavits Positions of the Parties Position of MacLaren [ 66 ] Simply put, MacLaren’s position is that the affidavits of William Moore and Martin Johnson should be struck. MacLaren submits Mr. Moore is biased and cannot be an expert. Further, MacLaren submits that Mr. Johnson has no credibility. Position of the Plaintiffs [ 67 ] The Plaintiffs submit that the Moore affidavit not be struck and that it be given weight. It is a “red herring” to strike the affidavit on the basis of Mr. Moore’s bias.

Although he was angered and upset with the termination of his employment with MacLaren, he continues to be a large donor to this day. To say that he is motivated by spite and vindictiveness is not the case. Rather, MacLaren is motivated to strike Mr. Moore’s affidavit as it is not helpful to MacLaren’s case. The Plaintiffs submit that Mr. Moore is an expert and according to his Acknowledgement of Experts Duty, he is fair, objective and non-partisan. [ 68 ] As for Mr. Johnson, he is not tendering expert evidence. Mr.

Johnson’s guilty plea to tax evasion charges in August 2012 while relating to collateral transactions have nothing to do with this case. The Plaintiffs submit that those circumstances are irrelevant and that the Johnson affidavit should not be struck and given weight. Discussion/Findings [ 69 ] MacLaren contends that Mr. Moore cannot possibly be “fair, objective and non-partisan” even though he signed an Acknowledgement of Experts Duty dated November 6, 2012. This position is taken because: (

a) Mr. Moore is a disgruntled, terminated employee of MacLaren. As former director of McLaren, he harbors lingering resentment and ill-will about his termination years ago. Much of his affidavit blames MacLaren for his own oversights; (

b) Mr. Moore in every detail was the prime mover behind the acquisition of the Rodin sculptures by MacLaren, which directly led to MacLaren’s insolvency. [ 70 ] I am not persuaded that Mr. Moore is motivated by an unabated hatred of MacLaren so much so that his entire affidavit must be struck because of bias. Mr. Moore is in a unique position to give expert evidence which in this case is both necessary and reliable. I have read Mr. Moore’s affidavit which sets out his qualifications and experience, together with his experience with Walking Man . Mr. Moore inspected Walking Man on January 10, 2008.

His affidavit contains his evidence as to what he found on inspection and, ultimately, his opinion as to responsibility for damage to Walking Man. In my view, it is an unbiased reporting. [ 71 ] For these reasons, Mr. Moore’s affidavit will not be struck. Rather, it was considered with all of the other evidence and given the weight that it deserved. [ 72 ] As for the affidavit of Mr. Johnson, I have also reviewed same. While his evidence is not being tendered as expert evidence, MacLaren challenges his evidence on the basis that Mr.

Johnson has no credibility in these matters. [ 73 ] I have read the Johnson affidavit which sets out his dealings with the Plaintiffs and MacLaren. He also addresses his knowledge of damage to Walking Man and offers his opinion as to how Walking Man came to be damaged. [ 74 ] Mr. Johnson’s guilty plea in August 2012 to tax evasion charges stemming from collateral transactions is not relevant to Mr. Johnson’s involvement with the Plaintiffs, MacLaren and Walking Man.

His evidence is relevant to the issues arising on this motion and his affidavit will be permitted to stand subject to my credibility assessment and attribution to weight, if any. Conclusion [ 75 ] For these reasons, I dismiss MacLaren’s motion to strike the affidavits of Mr. Moore and Mr. Johnson. (

b) Limitations – Is the Plaintiffs’ Action Statute Barred by Operation of the Limitations Act , 2002? Position of the Parties

Position of MacLaren [ 76 ] MacLaren submits that this action was commenced on November 19, 2009. The Plaintiffs’ agent Martin Johnson knew on October 19, 2007 that “one of the pieces was in poor condition”, which knowledge is imputed to the Plaintiffs. Mr. Johnson and Mr. Moore discussed the matter before November 1, 2007. The Plaintiff Grant Vogeli is a commercial litigation veteran with over thirty years experience. He has experience in “art flips” and admitted he had “addressed his mind to the limitation implications”. [ 77 ] MacLaren relies on s. 5(1)(

b) of the Limitations Act, 2002 which states that a claim is discovered on the day in which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have [known of the claim]. [ 78 ] MacLaren submits that Mr. Vogeli as an experienced litigator had the abilities and was in the circumstances where he ought to have discovered the claim in October 2007. More importantly, he ought to have realized well before October 2009 that it could be judicially found that the limitation period started to run in October 2007. [ 79 ] It is submitted that Mr.

