COURT OF APPEAL FOR ONTARIO
RE:
BOT CONSTRUCTION (ONTARIO) LIMITED (Plaintiff/Respondent) – and – MARCEL RENE DUMOULIN, also known as MARCEL JOSEPH DUMOULIN, LAILA DUMOULIN, 2022539 ONTARIO INC. o/a LAD CONSULTING, DAVID JAGGARD, JEFFREY DAVID TREMBATH, NORTHERN FENCING & GUARDRAIL CONTRACTING, 1621730 ONTARIO INC. o/a NORTHERN CONSTRUCTION AND MAINTENANCE and TOWANDA TIMBER LIMITED, KRISTI LIN TREMBATH, PAULA H. JAGGARD, MARAY CONSTRUCTION, DAWSON ROAD MINI STORAGE INC., LISA I. DUMOULIN, DYLAN BYRNES (Defendants/Appellants)
BEFORE:
LASKIN, FELDMAN and ROULEAU JJ.A.
COUNSEL:
Bonnie A. Tough
for the appellants
Reid Lester
for the respondent
HEARD & ENDORSED:
March 9, 2007
On appeal from the order of Justice Helen M. Pierce of the Superior Court of Justice dated May 11, 2006.
A P P E A L B O O K E N D O R S E M E N T
1The motion judge failed to take into account the cause of action in fraud. That cause of action has a measure of damages different from the measure of damages for breach of fiduciary duty.
2As a result of failing to take into account the plaintiff’s claim in fraud, the motion judge wrongly struck out certain paragraphs of the statement of defence. Although we agree that the defence allegations concerning whether the plaintiff sustained a loss of profits are not relevant, the other allegations in the defence that were struck seem to us to be relevant.
3We think that the appropriate order is to allow the appeal, set aside the order of the motion judge, and only strike out those portions of the defence relating to the plaintiff’s profits, but with leave to amend.
4The appellants are entitled to a modest costs award of $3,000.00, all inclusive.