DI MARCO v. MAGNO, 2012 ONSC 155

COURT FILE NO.: CV-11-429729
MOTION HEARD: January 5, 2012

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Giuseppe Di Marco v. Anna Maria Magno and Carman Magno

BEFORE: MASTER R.A. MUIR

COUNSEL:
Gregory Dimitriou for the Moving Parties/Defendants
Alfred Schorr for the Responding Party/Plaintiff

REASONS FOR DECISION

[ 1 ] This motion is brought by the defendants pursuant to Rule 25.10 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 (the “Rules”) for an order that the plaintiff provide particulars of certain allegations found in the statement of claim. Although a number of the issues on this motion were resolved prior to argument, the parties were unable to agree on whether particulars of certain allegations relating to payments to consultants referred to in paragraphs 4 and 6 of the statement of claim needed to be provided.

[ 2 ] This litigation arises out of what the plaintiff alleges was an oral agreement between the plaintiff and the defendants whereby the defendants agreed to retain the plaintiff to provide certain consulting building services. The plaintiff claims he is owed $54,963.00 for those services.

[ 3 ] The plaintiff initially acted on his own behalf in connection with this action. His statement of claim was issued on June 29, 2011. On September 6, 2011, the defendants served a demand for particulars seeking particulars of allegations found in paragraphs 1, 3, 4 and 6 of the statement of claim. Those demands sought the following information:

(a) the nature and terms of the agreement between the parties;

(b) specifics of the amounts being claimed by the plaintiff;

(c) details relating to payments made by the defendants to the plaintiffs; and,

(d) copies of invoices from consultants retained by the plaintiff and evidence of payments made to those consultants.

[ 4 ] The plaintiff appears to have responded by letters dated September 15, 2011 and September 22, 2011, although the defendants’ lawyer does not appear to have received the September 22, 2011 letter and its enclosures until November 4, 2011, after the plaintiff retained Mr. Schorr.

[ 5 ] The plaintiff’s September 15, 2011 letter simply stated that the agreement between the plaintiff and the defendants was an oral agreement and not in writing. The September 22, 2011 letter repeated that statement and provided some detail with respect to what the plaintiff alleges were the terms of the oral agreement. The September 22, 2011 letter also enclosed copies of invoices and billing information but stated that certain other accounting information was not available and would be provided in due course.

[ 6 ] The plaintiff admits that some of the information he provided with his September 22, 2011 letter did not make sense. This was due to the fact that a power failure at his offices in February, 2011 resulted in a serious loss of data and certain documents had to be reconstructed. The plaintiff argues that he has now reconstructed his invoicing to the defendants and has now provided a detailed invoice setting out his claims, which is marked as Exhibit B to his affidavit sworn January 3, 2012.

[ 7 ] The defendants agree that the plaintiff has now provided sufficient particulars, except for their demand in relation to the invoicing by, and payments made to, consultants hired by the plaintiff. The defendants point out that the additional fees charged by the plaintiff for consultants, as set out in Exhibit B to the plaintiff’s affidavit sworn January 3, 2012, do not, in most cases, match the invoices included with the plaintiff’s letter of September 22, 2011. The defendants argue that the only way to clarify those discrepancies is to require the plaintiff to produce copies of all invoices rendered by such consultants along with evidence of payments made by the plaintiff in respect of such invoices.

[ 8 ] The plaintiff argues that this action is only at the pleadings stage. The defendants may be entitled to the requested production at the discovery stage but the court should not order such production at this stage. The plaintiff submits that his claim is fully particularized in Exhibit B to his affidavit sworn January 3, 2012 and that no further particulars are necessary in order to allow the defendants to plead to the statement of claim.