Vogeli made a strategic and improper amendment to the Statement of Claim before serving the Claim to the effect that it indicated his actual awareness of the limitations issue. [ 80 ] MacLaren submits that no trial is necessary to apply the admitted and agreed upon facts on this motion to find that this action is caught by the Limitations Act, 2002 and is therefore statute barred.

Position of the Plaintiffs [ 81 ] The Plaintiffs submit that the Limitations Act , 2002 provides that a cause of action arises when the Plaintiffs discovered or ought to have discovered the material fact on which they can commence a claim against the Defendant. The Act expressly identifies each aspect of knowledge that the Plaintiffs must have before a claim is discovered (the requirements being conjunctive in accordance with s. 5(1)(a)(i)-(iv)). [ 82 ] In

summary, the Plaintiffs submit that it is not appropriate to conclude on a motion for

summary judgment that they discovered their claim in September 2007 in light of all the important information that was not available to them. They assert that knowledge of the mere fact of some damage to one’s property is not sufficient to establish the discovery of a cause of action. They contend that there is a genuine issue requiring a trial regarding the limitation period issue and that the Plaintiffs did not on October 19, 2007 or on November 18, 2007 have sufficient knowledge to commence an action against MacLaren. Discussion/Findings [ 83 ] Relevant to the limitations issue is s. 5(1)(

a) and (

b) of the Limitations Act, 2002 (“the Act”) which provides: Discovery 5.

(1) A claim is discovered on the earlier of, (

a) the day on which the person with the claim first knew, (

i) that the injury, loss or damage has occurred, (ii) that the injury, loss or damage was caused by or contributed to by

an act or omission, (iii) that the act or omission was that of the person against whom the claim is made, and (iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and (

b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known the matters referred to in clause (a). 2002, c. 24 Sched. B, s. 5(1).

[84] On this issue, the Plaintiffs rely on s. 5(1)(

a) and MacLaren relies upon s. 5(1)(

b) of the Act. [85] It is argued by the Plaintiffs that it is not enough for a Plaintiff to simply know that he or she has suffered some loss ordamage. The Plaintiff must also know or ought to have known that the damages were “caused or contributed to” by some act oromission, and the identity of the wrongdoer, and that a legal proceeding is appropriate. Anderson v.

Laffin, at para.41 (ON SC). [86] The Plaintiffs deny MacLaren’s position that on or before November 18, 2007 they had sufficient knowledge to commencethe action against MacLaren. [87] The Plaintiffs submit the highest that MacLaren’s evidence can be put is that the Plaintiffs knew in or about September 2007that Walking Man had been damaged. However, Mr. Johnson (the plaintiffs’ agent to whom the fact of some damage was allegedlycommunicated) has sworn that he had no knowledge of: “the extent to the damage, i.e. whether it was a result of mere deterioration assuggested in Ms.

Fynbo’s email or of an unavoidable accident or because of some person’s negligence.” [88] Further, the Plaintiffs also rely on Ms. Fynbo’s evidence on cross-examination confirming that the Plaintiffs did not knowanything more than the fact of some damage having occurred. [89] When Ms. Fynbo was referred to the purported September 2007 conversation between Mr. Lister and Mr. Johnson, she gavethe following evidence: 572. Q.

So—and when you say you’re not aware of the details of that September conversation between Lister and Martin Johnson, Itake it you are not aware of whether they discussed the extent of the damage? A. Of—obviously not. 573. Q. All right. I take it you’re not aware of whether they discussed the cause of the damage or any potential cause? A. Obviously not. 574. Q. All right. A. ….if I can’t recall the detail. 575. Q. I take it you’re not aware of whether or not they discussed who was at fault, if anyone? A.

