Wolinsky et al. v. Assiniboine Credit Union Ltd., 2016 MBCA 15

• Judge: Monnin, MacInnes and leMaistre, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: December 07, 2015
• Jurisdiction: Manitoba
• Citations: 2016 MBCA 15;(2016), 323 Man.R.(2d) 312 (CA)

Wolinsky v. Assiniboine Credit (2016), 323 Man.R.(2d) 312 (CA);

      657 W.A.C. 312

MLB headnote and full text

Temp. Cite: [2016] Man.R.(2d) TBEd. FE.016

Karen Wolinsky, Jon Pesochin, Lee Pesochin, Joyce Rothman and Catherine Dyck (applicants/respondents) v. Assiniboine Credit Union Limited (respondent/appellant)

(AI 15-30-08405; 2016 MBCA 15)

Indexed As: Wolinsky et al. v. Assiniboine Credit Union Ltd.

Manitoba Court of Appeal

Monnin, MacInnes and leMaistre, JJ.A.

February 1, 2016.

Summary:

The applicants sought leave to commence an action in negligence against the respondent credit union. Their cause of action related to conduct in 2005, which they alleged they only became aware of on April 30, 2013, as a result of an article published in the Winnipeg Free Press. The applicants were granted leave to commence the action pursuant to s. 14(1) of the Limitation of Actions Act. The credit union appealed.

The Manitoba Court of Appeal allowed the appeal. The order granting leave to commence an action was set aside, with costs to the credit union.

Limitation of Actions - Topic 9304

Postponement or suspension of statute - General - When plaintiff has knowledge of facts leading to a conclusion of reasonable prospect of success - The applicants sought leave to commence an action in negligence against a credit union - Their cause of action related to conduct in 2005 (the credit union's involvement in a cheque-kiting scheme), which they alleged they only became aware of on April 30, 2013, as a result of an article published in the Winnipeg Free Press - The applicants were granted leave to commence the action pursuant to s. 14(1) of the Limitation of Actions Act - The credit union appealed - The Manitoba Court of Appeal allowed the appeal and set aside the order granting leave - The evidence demonstrated that the applicants were aware of the possible involvement of the credit union in a cheque-kiting scheme long before a period of 12 months prior to April 30, 2013 - Their failure to act on any of that information at the time they became aware of it was fatal to their application for leave under s. 14(1) of the Act - Based on that clear and unrefuted evidence, the motion judge either erred in law in finding that the applicants had met the burden of the fourth criterion in Cahill v. Mustapha Designs Inc. et al. (2014 MBQB) or so misapprehended the facts before him that he committed a palpable and overriding error or arrived at a conclusion that was unjust and not supported by the facts.

Cases Noticed:

Mirage Consulting Ltd. et al. v. Astra Credit Union Ltd., [2008] Man.R.(2d) Uned. 19; 55 C.P.C.(6th) 236 2008 MBQB 31, varied (2008), 231 Man.R.(2d) 269; 437 W.A.C. 269; 2008 MBCA 105, refd to. [para. 3].

Cahill v. Mustapha Designs Inc. et al. (2014), 311 Man.R.(2d) 138; 2014 MBQB 217, refd to. [para. 15].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 16].

Johnson v. Johnson (2001), 163 Man.R.(2d) 46; 269 W.A.C. 46; 2001 MBCA 203, refd to. [para. 19].

Green Brier Inn (Wpg.) Inc. v. Coca-Cola Bottling Co. et al. (2013), 289 Man.R.(2d) 155; 2013 MBQB 53, refd to. [para. 20].

Statutes Noticed:

Limitation of Actions Act, R.S.M. 1987, c. L-150; C.C.S.M., c. L-150, sect. 14, sect. 15(2), sect. 15(3), sect. 20(2), sect. 20(3), sect. 20(4) [para. 14].

Counsel:

S.J. Blake and A.P. Loewen, for the appellant;

D.G. Hill, for the respondents.

This appeal was heard on December 7, 2015, before Monnin, MacInnes and leMaistre, JJ.A., of the Manitoba Court of Appeal. The following judgment of the Manitoba Court of Appeal was delivered by Monnin, J.A., on February 1, 2016.