Court of Appeal for Ontario

Date: 2019-01-24 Docket: C65582

Judges: Strathy C.J.O., Pepall and Fairburn JJ.A.

Between

Brauti Thorning Zibarras LLP Plaintiff (Respondent)

and

Trung Nguyen and Ferreira Bettencourt LLP Defendant (Appellant)

Counsel

Trung Nguyen, acting in person

Matthew Gottlieb and James Renihan, for the respondent

Heard: January 23, 2019

On appeal from the order of Justice Heather McArthur of the Superior Court of Justice, dated May 25, 2018.

Appeal Book Endorsement

[1] This proceeding, commenced almost two and a half years ago, has been stalled as a result of a dispute over pleadings.

[2] The appellant appeals against an order of the Superior Court allowing an appeal from the Master and striking out certain allegations in his statement of defence and counterclaim, pursuant to r. 25(11)(b) as irrelevant and, therefore, scandalous and vexatious.

[3] We do not find it necessary to address the appellant's submission that the motion judge erred in determining the relevance of the impugned paragraphs based on the amended statement of claim.

[4] While it is not clear that the appellant sought leave to amend in the court below, the respondent does not object to leave being granted.

[5] In these circumstances, leave should be granted without prejudice to the ability of the appellant to plead the allegations of misconduct that were struck.

[6] The pleading sought, which should not be a pleading of evidence, is relevant to at least three issues. First, an issue not previously argued, as a defence to the respondent's claim for aggravated, exemplary and punitive damages; second, as a potential defence to other equitable claims; and third, if the agreement was ever amended as the plaintiff alleges, that the amendment was made in May 2014 or thereafter, and was the result of duress, undue influence or unconscionability. We would therefore grant leave to amend.

[7] We note, in passing, that in support of his position, the appellant relies on the sworn evidence of Mr. Zibarras, one of the partners in the respondent, including emails sent by Mr. Zibarras.

[8] As the Master observed, this case cries out for proportionality. It is not complicated and we suggest that case management be considered in order to ensure the just, most expeditious and least expensive determination of this proceeding on its merits.

[9] In the circumstances of this particular case, the costs award below should be set aside, and there shall be no costs throughout.