I don’t have any knowledge of that. [90] The Plaintiffs submit that there is no evidence in the record of the Plaintiffs learning at any time prior to January 2008 (whenMr. Moore inspected Walking Man on behalf of the Plaintiffs) of any of the following critical details: (

a) that MacLaren employees had travelled to Gatineau to crate Walking Man following the December 2004 Perrault inspection(such that MacLaren was responsible for crating the work); (

b) that, as confirmed by Ms. Maltby, the MacLaren employees crated Walking Man in a substandard crate with insufficient paddingmaterial; (

c) that Walking Man had been damaged to the point of destruction, rather than suffering material but normal degradation; or, (

d) that MacLaren, when it arranged for the November 2006 shipment to Toronto, had taken no particular step to ensure the safety ofWalking Man despite MacLaren’s knowledge that it was particularly fragile.

[ 91 ] It is the Plaintiffs’ position that it is not appropriate on a motion for

summary judgment to find they discovered their claim in September 2007 in light of all the important information not available to them. They contend that the knowledge of the mere fact of some damage to one’s property is not sufficient to establish the discovery of a cause of action. [ 92 ] Not surprisingly, MacLaren takes a much different view relying upon s. 5(1)(

b) of the Act. MacLaren’s position is that the Plaintiffs’ claim was discovered the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known [of the claim]. That person was Mr. Vogeli who not only was one of the Plaintiffs and owners of Walking Man but also an experienced commercial litigator previously experienced in “art flips”. It is submitted that Mr.

Vogeli being an experienced litigator had the abilities and was in the circumstances and ought to have discovered the claim in October 2007 and ought to have realized well before October 2009 that the limitation period started to run in October 2007. MacLaren also argues that its position is underscored by the amendment to the Statement of Claim by Mr. Vogeli before the claim was served. [ 93 ] In respect of discoverability, the imputation of knowledge from the Plaintiffs’ agents to the Plaintiffs was the subject of a number of concessions made by Plaintiffs’ counsel as follows: (

a) Mr. Johnson was the agent for the Plaintiffs in this matter; (

b) Mr. Johnson retained Mr. Moore and Mr. Moore was working for the Plaintiffs to prepare an expert report; (

c) as the Plaintiffs’ agents, the knowledge of Mr. Johnson and Mr. Moore is imputed to the Plaintiffs; (

d) the Plaintiffs do not contest that their agents had knowledge that some damage had occurred to Walking Man before November 19, 2007. [ 94 ] For the following reasons, I respectively disagree with the position of the Plaintiffs and find that as of October 19, 2007, Mr. Johnson knew or ought to reasonably have known of the damage to Walking Man. Further, as of November 9, 2007, Mr. Moore knew or ought to reasonably have known of the damage to Walking Man. This knowledge of either or both Mr. Johnson or Mr. Moore is imputed to the Plaintiffs. In addition, I find that Mr.

Vogeli had knowledge of the claim given his abilities and circumstances where he first ought to have known of the claim in October of 2007 well before October 2009. He drafted and issued the Statement of Claim on November 19, 2009. [ 95 ] First in respect of the knowledge of Mr. Johnson. [ 96 ] I find that the litigation clock starts to run from October 19, 2007. Ms. Fynbo confirmed by email to the Plaintiffs insurance broker (cc to Mr. Johnson) that “we have just had condition reports done. One of the pieces is in poor condition. I[t] was received from Italy in poor condition and it has deteriorated.

Sue Maltby, our conservator has indicated that, in her opinion, it should not be shipped.” (Affidavit of Hanne Fynbo, sworn June 22, 2012, para. 35, Exhibit W.) [ 97 ] Mr. Johnson knew that Walking Man was damaged because he had a prior conversation with John Lister in late September 2007. John Lister was MacLaren’s interim executive director. In that conversation, it was brought to Mr. Johnson’s attention the damage to Walking Man that was noted by Ms. Maltby during her inspection on September 14, 2007. Although Mr. Johnson could not remember this conversation, Ms. Fynbo clearly did.

In her affidavit at para. 34 she deposes that Mr. Lister informed her of that very discussion and it was at this time after Ms. Maltby conducted her inspection on September 14, 2007 and at the time of the discussion with Mr. Lister that the Plaintiffs through Mr. Johnson would have been advised of damage to Walking Man. [ 98 ] Even though Ms. Fynbo’s email of October 19, 2007 does not specifically mention Walking Man, at that point in time, no one was talking about any other piece of art with damage, deterioration, or condition problems. Mr.

