Roger B. Campbell

The respondent (Stanley Capobianco) brought a motion to strike specific paragraphs from the applicant's (Paul Offierski) Statement of Defence and Counterclaim, arguing they were irrelevant, argumentative, scandalous, or disproportionate, particularly concerning costs and casting the respondent in a bad light.

The applicant contended the impugned paragraphs were relevant and responsive to the respondent's claims for punitive damages, legal expenses, and property appraisal fees, and to demonstrate the respondent's conduct.

The court dismissed the motion, finding the impugned paragraphs were responsive to the respondent's claims, not solely related to costs, and did not create disproportional complexity, especially given the nature of the respondent's own pleadings.

The moving defendants sought partial summary judgment dismissing the landlord’s claim for prospective rent damages following an alleged repudiation of a commercial lease.

The motion raised legal questions concerning the fourth remedy identified in Highway Properties Ltd. v. Kelly, Douglas and Co., including whether notice of a claim for prospective damages must be provided and whether the issuance of a statement of claim can satisfy that notice requirement.

The court found that the law on these issues was unclear and therefore constituted a genuine issue of law.

Pursuant to Rule 20.04(4) of the Rules of Civil Procedure, a master must adjourn such motions to a judge where the issue may be determined on summary judgment.

The motion was therefore adjourned to a judge, with limited costs awarded to the responding party for the adjournment issue.