Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210326 DOCKET: C67517

Fairburn A.C.J.O., van Rensburg and Huscroft JJ.A.

BETWEEN

T.A.W. Plaintiff/Respondent (Appellant)

and

J.C.L. Defendant/Moving Party (Respondent)

Counsel: T.A.W., acting in person Natai Shelsen, for the respondent

Heard: in writing

On appeal from the order of Justice Kevin B. Phillips of the Superior Court of Justice, dated September 6, 2019.

Reasons for Decision

[1] This is an appeal from a decision arising from a motion brought under r. 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, largely striking out the appellant’s pleadings as disclosing no reasonable cause of action. In particular, the appellant’s claims regarding fraudulent misrepresentation, intentional infliction of mental distress, and negligent infliction of mental distress were struck from his statement of claim. The appellant’s claim respecting unjust enrichment was transferred to the Family Court.

[2] In his reasons, the motion judge made a publication ban, on his own motion, preventing the publication of any information that may tend to identify the identity of the parties. We are continuing this publication ban on appeal.

[3] The appellant argues that the motion judge erred in concluding that the claims of fraudulent misrepresentation and negligent infliction of mental distress disclosed no reasonable cause of action. He also maintains that the motion judge erred by refusing to allow the appellant to amend his statement of claim and by transferring his unjust enrichment claim to the Family Court. The appellant also contends that the motion judge erred in granting costs on a substantial indemnity basis.

[4] We do not agree with the appellant’s submissions. The motion judge’s reasons are error free. We agree with the respondent that the motion judge correctly held that the appellant failed to identify a false statement made by the respondent, one that could constitute a fraudulent misrepresentation. The motion judge also correctly held that no duty of care existed between the appellant and respondent that could ground a claim for negligent infliction of mental distress. Nor do we see any basis upon which the pleadings could have been amended in a way that would have cured their deficiencies. The motion judge was also correct to transfer the appellant’s unjust enrichment claim to the Family Court, where the issues could be dealt with expeditiously. Finally, the motion judge’s costs order is entitled to significant deference. It cannot be said that the motion judge erred in principle or was plainly wrong in awarding costs on a substantial indemnity basis: see Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27.

Disposition

[5] For the reasons given by the motion judge, the appeal is dismissed.

[6] As this was an appeal heard in writing, we will receive written submissions on costs. The respondent will submit her written submissions, of no more than three pages in length, no later than March 31, 2021. The appellant will submit his written submissions, of no more than three pages in length, no later than April 7, 2021.

“Fairburn A.C.J.O.”

“K. van Rensburg J.A.”

“Grant Huscroft J.A.”