Johnson in his cross-examination testified that it was an issue that he would have brought to the Plaintiffs’ attention. Further, there was no suggestion that MacLaren had any reason to believe that Mr. Johnson would not have brought this matter to the Plaintiffs’ attention. [ 99 ] I also find that in addition to Mr. Johnson knowing at least as late as October 19, 2007, Mr. Moore knew about the damages to Walking Man at least as late as November 9, 2007. In the chronology, Mr. Johnson retained Mr. Moore just days after October 19, 2007. The reason for Mr. Moore’s retainer was about the damage to Walking Man.

However, it is reasonable to conclude that even before the formal commencement of the formal retainer on November 1, 2007 Mr. Johnson and Mr. Moore would have discussed the damage to Walking Man as Mr. Moore’s inspection of that piece was the very basis of his retainer. [ 100 ] Also, I accept the evidence of Ms. Fynbo at para. 37 where she deposes that Mr. Johnson subsequently prompted the Plaintiffs at least twice, at the end of October 2007 and on August 20, 2008 at Exhibit Y. [ 101 ] Exhibit Y is a letter from Martin Johnson to the owners of the Rodin plasters including the owners of Walking Man.

He advises them that he has placed insurance through Axis Insurance (attention Diane Baker). He has divided up his invoice between the parties based on the evaluation of the plasters and asked that they send payment directly to Diane Baker. He reports that he has engaged William Moore to attend the works in Toronto and prepare a condition report prior to the works being released from the care and control of MacLaren. He goes on to state: “I understand from a recent conversation with Mr. Moore that there is some concern regarding the

condition of Walking Man and damage the work has sustained over the years”. Mr. Johnson went on to enclose insurancedocumentation. [102] Mr. Johnson prompts Mr. Vogeli by email dated August 20, 2008 found at page 11 of Exhibit Y to the Fynbo affidavit. Itappears that the owners of Walking Man were non-responsive. In the end, Mr. Johnson was looking for instructions.

He wrote “If it isnot your intention to do anything, then please let everyone know.” [103] These communications are consistent with the position of MacLaren that the Plaintiffs knew of the damage to Walking Man asearly as October 19, 2007, but were, according to Mr. Johnson in his cross-examination, “sitting on their rights” and should “put up orshut up”[8] [104] The evidence supports that Mr. Johnson knew at least as late as October 19, 2007 about the damage to Walking Man.

As for Mr.Moore, he knew about the damages to Walking Man at least as late as November 9, 2007 and even before November 1, 2007 - evenbefore the formal commencement of his retainer. [105] Second, I now come to a consideration of the knowledge of Mr. Vogeli and the application of s. 5(1)(

b) of the Limitations Act,2002. [106] As for Mr. Vogeli, he was a practicing lawyer specializing in commercial litigation. He had over 30 years experience. He haddone an “art flip” before and was familiar with the tax nature of the transaction. He was also an art collector and was part owner ofWalking Man. Mr. Vogeli drafted and issued the Statement of Claim regarding Walking Man on November 19, 2009.

At pages 115-119of the transcript of his Examination for Discovery taken January 10, 2012, he was asked a series of probing questions in respect of hisknowledge about damage to Walking Man and why he came to amend paragraph 12 of the Statement of Claim by stroking out the wordsSeptember 2007 as to when Mr. Moore discovered Walking Man had been severely damaged. [107] Mr. Vogeli testified that Mr. Moore found out about the severe damage in January 2008. Ms. Fynbo’s email of October 19,2007 was put to him. While he did not know, neither did Mr. Vogeli deny that Mr.

Moore was aware of the condition of Walking Man inOctober of 2007. [108] When asked why Mr. Vogeli amended paragraph 12 of the Statement of Claim by striking out reference to September 2007, Mr.Vogeli replied that there were two aspects to his amendment. First, he wished to correct when the damage was discovered – not inSeptember 2007 and second, “that there may have been an element of me addressing the limitation issue as part of that”[9]. [109] By his own acknowledgement, Mr. Vogeli was aware the limitation clock was ticking. He wrote Mr.

