Foster v. Wood, 2015 ONSC 1099

Foster v. Wood, 2015 ONSC 1099

COURT FILE NO.: CV-13-4617-00

DATE: 2015-02-18

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Foster v. Wood

BEFORE: Bloom J.

COUNSEL: Alan Price, for the Plaintiff

Alexander Wood, Self-representative

HEARD: February 04, 2015

ENDORSEMENT

1The Plaintiff, the Moving party, brings a motion for summary judgment for monies paid to the Canadian Revenue Agency in respect of source deductions and HST owed regarding a sole proprietorship operated under the name, Radman Total Auto Care. The Plaintiff also moves for dismissal of the counterclaim in this proceeding.

2The Defendant did not appear; although the matter was adjourned to February 4, 2015 at 10:00 a.m. for hearing. A friend of his advised the Court that illness prevented the Defendant’s attendance.

3The Plaintiff and Defendant had a common law relationship. The Defendant made an assignment in bankruptcy in March of 2011. For reasons related to the bankruptcy, the parties agreed that an auto repair business could be set up as a sole proprietorship in the name of the Plaintiff. The Defendant worked at least some time in the business; he had worked previously in the auto repair business. The Plaintiff worked as a legal assistant.

4The Plaintiff alleges that the parties also orally agreed that the Defendant would pay the source deductions and HST owed in respect of the business to the Canada Revenue Agency. To date the Plaintiff has paid $9,999.03 to the Canada Revenue Agency on account of these taxes; the Agency is looking to her for these taxes and she has made arrangements with the Agency to make monthly instalments to discharge an outstanding balance which may reach over $50,000, including the $9,999.03 already paid.

5The Plaintiff seeks on this motion recovery of all monies so paid. She relies on Rule 20.04(1)(2)(a) and (2.1).

6The existence of the alleged oral arguments is a subject of disputed evidence relied on by the parties. There is no evidence of the distribution of any profits from the business between the parties.

7I am unable on this motion to make determinations of credibility necessary to make findings of fact regarding the existence of the alleged oral agreement. In addition, even if that agreement were found by me to exist, the evidentiary record does not allow a determination of whether a legal basis of liability exists based on that agreement.

8With respect to the motion for the dismissal of the counterclaim, the Plaintiff contends that the division of assets sought by the Defendant should have been brought under the Family Law Rules.

9Rule 1(2)(a)(v) of the Family Law Rules provides that those rules apply to all family law cases in this court Part I of the Family Law Act which relates to family property. However, that part of the act applies to spouses. “Spouse” as defined in s. 1 of the Family Law Act does not include those in a common law relationship. Accordingly, the counterclaim was quite rightly brought under the Rules of Civil Procedure.

10I order that costs be in the cause, since the Plaintiff’s conduct in bringing on her two motions was reasonable.

11Finally, I will not remain seized of this proceeding. There will not be a material economy or savings of costs, were I to remain seized. The record is not complex and the proceeding simply requires a trial based on viva voce evidence.

BLOOM J.

RELEASED: February 4, 2015

TRANSCRIBED: February 18, 2015

COURT FILE NO.: CV-13-4617-00

DATE: 2015-02-18

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Foster v. Wood