Court File and Parties
CITATION: Goodman & company, Investment Counsel Ltd. v. KBSH Capital Management Inc., 2008 ONCA 487
DATE: 20080619
DOCKET: C47987
COURT OF APPEAL FOR ONTARIO
WINKLER C.J.O., FELDMAN J.A. and LAX J. (ad hoc)
BETWEEN:
GOODMAN & COMPANY, INVESTMENT COUNSEL LTD.
Plaintiff (Respondent)
and
KBSH CAPITAL MANAGEMENT INC., ROCKWATER CAPITAL CORPORATION, MARIA MELIOUMI, JOHN HADWEN and GINA SCOLA
Defendants (Appellants)
Counsel: Kenneth A. Dekker, for the defendants (appellants) Sylvia M. Samuel for the plaintiff (respondent)
Heard & released orally: June 17, 2008
On appeal from the order of Justice Thomas R. Lederer of the Superior Court of Justice dated October 12, 2007.
ENDORSEMENT
[1] It is not plain and obvious that the allegations in para. 54 of the statement of defence cannot possibly succeed as a defence or partial defence to the claims.
[2] We are not persuaded that the decision of this court in Plaza Fiberglass Manufacturing Ltd. v. Cardinal Insurance Co., [1994] O.R. (3d) 663 (C.A.) is a bar to this pleading. As the court stated in Plaza at the end of para. 28:
…. However, where a loss is completely unconnected to a breach of duty, the loss cannot be attributed to the fiduciary. It cannot be the case that a fiduciary is responsible for all damages suffered by the complaining party regardless of their cause.
[3] We are therefore of the view that the motion judge erred in striking this paragraph of the statement of defence and we allow the appeal and fix costs in the amount of $7,500 inclusive of GST and disbursements.
“W. Winkler C.J.O.”
“K. Feldman J.A.”
“J.L. Lax J. (ad hoc)”