Moore in June of 2009about the draft Statement of Claim he was working on. He issued that Statement of Claim five and a half months later on November 19,2009. I find he did so outside the limitation period. He should have issued the Statement of Claim on or before October 18, 2009. I amsatisfied on all the evidence that the limitation period commenced to run on October 19, 2007. The two year limitation period expiredOctober 19, 2009. [110] Mr. Vogeli is imputed to have the knowledge of Mr. Johnson and Mr. Moore. Mr. Johnson knew of the damage to WalkingMan on October 19, 2007 and Mr.

Moore also knew of that damage on November 9, 2007 or even before November 1, 2007 as early asOctober 2007, as part of his retainer discussion with Mr. Johnson. [111] As well, Mr. Vogeli was live to the question of imputation of knowledge. He was also live to the question of the running of alimitation period. I find as an experienced litigator he had the abilities and was in the circumstances where he ought to have discoveredthe claim in October 2007.

Although he made a “strategic” amendment to paragraph 12 of the Statement of Claim to reflect hislimitation concerns, the amendment was of no assistance as the issuance of the Statement of Claim was out of time. [112] While counsel for the Plaintiffs relies upon s. 5(1)(a)(i)-(iv) of the Limitations Act, 2002, in my view, on the entire evidentiaryrecord, on the facts I have found and on the applicable authorities, I accept MacLaren’s argument that s. 5(1)(

b) applies in this case. InTayview Properties Inc. et al v. The Corporation of the Town of Perth, [2010] ONSC 5243 , Sheffield J. considered s. 5(1)(

b) ofthe Limitations Act, 2002. The Defendant moved for an order for

summary judgment dismissing the action against it on varied groundsincluding that the Plaintiffs’ action was barred by the Limitations Act, 2002. [113] In that case, the question became whether a reasonable person with the experience of the Plaintiffs and in the describedcircumstances ought to have discovered that the land was defective. The Plaintiffs were experienced land developers. Sheffield J. founda reasonable land developer acting diligently should have completed further land inspections before investing considerable amounts oftime and money in a development project.

He found the action statute barred by virtue of the Limitations Act, 2002. [114] In the case at bar, I find an experienced commercial litigator and art owner in the circumstances of Mr. Vogeli should not havewaited for October 18, 2009 to arrive without issuing the Statement of Claim. [115] In Arthur v. MacMillan et al, [2012] ONSC 1449 , the court consided a motion for

summary judgment and dismissedthat Plaintiff’s claim on the basis that it was statute barred pursuant to the Limitations Act, 2002. [116] The issue was whether s. 5(1)(

b) applied. [117] At paragraph 33 in Arthur, the court held: In Ferrara v. Lorenzetti, Wolfe Barristers and Solicitors, 2012 ONSC 151 , [2012] O.J. No. 135 Allen J. of the Ontario SuperiorCourt expressed the onus on a plaintiff responding to a motion for

summary judgment based on a limitations defence in the followingwords at paragraph 15:

Therefore, on a motion for

summary judgment brought by a defendant relying on a limitations defence, the plaintiff seeking to defeat theoperation of the limitation period has the onus to rebut the presumption that the limitation period is operative by showing through therecord that there is a genuine issue as to when a claim arose. [118] The court went on to find that a reasonable person in Arthur’s position would have known, at the very latest, by February 2005,when the Statement of Defence was delivered that there was a potential problem arising out of the price allocation clause in theAgreement of Purchase and Sale. [119] At para. 35, that court held: In my opinion, on the facts of this case, a trial is not required in order to obtain a full appreciation of the evidence and the issues in orderto make dispositive findings.

A reasonable person with the abilities and in the circumstances of Arthur first ought to have known that hehad a potential claim against McMillan no later than February 2005. The Statement of Claim in this action was issued more than twoyears after that date. It is incumbent upon Arthur to prove that a reasonable person in his position would not have realized that he had apotential claim against McMillan as of February 2005. On the evidence presented on this motion, he has not done so.

In my opinion, thecircumstances would not change if the evidence were to be presented at a trial. [120] Taylor J. concluded that the action was commenced after the expiration of the limitation period and therefore the action wasdismissed. [121] In our case, the Plaintiffs’ agents knew not only of a potential problem regarding the condition of Walking Man as of October19, 2007. They knew Walking Man’s condition had seriously deteriorated and that the sculpture was damaged. [122] In Kowal and Ciddio v.

