Summary

39912

Gershon (Jerry) Greif, in his capacity as liquidator of the estate of the late Tauba (Tusia) Magien v. Samuel Luft

(Quebec) (Civil) (By Leave)

Keywords

Prescription — Extinctive prescription — Suspension — Impossibility to act — Whether an elderly person who is vulnerable and in a relationship of trust with a family member is in the impossibility to act, in the sense of art. 2904 of the Civil Code of Québec — Whether money that is borrowed from a vulnerable elderly person can be acquired through extinctive prescription, given the law of trusts — Whether the Court of Appeal erred in changing the date that prescription started running against the applicant, given that the trial judge fixed the date after the hearing and evaluating the credibility of all other evidence.

Summary

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The applicant, Gershon (Jerry) Greif, is the son and sole heir and liquidator of the estate of his deceased mother, Tauba Magien Greif (“Tusia”). The respondent, Samuel Luft, is the nephew by marriage of Tusia and was a financial portfolio manager. After Tusia’s death in 2014, the applicant found financial documents suggesting Tusia had given large sums of money to the respondent. The applicant sent a mise en demeure in September 2016 and instituted an action against the respondent claiming the unpaid sums of $852,552 in October 2016. The respondent claimed he had paid back everything owed. He also pleaded that the action was prescribed since his last payment to Tusia dated back to 2004 and he had given her a statement of account at that time summarizing all money refunded.

The Superior Court of Quebec granted the applicant’s action in part and ordered the respondent to pay the applicant $541,593.44. It held the action was not prescribed since the applicant only discovered the claim in 2014. It rejected the argument that the prescriptive period began running in 2004, since Tusia was in the impossibility to act, which suspended the period. The Quebec Court of Appeal unanimously allowed the appeal and dismissed the action, holding that the action was prescribed. The conclusion that Tusia was in the impossibility to act thereby suspending prescription was incompatible with the evidence.

Lower Court Rulings

February 28, 2019
Superior Court of Quebec

2019 QCCS 637, 500-17-096167-161
Applicant’s action granted in part; respondent’s application to dismiss action as abusive and frivolous dismissed; declaration that action not prescribed; respondent ordered to pay applicant sum of $541,593.44
September 14, 2021
Court of Appeal of Quebec (Montréal)

2021 QCCA 1387, 500-09-028229-193
Appeal allowed, action dismissed