CITATION: Bot Construction (Ontario) Limited v. Dumoulin, 2007 ONCA 159

DATE: 20070312

DOCKET: C45563

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

[1] The 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.

[2] As 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.

[3] We 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.

[4] The appellants are entitled to a modest costs award of $3,000.00, all inclusive.