Shyiak and Giant Builders (Thunder Bay) Inc., [2012] ONCA , the Ontario Court of Appealconsidered s. 4 (the two year limitation period) and s. 5(1)(

a) and (b) (discovery), and s. 5(2) (presumption of knowledge). [123] This case was an appeal from the dismissal of a

summary judgment motion by the motion judge. At para. 18, the court held: Certainty of a defendant’s responsibility for the act or omission that caused or contributed to the loss is not a requirement. It is enoughto have prima facie grounds to infer that the acts or omissions were caused by the party or parties identified… …There is ample evidence on which to base a claim against the appellants without the necessity of obtaining any expert opinions.

In ourview, the motions judge erred in concluding that the respondents needed to obtain expert opinions before determining that they had acause of action against the appellants. Indeed, cumulatively, the three reports were inconclusive… [124] The Ontario Court of Appeal held the respondent’s action against the appellants was too late and was barred by s. 4 of theLimitations Act. [125] In our case, there is ample evidence on which the Plaintiffs could base a claim against MacLaren. They knew as of October 19,2007 that Walking Man was damaged and that Walking Man had been in the possession and control of MacLaren.

The limitation clockstarted to run against MacLaren. The Plaintiffs did not need to obtain an expert opinion before determining if they had a cause of actionagainst MacLaren. Further, the Plaintiffs could not stop the limitation period from running while they waited for an expert report – inthis case, Mr. Moore’s report in January 2008. [126] In Sian and Sian v. Kooner, Weingarden et al, [2012] ONSC 692 , Thomas J. considered motions under rule 20 forsummary judgment on the grounds that the action was commenced more than two years after the date on which the claim wasdiscovered.

At para. 51 he found: The powers of the motions judge contained in rule 20.04(2.1) should only be exercised to “weed out” claims if an appropriate answer isforthcoming on a consideration of the following question: “can the full appreciation of the evidence and issues that is required to makedispositive findings be achieved by way of

summary judgment, or can this full appreciation only be achieved by way of trial? (CombinedAir Mechanical Services Inc. v. Flesch, 2011 ONCA 764, at para. 50 (“Combined Air”)). [127] Further, at para. 53 held: On the narrow limitation defence I am completely satisfied, that by combining the oral evidence with affidavits filed, I can have a fullappreciation of the evidence and the issues that might be brought to bear on this defence and that waiting for a trial is unnecessary. Inaddition, I am in a perfect position to exercise the powers contained in rule 20.04(2.1) with respect to this discrete issue.

I come to thoseconclusions recognizing that it is often inappropriate to dispose of the discoverability issue on motion since a factual analysis isnecessary (Alexis v. Darnley, 2009 ONCA 847, 100 O.R. (3d) 232, at para. 12). However, with the sworn evidence I have received, I amcontent that I can make the necessary findings of fact. [128] Thomas J. considered the limitation period provisions found at s. 4 and 5 of the Limitations Act, 2002.

[129] He considered the presumption contained in s. 5(2) of the Act at para. 55: The presumption contained in s. 5(2) above makes it clear that a claim is discovered when the criteria in s. 5(1)(

a) are satisfied unless theplaintiffs here can prove the contrary. Since the defendants have pleaded the limitations defence, the plaintiffs must prove that the causeof action arose within the statutory limitation period (Alexis v. Toronto Police Service Board (2009), 187 C.R.R. (2d) 194 (Ont. S.C.), atpara. 35). [130] At para. 58, he also considered the Plaintiffs’ duty of due diligence: I must consider whether this is a case that requires that kind of advice or opinion to establish the facts. In addition, the issue of theplaintiff’s duty of due diligence cannot be ignored.

Therefore it must be asked whether the plaintiffs with due diligence could haveobtained all the necessary information within two years of the time they learned about the sale of the land. [131] The issue of due diligence and the potential necessity of an expert opinion was considered in by the Ontario Court of Appeal inSoper v. Southcott (1998), (ON CA), 39 O.R. (3d) 737 (C.A.) at p. 744, the Ontario Court of Appeal held: Limitation periods are not enacted to be ignored.

