SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-12-461299

DATE: 20130816

RE: Gaspare Di Salvo, Plaintiff

AND:

Maria Bongelli and Giulio Bongelli and Romina Di Salvo, Defendants

AND BETWEEN:

Maria Bongelli and Giulio Bongelli, Plaintiffs by Counterclaim

AND:

Gaspare Di Salvo, Dimple Verma and Verma Injury Lawyers Professional Corporation, Defendants by Counterclaim

BEFORE: Lederman J.

COUNSEL:
Ranjan Das, for the Plaintiff and Defendants by Counterclaim

Emilio Bisceglia, for the Defendants, Plaintiffs by Counterclaim, Maria Bongelli and Giulio Bongelli

HEARD: August 8, 2013

ENDORSEMENT

[1] These motions are brought by the Plaintiff and Defendants by Counterclaim to strike out the Amended Statement of Defence and Counterclaim or multiple paragraphs thereof of the Defendants Maria Bongelli and Giulio Bongelli on various grounds including the argument that the Counterclaim discloses no reasonable cause of action.

[2] The Plaintiff submits that the Statement of Defence includes irrelevant and frivolous allegations about the Plaintiff and his lawyer and are inserted for atmosphere only. Such paragraphs can be broadly characterized as follows:

(a) paragraphs setting out the prior history of the relationship between the parties;

(b) paragraphs concerning the lawyer, Dimple Verma (“Verma”), representing the Plaintiff in these proceedings;

(c) paragraphs concerning “Incident No. 2” involving the falling of the light fixture on the Plaintiff. The Plaintiff only claims for this against Romina Di Salvo. There is no direct claim against the Bongellis with respect thereto and the allegations that they make in their Statement of Defence are based solely on their belief; and

(d) repetitive paragraphs setting out the physical attributes of the parties.

[3] Counsel for the Bongellis now concedes that Items (c) and (d) above should be removed and an order will go striking out the paragraphs in the Statement of Defence dealing with those matters.

[4] As to the allegations concerning the history of the relationship between the parties, that relationship was put into issue by the Plaintiff in his Statement of Claim. For example, paragraph 7 of the Statement of Claim states “they [the Plaintiff and the Defendant Romina Di Salvo] were amicable and co-operative with each other but the Plaintiff and the Defendants, Maria Bongelli and Giulio Bongelli did not get along.” Paragraph 10 (d) states “they premeditated the attack and set out to intentionally or recklessly lure, trap and hurt the Plaintiff.”

[5] Although the Defendants’ recitation of specific incidents in the past relationship might be somewhat excessive, they are in response to the Plaintiff’s allegations concerning the parties’ relationship and should not be struck out.

[6] Similarly, the allegations in the Statement of Defence concerning Verma respond to the Plaintiff’s allegations asserting a loss of income and loss of competitive advantage by stating that in fact the Plaintiff is gainfully employed as a lawyer and working for Verma who is his common-law spouse. These paragraphs should not be struck out.

[7] As for the Counterclaim, it purports to assert various causes of action against Verma and Verma Injury Lawyers Professional Corporation (“VIL”) in their capacity and status as lawyers for the Plaintiff. To the extent that it does so, the Counterclaim against them cannot stand as the lawyers for the Plaintiff do not owe a duty of care to the Defendants. There may be a viable claim against Verma in her personal capacity but not in her role qua lawyer.

[8] Further, a significant element of the various causes of action asserted in the Counterclaim turn on or are predicated on the Plaintiff laying criminal charges without any foundation. Given the fact that such charges were brought only as against Maria Bongelli, there is no basis for Giulio Bongelli to be asserting such claims as against the Plaintiff and Verma.

[9] The Counterclaim as presently drafted therefore cannot stand and must be struck out but with leave to amend to remove the offensive portions as described above.

[10] Other problems may exist with the Counterclaim relating to lack of particularity of the various elements of the torts asserted and they may more appropriately be made the subject of a motion before the Master if the further amended Counterclaim fails to supply sufficient particulars of the constitutive elements of the various torts alleged.

[11] In summary, the portions of the Statement of Defence relating to Incident No. 2 and the repetitive references to the physical attributes of the parties are struck out. The Counterclaim is struck out with leave to amend within 10 days.

[12] It would appear that as success was divided there should be no costs of these motions. However, if counsel feel otherwise, they are at liberty to make written submissions within 30 days.

Lederman J.

Date: August 16, 2013