DATE: 20020226 DOCKET: C36909
COURT OF APPEAL FOR ONTARIO
RE:
MARJORIE BRIMO (Plaintiff/Appellant) – and – CHARTWELL CARE CORPORATION and STEPHEN A. SUSKE (Defendants/Respondent)
BEFORE:
CHARRON, GOUDGE AND BORINS JJ.A.
COUNSEL:
Richard E. Anka
for the appellant
Richard B. Jones
for the respondent
HEARD:
February 22, 2002
On appeal from the order of Justice Harry LaForme dated July 31, 2001.
E N D O R S E M E N T
Released Orally: February 22, 2002
[1] This is an appeal by the plaintiff from the dismissal of her action against Stephen A. Suske, an officer and director of the corporate defendant. For the reasons that follow, we would allow the appeal.
[2] The motion judge dismissed the action against Mr. Suske on two grounds: (1) that the statement of claim failed to disclose a reasonable cause of action against him as required by rule 21.01(1)(b), and (2) applying rule 21.04(2), that there was no genuine issue for trial in respect to the two issues which the motion judge discussed under the heading of negligent misrepresentation. In regard to the second ground, he found as a fact that Mr. Suske was acting in his capacity as C.E.O. of the corporate defendant and that the misrepresentations which it is claimed he made did not constitute negligent misrepresentations.
[3] In our view, the motion judge erred in respect of both grounds. As for the first ground, the statement of claim in paragraphs 1, 15 to 20, 22, 25 and 34 plead the facts in support of the plaintiff’s claim against Mr. Suske and it is not plain and obvious, giving the statement of claim a generous reading, that the plaintiff’s claim cannot succeed.
[4] As for the second ground, on the evidence there are genuine issues for trial in respect to both conclusions reached by the motion judge. On the evidentiary record it was not open to him to make these findings.
[5] Therefore the appeal is allowed with costs. There will be an order that the motion is dismissed with costs, including the costs of the motion before the master. We fix these costs at $2,500 plus disbursements and GST for the motion before LaForme J. and $750 plus disbursements and GST for the motion before the master. As for the costs of the appeal, after considering the appellant’s bill of costs and her offer to settle the appeal, costs are fixed in the amount of $5,000, inclusive of disbursements and GST.
“Louise Charron J.A.”
“S. T. Goudge J.A.”
“S. Borins J.A.”