SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-12-446693
DATE: 20130319
RE: LIFE RICH CORPORATION, Plaintiff
AND:
SIGNATURE REALTY INC., operating as ROYAL LEPAGE SIGNATURE REALTY, SIMON GIANNINI, STEPHEN BULAKOWSKI and 10806836 ONTARIO INC., carrying on business as REC CANADA REAL ESTATE CENTRE, Defendants
AND BETWEEN:
10806836 ONTARIO INC., carrying on business as REC CANADA REAL ESTATE CENTRE, Plaintiff by Counterclaim
AND:
LIFE RICH CORPORATION, RICHARD DOLAN, DAVID FRANKLIN and DANIELLA IAMUNDO, Defendants to the Counterclaim
BEFORE: Carole J. Brown J.
COUNSEL:
Michael Mazzuca, for the Plaintiff
James M. Wortzman, for the Defendants
HEARD: February 6, 2013
ENDORSEMENT
[1] The moving party plaintiff, Life Rich Corporation ("the plaintiff"), brings this motion to strike portions of the defendants’ statement of defence and counterclaim or, in the alternative, to require particulars.
[2] The plaintiff seeks an Order striking out the defence and counterclaim or those paragraphs of each for which the plaintiffs demanded particulars or, in the alternative, requiring the defendant to provide answers to particulars regarding paragraphs 5, 6, 7, 9, 15, 31-33, 35, 38, 42, 51 and 61. Further, the plaintiff seeks an Order dismissing the counterclaim against the personal defendants or, alternatively, striking out paragraphs of the defence and counterclaim as against them personally, without leave to amend or, strictly in the further alternative, requiring the defendants to provide answers to particulars with respect to paragraphs 81 to 86. The plaintiff also seeks an Order extending the time for delivery of the Reply and Defence to Counterclaim, and setting a timetable and schedule in order to expeditiously proceed with this action.
[3] This action arises from a joint venture entered into between the parties regarding educational/consulting seminars and marketing and national advertising of real estate. The plaintiff alleges fraudulent or negligent misrepresentation as regards the joint venture.
[4] The statement of claim was issued on February 17, 2012. The defendants requested particulars, which were answered, following which the defendants served their statement of defence and counterclaim. The plaintiff thereafter served a demand for particulars listing 44 questions.
[5] The defendants refused to respond on the grounds that the particulars or material facts sought were of an evidentiary nature, were more properly the subject of examinations for discovery and were, in essence, written interrogatories. The defendants’ position was that these details were not necessary for the plaintiff to know and reply to the case before it.
[6] Hence this motion.
[7] Following commencement of the motion, the plaintiff withdrew 22 of the 44 particulars sought. Following cross-examination on the affidavit of David Franklin, the principal of the plaintiff, the plaintiff withdrew another six questions
[8] Those questions left relate to paragraphs 5-7, 9, 31, 38 and 61 of the statement of defence and paragraphs 81-86 of the counterclaim.
The Issues
[9] The issues to be determined are:
Whether the statement of defence and counterclaim should be struck pursuant to Rule 21.01 (3) or Rule 25.11;
In the alternative, whether the particulars sought and refused should be ordered.
Striking the Claim
[10] The test for determining whether a pleading should be struck is whether, assuming the facts as stated in the statement of claim can be proven, is it plain and obvious that no reasonable cause of action is disclosed. The pleadings should not be struck if there is a chance that they may succeed. Moreover, pleadings should only be struck under Rule 25.11 where the facts pleaded are irrelevant to the issues, argumentative or inserted for prejudicial colour, or where they constitute bare allegations or bare conclusions of law without the constituent factual elements to establish the claim.
[11] Every pleading must contain a concise statement of material facts relied upon, but not the evidence by which those facts are to be proven. Particulars for the purpose of pleading will be ordered only if they are not within the knowledge of the party demanding them and are necessary to enable the party to plead.
Particulars
[12] With respect to particulars, Rule 25.10 provides that where a party demands particulars of an allegation in the pleading of the opposite party, and the opposite party fails to supply them within seven days, the Court may order particulars to be delivered within this specified time
[13] Particulars are additional information, data or detail that flesh out the material facts, but are not so detailed as to amount to evidence. Particulars are ordered to make a pleading sufficiently clear to enable the opposing party to frame his or her answer and also to prevent surprise at trial. The party is entitled to know the cause alleged against him or her and that party may request particulars to ensure that discovery is confined to the material facts pleaded.
The Plaintiff’s Position
[14] With respect to the statement of defence, the plaintiff alleges that the defendants have failed to provide material disclosure of the timing and manner of the allegations sufficient to permit the plaintiff to plead in response.
[15] It is the plaintiffs position that where a minimum level of material fact disclosure is not reached, the remedy is not a motion for particulars, but rather a motion to strike the pleading. The plaintiff further submits that where allegations are so general or bald that particulars are manifestly necessary, it is not necessary to depose an affidavit that the particulars are not within the knowledge of the party or that they are necessary in order to plead.
