Court File and Parties

Citation: Don Fry Scaffold Service Inc. v. Ontario (Legislative Assembly), 2008 ONCA 81

Date: 20080208

Docket: C47714

Court of Appeal for Ontario

Cronk, Gillese and Armstrong JJ.A.

Between:

Don Fry Scaffold Service Inc.

Plaintiff (Appellant)

and

Her Majesty the Queen in Right of Ontario and The Speaker for and on behalf of The Legislative Assembly of Ontario

Defendants (Respondents)

Counsel:

Max Shafir, Q.C., for the appellant

Jeffrey S. Percival, for the respondents

Heard and released orally: February 5, 2008

On appeal from the Order of Justice Beth A. Allen of the Superior Court of Justice dated August 9, 2007.

Endorsement

[1] As ultimately advanced during oral argument on this appeal, the appellant challenges the motion judge’s decision to strike its statement of claim, without leave to amend, primarily on the basis that the respondents’ acceptance of the bond in question was tantamount to the voluntary assumption by the respondents of a private law duty of care to the subcontractors – like the appellant – who worked on the respondents’ renovation project. The appellant also submits that the purpose of the bond was to protect the subcontractors and that the existence and purpose of the bond are sufficient to give rise to a duty of care and a fiduciary duty owed by the respondents to the appellant. We disagree.

[2] Even if we assume that the appellant’s statement of claim is amended to allege a fiduciary duty, the pleading contains no allegation that, when the respondents entered into the bond, they stood in a fiduciary relationship to the appellant or that their acceptance of the bond created such a relationship. In addition, there is no allegation in the pleading that the respondents are trustees under the bond or that they voluntarily assumed a duty to the appellant or any other subcontractor. Nor is there any pleaded assertion that the respondents made any representations to the appellant that could give rise to a duty of care or fiduciary obligation.

[3] Simply put, even on a generous reading of it, the appellant’s pleading fails to assert material facts concerning the relationship between the respondents and the appellant sufficient to ground a duty of care or a fiduciary duty owed by the respondents.

[4] Finally, and importantly, although the appellant argues that the language of the bond gave rise to a duty of care owed by the respondents to the appellant, the appellant’s pleading makes no mention of any language in the bond said to create such an obligation.

[5] Accordingly, for the reasons given, the appeal is dismissed. The respondents are entitled to their costs of the appeal, fixed in the total amount of $3,000, inclusive of disbursements and GST.

“E.A. Cronk J.A.”

“E.E. Gillese J.A.”

“Robert P. Armstrong J.A.”