[ 9 ] In my decision in Areva NP GmbH v. Atomic Energy of Canada Ltd. , [2009] O.J. No. 4372 (S.C.J. – Master) , I summarized the applicable law regarding particulars as follows at paragraphs 39 to 41:

39 Rule 25.10 has been interpreted to require particulars of a pleading only when the particulars sought are not within the knowledge of the party seeking them and when they are necessary to enable that party to plead. In Obonsawin v. Canada, [2001] G.S.T.C. 26 (ON S.C.), Epstein J. (as she then was) had occasion to comment on when particulars should be ordered. At p. 26-9 of that Report she stated as follows:

• In terms of the general principles, the test for when particulars should be ordered is that set out in the decision in Physicians' Services . In that case the court applied the principles laid down in cases such as Fairbairn v. Sage , 1925 403 (ON CA) , 56 O.L.R. 462 , [1925] 2 D.L.R. 536 in which it was held that particulars for pleading will only be ordered when (1) they are not within the knowledge of the party demanding them, and (2) they are necessary to enable the other party to plead. While other cases such as Champagne v. Kapuskasing Plumbing & Heating Ltd. ( 1996), 48 C.P.C. (3d) 111 (Ont. Div. Ct.) , help explain why particulars are ordered such as to define the issues, to prevent surprise at trial, to enable adequate preparation for trial, and to facilitate the hearing, I am of the view that the Physicians' Services case remains the authority as to when the court should order particulars.

40 See also: Caputo v. Imperial Tobacco Ltd. (1996), 48 C.P.C. (3d) 339 (Ont. Ct. G.D.) at 343 ; Physicians Services' Inc. v. Cass , 1971 359 (ON CA) , [1971] 2 O.R. 626 (C.A.) at 627 ; and Mirshahi v. Suleman, above, at para. 17

41 The onus to satisfy the Court that particulars are necessary, and not within the knowledge of the party requesting them, rests with the party requesting the particulars. See Obonsawin , above, at p. 26-10. AECL, therefore, has the onus of demonstrating that it does not know the information requested in the list of particulars at paragraph 3 of the Notice of Motion. As stated in Master Sandler's decision in Copland , above, at 588:

• In between the concept of "material facts" and the concept of "evidence", is the concept of "particulars". These are additional bits of information, or data, or detail, that flesh out the "material facts", but they are not so detailed as to amount to "evidence". These additional bits of information, known as "particulars", can be obtained by a party under new rule 25.10 , if the party swears an affidavit showing that the particulars are necessary to enable him to plead to the attacked pleading, and that the "particulars" are not within the knowledge of the party asking for them. An affidavit is not necessary only where the pleading is so bald that the need for particulars is patently obvious from the pleading itself. New rule 25.10 is substantially the same as former Rule 140, and in my view, the law on this subject has not changed by reason of the change from the Rules of Practice to the Rules of Civil Procedure .

[ 10 ] Having applied the principles set out above, I have come to the conclusion that no further particulars are necessary. Exhibit B to the plaintiff’s affidavit sworn January 3, 2012 provides sufficient particulars of the portion of the plaintiff’s claim relating to additional fees paid to consultants. The defendants now know who those fees were allegedly paid to and the nature of the services provided. They also know the amount the plaintiff is claiming from the defendants for those consulting fees. In my view, the documents requested by the defendants in relation to those charges amount to evidence and are not necessary for the defendants to plead to the statement of claim. Of course, the plaintiff will have to provide evidentiary support for those claims if he is to succeed at trial, but it is not necessary for him to do so at this stage of this proceeding.

[ 11 ] This portion of the defendants’ motion is therefore dismissed. The defendants shall serve their statement of defence by no later than February 10, 2012.

[ 12 ] During the course of the argument of this motion, I was advised that the defendants were consenting to the plaintiff’s request that he be granted leave to amend his statement of claim. An order will therefore issue granting leave to the plaintiff to amend his statement of claim in the form of the draft Fresh As Amended Statement of Claim filed with the court today.

[ 13 ] If the parties are unable to agree on the issue of costs, they may make brief written submissions by no later than January 13, 2012.

Master R.A. Muir

DATE: January 5, 2012