ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JOEL COHEN
Plaintiff/Defendant by Counterclaim
– and –
ANTHONY GRIMANI
and PERFORMANCE MEDIA INDUSTRIES LTD.
Defendants/Plaintiffs by Counterclaim
James Morton, for the Plaintiff-Responding Party
H. Keith Juriansz, for the Defendants-Moving Party
HEARD: April 8, 2015
DOW, j
reasons
1The defendant, Grimani (who is also plaintiff by counterclaim) seeks dismissal of the plaintiff’s claim against him personally for negligent misrepresentation as set out in paragraph 6 and 7 of the Statement of Claim. Mr. Grimani admits he is a principal of the corporate defendant. The plaintiff resists the motion on the basis there is a potential issue for trial and that dismissal of this claim will not shorten the trial.
Background
2The salient facts can be summarized as follows:
(a) in October, 2009, the plaintiff contacted and eventually contracted with the defendants to provide a design for a high end home theatre in the basement of the plaintiff’s house;
(b) the defendants contend all communication between the plaintiff and Grimani were on the basis Grimani was a principal in the corporate defendant, Performance Media Industries Ltd., as set out in the agreement (Exhibits A and L to the affidavit of Anthony Grimani sworn September 16, 2014). The plaintiff contends his contact was directly with Mr. Grimani given his reputation or at the very least, representations were coming from “‘them’ I wasn’t splitting between the corporation and the individual;”
(c) Performance Media Industries Ltd. had other employees with whom the plaintiff had communication and contact, namely Terry Hill, the General Manager and Dan Whitfield, the Systems and Design and Sales Manager;
(d) the installation of the home theatre room and system did not result in the outcome the plaintiff anticipated, particularly with regard to a shadow across the screen during projection and the failure to have a third row of seats and bar area within the room (paragraph 9 of the Statement of Claim);
(e) the plaintiff’s dissatisfaction with the result appears to have led to online comments about the defendants resulting in a December, 2011 amendment to the counterclaim by both Mr. Grimani and Performance Media Industries Ltd. claiming damages for libel and defamation including punitive, aggravated and/or exemplary damages and a permanent injunction regarding publication of further comments;
(f) the examinations of the parties proceeded, notably of the plaintiff, December 4, 2013 in which the plaintiff testified about his belief in retaining Mr. Grimani and Performance Media Industries Ltd. The defendants point to other evidence in which the plaintiff realized he was contracting with the corporate defendant and the representations by Mr. Grimani were on behalf of the corporate defendant.
Analysis – Genuine Issue for Trial
3The defendant, Grimani, relies on Hryniak v. Mauldin, 2014 SCC 7 decision in which Justice Karakatsanis directs the Court must grant summary judgment based upon the evidence before the Court (paragraph 66). In this matter, while the allegations of negligent misrepresentation have been made, the only evidence of any representation by Mr. Grimani is the impression the plaintiff had of the situation. He was dealing with both Mr. Grimani and Performance Media Industries Inc. and that evidence is subject to contradiction. The other requisite elements of the tort, being the representation was knowingly false or that Mr. Grimani failed to take the requisite steps to fulfill any personal commitment to design what the parties had agreed upon has not been put forward. As a result, Mr. Grimani is entitled to succeed.
4I am concerned that while a “fair and just determination on the merits” (paragraph 49 of Hryniak) on this issue is able to be made, it does not appear that this finding will achieve any significant efficiencies such as shortening of the trial or simplifying the issues to be determined that is at the heart of the Hryniak v. Mauldin decision. Mr. Grimani remains a party to the action. He continues to be represented by the same counsel as the corporate defendant. He remains involved in the defence of the main action against the corporate defendant. He continues to advance a counterclaim.
Issue – Trial Management Criteria
5Having determined summary judgment on the issue of negligent misrepresentation against Mr. Grimani should be granted in his favour, it does not appear that the Court needs to consider whether I should remain seized of the matter or impose trial management orders as indicated in paragraph 78 of the Hryniak decision. That direction speaks to where a motion for summary judgment is dismissed. However, if I am incorrect, I would note there does not appear to be any economies to applying trial management criteria. I have made no findings of fact on the evidence aside from the absence of evidence upon which a claim by the plaintiff for negligent misrepresentation against Mr. Grimani can succeed. This matter appears to be best served by having it proceed in the normal course and I decline to remain seized of it.
Costs
6Counsel provided me with their costs outline. Counsel for the plaintiff has submitted a claim in the amount of $3,495 which counsel for the defendants opposed given the failure to deliver his factum until the morning of the motion. Counsel for the defendants was seeking partial indemnity costs in the amount of $12,274.48, inclusive of fees, HST and disbursements. Counsel for the plaintiff acknowledged greater work would have been required to bring the motion than to defend same but suggested the time docketed was modestly excessive and suggested $10,000, inclusive of fees, HST and disbursements. I agree and fix costs in the amount of $10,000 inclusive of fees, HIST and disbursements payable by the plaintiff to the defendant, Grimani, but that same is in any event of the cause given Mr. Grimani’s ongoing involvement in the action, particularly the counterclaim and the lack of achieving any significant efficiencies or simplifying of issues.
Mr. Justice G. Dow
Released: April 24, 2015
CITATION: Cohen v. Grimani et al., 2015 ONSC 2433
COURT FILE NO.: CV-10-403565
DATE: 20150424
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JOEL COHEN
Plaintiff/Defendant by Counterclaim
– and –
ANTHONY GRIMANI
and PERFORMANCE MEDIA INDUSTRIES LTD.
Defendants/Plaintiffs by Counterclaim
REASONS FOR JUDGMENT
Mr. Justice G. Dow
Released: April 24, 2015