COURT FILE NO.: 324/08
DATE: 20080718
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
WILLIAM KIN FONG CHU, KA-HAY COMPUTER CONSULTING INC. AND 2056545 ONTARIO INC.
Plaintiffs
(Moving Parties)
- and -
KISHORE CHOWDHURY O/A LIBERTY CAR AND TRUCK RENTAL, AND 1250320 ONTARIO INC.
Defendants
(Respondents)
Ben V. Hanuka for the Plaintiffs/
Moving parties
Sheldon Erentzen for the Defendants/
Respondents
HEARD at Toronto: July 18, 2008
LAX J.: (Orally)
[1] The issue before the Motion Judge was a question of mixed fact and law as to the materials and information that are required in a disclosure document under s.5 (4) of the Arthur Wishart Act, and ss.2 to 7 of Reg.581/00 of the Act. The Motion Judge found that the information that was provided to the plaintiffs was deficient and incomplete. This raised the question of whether it was merely incomplete and governed by s.6 (1) of the Wishart Act, or whether it amounted to no disclosure and was governed by s.6 (2) of the Act. These sections of the Act have not as yet been judicially interpreted in so far as this relates to a single disclosure document.
[2] There is judicial authority that the courts are reluctant to decide issues that would require the courts to consider novel or unsettled question of law without the full factual record. Applying this principle, there would be no reason to doubt the correctness of the Motion Judge’s decision to exercise her discretion to send the matter on for trial.
[3] The Motion Judge identified a number of disputed factual issues. She concluded that there was a genuine issue for trial with respect to the “effect of the incomplete disclosure on the franchisee in this case, or the sufficiency of the documentation in these particular circumstances.” The appellants contend that there were no disputed factual issues and that the only issue for determination was whether the defendant delivered a “disclosure document” within the meaning of the Act, and therefore the Motion Judge had all the information necessary to make this determination but failed to do so.
[4] Assuming that this is correct, whether or not the pamphlet delivered by the defendant in this case was a disclosure document is a fact-specific inquiry. In each case, the Motion Judge will be required to examine the purported disclosure document against the requirements of s.5 of the Act and the regulation in order to determine whether s.6 (1) or s.6 (2) of the Act applies.
[5] Notwithstanding the parties’ agreement that the interpretations of these sections are important to franchise law, I doubt that this raises a question of importance so as to warrant the attention of the Divisional Court. The content of disclosure documents will vary from case to case and is highly dependent on the facts of each case. A determination in any particular case will, in my view, have limited precedential value. Therefore, even if there is reason to doubt the correctness of the Motion Judge’s decision as the appellants contend, this case does not raise a question of sufficient importance on a question of law to warrant the attention of the Divisional Court.
[6] The appeal is therefore dismissed.
Lax J.
Date of Reasons for Judgment: July 18, 2008
Date of Release: July 22, 2008
COURT FILE NO.: 324/08
DATE: 20080718
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
WILLIAM KIN FONG CHU, KA-HAY COMPUTER CONSULTING INC. and 2056545 ONTARIO INC.
Plaintiffs
(Moving Parties)
- and -
KISHORE CHOWDHURY O/A LIBERTY CAR and TRUCK RENTAL, AND 1250320 ONTARIO INC.
Defendants
(Respondents)
REASONS FOR JUDGMENT
LAX J..
Date of Reasons for Judgment: July 18, 2008
Date of Release: July 22, 2008