The plaintiff is required to act with due diligence in acquiring facts in order to be fullyapprised of the material facts upon which a negligence or malpractice claim can be based. This includes acting with diligence inrequesting and receiving a medical opinion, if required, so as not to delay the commencement of the limitation period. In some cases, amedical opinion will be necessary to know whether to institute an action. In other cases, it will be possible to know material factswithout a medical opinion, and the medical opinion itself will simply be required as evidence in the litigation.

In the latter instances, thetime of receipt of the medical opinion is immaterial to the commencement of the running of the limitation period. [132] The Supreme Court of Canada in M.(K.) v. M.(H.), [1992] 3. S.C.R. 6, at p. 30 also commented about the duty of diligence: Finally, plaintiffs are expected to act diligently and not “sleep on their rights”; statutes of limitation are an incentive for plaintiffs to bringsuit in a timely fashion. [133] In our case, I find the Plaintiffs did not act with due diligence. Waiting for the expert report while time ran did not stop thelitigation clock from running. Mr.

Johnson’s two prompting reports to the Plaintiffs – one as late as August 20, 2008 (Fynbo affidavitExhibit

Y) chided the Plaintiffs to get moving with their claim and not sit on their hands doing nothing. [134] At para. 73 in Sian, Thomas J. concluded: I find that a reasonable person with the plaintiffs’ abilities and in their circumstances ought to have known all the material facts necessaryto bring this claim in 2006.

Any cause of action against these moving parties therefore expired before May 4, 2009, when the presentclaim was issued. [135] He concluded that there was no genuine issue requiring a trial, allowed the defendant’s motions and dismissed the plaintiffs’action against them. [136] In Soper (supra), the Ontario Court of Appeal considered an appeal brought from the dismissal of the appellants’ actionpursuant to rule 20 of the Rules of Civil Procedure.

The motion judge held that the respondent doctor had established there was nogenuine issue for trial based on his finding that the appellants’ claim for medical malpractice was statute barred under s. 17 of the HealthDisciplines Act, R.S.O. 1990, c. H. 4. The Ontario Court of Appeal dismissed the appeal. The court considered the due diligenceobligation on a Plaintiff within the discoverability context. [137] At para. 15, the court cited Borins J. in Aguonie v.

Galion Solid Waste Material Inc. (1998), (ON CA), 156 D.L.R. (4th) 222, at p. 235-236: Where a defendant pleads a statutory limitation period, the plaintiff has the burden of proving that the cause of action arose within thelimitation period. (Clemens v. Brown (1958), (ON CA), 13 D.L.R. (2d) 488 (Ont. C.A.) at p. 491). Where a defendantbrings a motion for

summary judgment based on a statutory limitation period and the plaintiff adduces evidence giving rise to materialfacts requiring a trial in order to evaluate credibility, weigh evidence and draw factual inferences, if the defendant satisfies the court thatthere is no issue of fact requiring a trial for its resolution, the defendant will have satisfied the requirements of rule 20. The limitationdefence then will have been made out. [138] Further, at para. 22 the court held: Limitation periods are not enacted to be ignored.

The plaintiff is required to act with due diligence in acquiring facts in order to be fullyapprised of the material facts upon which a negligence or malpractice claim can be based.

[ 139 ] Having considered the relevant authorities, I return to the guiding principles in Combined Air . At para. 50, the Ontario Court of Appeal stated that the judge hearing a motion for

summary judgment must ask the following question: Can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of

summary judgment or can this full appreciation only be achieved by way of a trial? [ 140 ] In our case, I answer the question in the affirmative. On a full appreciation of the evidence and the issues, this court is capable of making dispositive findings by way of

summary judgment and a trial is not required to achieve this full appreciation. [ 141 ] The critical issue is whether the Plaintiffs’ claim is statute barred pursuant to the Limitations Act, 2002. [ 142 ] On the complete and fulsome evidentiary record before me, and upon consideration of the statutory provisions of s. 4, s. 5(1)(

a) and (b), s. 5(2) of the Limitations Act, 2002 and the applicable legal authorities, I am fully satisfied that the Plaintiffs commenced their claim on November 19, 2009 – beyond the two year limitation period. [ 143 ] The Plaintiffs’ agent Mr. Johnson knew of the damage to Walking Man as early as October 19, 2007 and Mr. Moore knew shortly thereafter between late October to November 9 th , 2007. That knowledge is imputed to the Plaintiffs. [ 144 ] Further, a reasonable person with the abilities and in the circumstances of Mr.

