Court of Appeal for Ontario

Citation: Dewan v. Burdet, 2007 ONCA 752

Date: 2007-11-05

Docket: C45765

Before: Rosenberg, Cronk and Lang JJ.A.

Between:

Patrick Dewan, Domicile Developments Inc., 1436984 Ontario Ltd., Amira Gabriel, 1496055 Ontario Inc., 117490 Canada Ltd., and Sheila Eberts

Plaintiffs/Applicants (Respondents in appeal)

and

Claude Alain Burdet, In Trust

Defendant/Respondent (Appellant)

Between:

Claude-Alain Burdet and Claude-Alain Burdet, In Trust

Plaintiffs (Appellants)

and

Amira Gabriel, Pat Dewan, Grant Hooker, The Estate of Sheila Eberts, Deceased, Marlene Shepherd, Gertrude Shepherd, Robert Thompson, Mark Brandt, 1436984 Ontario Ltd., Pierre Wistaff, The Estate of Réal Wistaff, Deceased, Stan Morris, 117490 Canada Ltd., Malcom Morton, Ian Davidson, 1258963 Ontario Inc., and David Dwoskin

Defendants (Respondents)

Counsel:

Lawrence F. Wallach for the appellant Claude-Alain Burdet

J. Stephen Cavanagh for the respondent David Dwoskin

Kenneth Radnoff, Q.C. for the respondents Amira Gabriel, Pat Dewan and Gertrude Shepherd et al.

Charlene Kavanagh for the respondents Malcom Morton, Ian Davidson, 1258963 Ontario Inc.

Heard and released orally: October 5, 2007

On appeal from the order of Justice Paul F. Lalonde of the Superior Court of Justice dated June 23, 2006.

ENDORSEMENT

[1] We are satisfied that the motion judge properly struck out the claim against Mr. Dwoskin. The amended claim, even read generously, fails to articulate a valid cause of action. The two alleged claims appear to be conflict of interest and defamation. As to the former, on the facts pleaded there was no conflict of interest. As to the defamation claim, it fails to set out the words complained of with reasonable certainty, clarity or particularity.

[2] In oral argument counsel for the appellant suggested that the appellant was alleging interference with economic relations. However, no such cause of action was alleged in the amended statement of claim. The claim against Mr. Dwoskin was properly struck out.

[3] The respondents concede that they did not seek a vexatious litigant declaration under s. 140 of the Courts of Justice Act. It is obvious that the appellant, Dr. Burdet, had no notice of any such application and that part of the order must be set aside.

[4] The respondents do argue, however, that the order should stand to the extent that it was made under rule 37.16 prohibiting the appellant Burdet from bringing any further motions in the "01 action". We do not agree. The history of this litigation has been prolonged apparently, in part, because the appellant failed to provide the information as ordered by the motion judge in 2002. And, the motion to cross-examine may have been misguided. However, that conduct does not fall within rule 37.16. On the record before us there has not been a multiplicity of frivolous or vexatious motions by Burdet in the 01 action.

[5] Finally, the motion judge struck out the appellants' entire statement of claim in the "06 action" on the basis that the claims as pleaded did not comply with the rules of pleading, disclosed no cause of action and on the basis that the action was frivolous and vexatious. We disagree with these conclusions in part.

[6] The appellants alleged multiple failures by one or more of the respondents to perform duties imposed on them by the Condominium Act or to otherwise act in accordance with their obligations under the Act. They seek relief in their pleading for the alleged non-performance of these statutory duties; for the alleged acts of non-compliance; and for associated unjust enrichment by the respondents.

[7] As properly conceded by the appellants' counsel before this court, the appellants' pleading, styled as an amended statement of claim dated May 4, 2006, leaves much to be desired. Nonetheless, assuming as the motion judge was required to do on the motions before him that the facts alleged in the pleading are true, we are satisfied that the pleading should not be struck without leave to amend in respect of the appellants' claims concerning: (1) the alleged non-performance by the respondents' of statutory duties under the Condominium Act; (2) the actions of the respondents that allegedly violated the provisions of that Act, including the alleged wrongful removal of the appellant Burdet as an officer and director of the condominium corporation; and (3) the related alleged unjust enrichment of the respondents.

[8] Accordingly, the decision of the motion judge to strike the appellants' pleading is set aside with respect to these causes of action and the appellants are granted leave to deliver a fresh as amended statement of claim dealing only with items one to three as described above.

[9] In all other respects, we agree with the motion judge's decision to strike the appellants' pleading in the 06 action in its entirety and without leave to amend.

[10] As to costs, the respondent Dwoskin is entitled to his costs of the appeal fixed at $6,130.12 inclusive of disbursements and G.S.T. The costs order of Lalonde J. will stand.

[11] The appellants are entitled to their costs of the appeal fixed at $8,000 inclusive of disbursements and G.S.T., payable jointly and severally by the remaining respondents.

Signed: "M. Rosenberg J.A."

"E.A. Cronk J.A."

"S.E. Lang J.A."