COURT OF APPEAL FOR ONTARIO
DATE: 20001219
**DOCKET:**C34107
RE: JOHN BIGGERSTAFF, LYDIA BIGGERSTAFF, MICHAEL BOURRIE, CHRISTINE BOURRIE, GINA BRUNETTA, LUIGI BRUNO, MARIA BRUNO, LORIS DOTTO, MARIA DOTTO, JOHN FLAMMIA, MARY FLAMMIA, PETER HOFFMEISTER, GWENDOLYN HOFFMEISTER, EDI KACIN, ANGELA KACIN, ROBERT LEWIS, ANNA LEWIS, ANTHONY MARZIANO, SILVANA PILIECI-MARZIANO, ALBERTO MASSONE, GABRIELLA MASSONE, ANGELO MOLIGNANO, JANINE MOLIGNANO, JAROSLAW PIEKOS, LUCYNA PIEKOS, MICHAEL POLLARD, KRISTY POLLARD, ERIC RANDELL, NATHALIE RANDELL, ROBERT TYM, BRENDA TYM, PATRICK WALKER and PATRICIA WALKER and ROBERT BRUNETTA (Plaintiffs/Respondents) vs. 934169 ONTARIO LIMITED, 673880 ONTARIO LIMITED, GAETANO LUCCHESE, MICHAEL FELDMAN, THE CORPORATION OF THE TOWN OF CALEDON AND FOX REALTY CORP. (Defendants/Appellants vs. CHARLES M. LOOPSTRA (Third Party/Respondent)
BEFORE: GOUDGE, BORINS AND SHARPE JJ.A.
COUNSEL: Jonathan H. Fine
for the appellants
John C.L. Ritchie
for the respondent Charles M. Loopstra
Mary K. Grosso
for the respondents
HEARD: December 13, 2000
On appeal from the judgment of Justice Keith A. Hoilett dated February 9,2000.
E N D O R S E M E N T
[1] The motions judge applied the proper test on a motion for summary judgment and conducted the proper analysis. He examined the elements of the tort of negligent misrepresentation, then he reviewed the evidence in the motion record bearing upon the elements of the tort. Finally, he concluded that there was no evidence upon which the appellants’ claim for negligent misrepresentation in the third party claim could succeed and accordingly, as there was no genuine issue for trial, he dismissed the appellants’ claim for negligent misrepresentation.
[2] In approaching the motion for summary judgment, the motions judge properly fulfilled the role of a motions judge hearing such a motion. We would therefore dismiss the appeal from the dismissal of the third party claim for damages for negligent misrepresentation.
[3] We would also dismiss the appeal from the motion judge’s refusal to remove Mr. Loopstra as the plaintiffs’ solicitor of record. In our view, having dismissed the claim for negligent misrepresentation the motions judge did not err in the exercise of his discretion in reaching this conclusion.
[4] However, we are concerned with the order of the motions judge striking out paragraphs 26 to 33 of the appellants’ statement of defence on a motion under Rule 20. In our view, without moving for judgment Rule 20 is not the appropriate procedural vehicle for use by a plaintiff in seeking to strike out a portion of a statement of defence.
[5] However, in the particular circumstances of this case, having upheld the order dismissing the negligent misrepresentation claim for want of proof, in our view, it would be an abuse of process to permit the estoppel defence contained in paragraphs 26 to 33 of the statement of defence to stand as it is based on the identical factual allegations. We would, therefore, not interfere with the order of Hoilett J.
[6] Accordingly, the appeals are dismissed with costs.
(signed) “S.T. Goudge J.A.”
(signed) “S. Borins J.A.”
(signed) “R.J. Sharpe J.A.”