[16] The plaintiff submits that the allegations as set forth in the defence and counterclaim as against the personal defendants are scandalous, frivolous, vexatious or an abuse of process The plaintiff further submits that these allegations are factually hopeless, speculative and unfounded; that they are inserted as against the three named personal individuals, the principals of the plaintiff, as a tactical maneuver to embarrass them; that they are serious accusations which are only bare allegations of an inflammatory nature; and that the allegations contained in the defence and counterclaim do not support such allegations.
[17] With respect to the counterclaim, the plaintiff submits that paragraphs 81-86 contain argumentative legal conclusions with no material facts. The plaintiff argues that the allegations as against the named individuals are without merit. Accordingly, they argue that they should be struck as frivolous, vexatious and an abuse of process.
The Defendants’ Position
[18] The defendants argue that the plaintiff's submissions are not supported by the jurisprudence, that the pleadings are not the proper stage to engage in an exercise of weighing of evidence in determination of alleged facts, and relies on Quizno's Canada Restaurant Corp. v Kileel Developments Limited 2008 ONCA 664, 2008ONCA 664 at paragraph 16; and Air Canada v WestJet Airlines Limited (2004), 2004 66339 (ON SC), 72 OR (3d) 669 at paragraph 6 (CA).
[19] The defendants argues that the statement of defence and counterclaim contain the constituent elements of the claim and sufficient facts to permit the plaintiff to properly plead. The defendants submit that, pursuant to the Rules, the pleadings are not to contain evidence. With respect to the demand for particulars, the defendants submit that the particulars requested are not required for pleading over and, in any event, are known to the plaintiff. The defendants further submit that the facts sought by the plaintiff in its demand for particulars amount to evidence as to timing and manner in which information was exchanged and by whom and where, which are more properly part of the examination for discovery process. As such, they argue that the particulars sought in the demand for particulars are improper.
[20] Further, with respect to the statement of defence and counterclaim, the defendant argues that the allegations are not scandalous or frivolous. The defendant submits that a pleading cannot be scandalous if it is relevant unless it can be established that such pleading is of marginal probative value and that the probative value is outweighed by the prejudicial effect and relies on Quizno's, supra. Further, the defendant argues that the defence and counterclaim are not vexatious nor an abuse of process. The defendant argues that the claims are not of a harassing or oppressive nature but that they assert legitimate claims and rights.
[21] With respect to Rule 25.11 and the counterclaim, the defendant argues that the plaintiff does not meet the high threshold required in order to have the counterclaim dismissed on the basis that it is frivolous, vexatious and/or an abuse of the Court process. The defendant submits that with respect to the named individuals in the counterclaim, the pleadings contain specific allegations as against the named individuals based on breach of contract and inducing breach of contract. They argue that within the body of the pleadings, all constituent elements required to support these claims are included.
Analysis
[22] While it may have been preferable for the plaintiff, in the circumstances of this case, where the plaintiff originally sought particulars of the defence and counterclaim in order to respond, to have pursued a Master’s motion for particulars in order to advance the proceedings, as urged by the defendants, the plaintiff chose to bring the motion before this Court for orders striking the defence and counterclaim.
[23] I have reviewed the pleadings and the submissions of both counsel regarding each contested paragraph. Based on all of the materials before me, the law, and the submissions of counsel, I do not find it appropriate to strike the defence or counterclaim pursuant to either Rule 21.01(3) or 25.11. There are no grounds on which to do so.
[24] It is clear from the transcripts that the plaintiff's principal, David Franklin, knew the information sought as particulars or had a position thereon sufficient to plead with respect to the contested paragraphs, despite having stated in his affidavit in support of this motion that he had no knowledge. Either the plaintiff admits the allegations in the defence regarding it or does not. The additional details sought in the way of "who, what, where, when, why" are properly the subject of examination for discovery.
[25] Having read the pleadings, the questions for which particulars are sought, the motion materials and having heard counsels’ submissions, I find the particulars sought are properly the subject of examination for discovery.
[26] Moreover, as held above, there are no grounds on which to strike the counterclaim. While the plaintiff submits that the allegations are "bald statements unsupported by material facts", I do not agree. The counterclaim contains the statement that the counterclaim relies on the facts as pleaded in the statement of defence. Reading the statement of defence and counterclaim together, all facts necessary to support the claims as against the plaintiff and the named individuals are present. I further note that the allegations in the counterclaim involving the three named individuals, are allegations against the principals of the plaintiff who were also referenced throughout the main pleadings.
[27] Accordingly, the plaintiff's motion is dismissed in its entirety.
[28] I grant the plaintiffs time to deliver the Reply to the defence and counterclaim, which is to be delivered within 20 days of the release of this endorsement.
[29] The parties have advised that they will agree to a schedule in order to ensure the expeditious progress of this action.
Costs
[30] I would urge the parties to agree upon costs, failing which I would invite the parties to provide any costs submissions in writing, to be limited to three pages, including the costs outline. The submissions may be forwarded to my attention, through Judges’ Administration at 361 University Avenue, within thirty days of the release of this Endorsement.
Carole J. Brown J.
Date: March 19, 2013