Vogeli ought to have known that he had a potential claim against MacLaren no later October 19, 2007. The Statement of Claim which he drafted was issued on November 19, 2009 – more than two years after October 19, 2007. He was live to the limitation issue when he amended the Statement of Claim to remove the date of September 2007 as a date when allegedly Mr. Moore first discovered that Walking Man had been severely damaged. [ 145 ] The Plaintiffs have not satisfied their onus to prove that a reasonable person in Mr.

Vogeli’s position would not have realized that they had a potential claim against MacLaren as of October 19, 2007. I am convinced that the circumstances would not change if the evidence was presented at a trial. CONCLUSION [ 146 ] For the reasons above, I conclude that there is no genuine issue requiring a trial as to whether the Plaintiffs’ action is statute barred. Based upon my findings of fact and application of s. 5(1)(

b) of the Limitations Act, 2002, I conclude that the Plaintiffs ought to have commenced their action before October 19, 2009. Rather, their claim was commenced after the expiration of the limitation period. Accordingly, the action of the Plaintiffs Deluca and Vogeli is statute barred and therefore dismissed. [ 147 ] For these reasons, having ruled that the action of the Plaintiffs Deluca and Vogeli is dismissed against MacLaren, it becomes unnecessary for me to decide the issues ( c. liability ) and ( d. damages ). e.

MacLaren’s Counterclaim [ 148 ] MacLaren counterclaims for its actual storage costs incurred for Walking Man, presently $96.30 per month. The Plaintiffs were advised at various times by MacLaren, both before and during this action, about the costs that MacLaren was incurring and they did not object. Indeed, the Plaintiffs were silent and did nothing. However, in November 2012 the Plaintiffs took issue with the storage costs and the quantum being “significantly higher than the prevailing market rates”.

The Plaintiffs have not served a Defence to Counterclaim nor have they provided any evidence of what they say the proper rate should be. [ 149 ] The Plaintiffs dispute the amount claimed and assert that MacLaren has not identified what specific portion of the claim is attributable to storage of Walking Man nor what the current amount is. The Plaintiffs take the position MacLaren is not entitled to

summary judgment on the counterclaim. [ 150 ] With respect, I disagree. The counterclaim is proven for the following reasons. [ 151 ] I have considered the evidence of Ms. Fynbo contained in her affidavit at p.21, paras. 47 and 48. Her evidence is supported by an answer given by MacLaren on an undertaking. A

summary of this evidence is filed along with a document attached to the Defendant’s Reply of this motion for

summary judgment. [ 152 ] The evidence supports the claim for storage regarding Walking Man from June 2004 to end of the first quarter of 2013 in the amount of $7848.45. The latter number is based on a figure of $96.30 per month or, in the alternative, the sum of $288.90 per quarter. [ 153 ] I find that MacLaren is entitled to storage charges in the amount of $7848.45 from June 2004 to the end of the first quarter of 2013 (March 31, 2013). [ 154 ] In addition, I find MacLaren is entitled to judgment for storage charges for quarter two and quarter three of 2013.

The charges for each of those quarters is the sum of $288.90. [ 155 ] I also find in favour of MacLaren for storage charges for the month of October, 2013 in the amount of $96.30. [ 156 ] In total there shall be judgment in the amount of $8522.55 against Dino Deluca and Grant Vogeli jointly and severally in favour of MacLaren. MacLaren has not proven its claim for prejudgment interest. However, MacLaren is entitled to post-judgment interest on the sum of $8522.55 at the prevailing rate of interest set out in the Courts of Justice Act.

COSTS [ 157 ] If the parties are unable to resolve the issue of costs, this issue shall be determined by way written submissions. Counsel shall exchange a concise statement of position no longer than two pages, costs outline, draft bill of costs and applicable legal authorities within the next 14 days. Those written submissions are to be filed with my judicial assistant at Barrie within that time period. [ 158 ] Given these reasons, I strongly recommend Mr. Deluca and Mr. Vogeli take immediate steps for the return of Walking Man to them and thereby stop storage charges which continue to accrue. DiTomaso J. Released: November 6, 2013