ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 14-1099
DATE: August 5, 2015
BETWEEN:
Gore Mutual Insurance Company
Plaintiff/Responding Party
– and –
Dr. George Carlin, Dr. George Carlin Dentistry Professional Corporation, Windent Inc.
Defendants/Moving Parties
Stephanie Drisdelle, for the Plaintiff/Respondent Party
H. Barry Starr, for the Defendants/Moving Parties
RULING ON MOTION
QUIGLEY, J
[1] This is a motion by the Defendants/Moving Parties (hereinafter referred to as the “defendants”) for relief outlined in their Motion Record, at Tab 1, numbers 1 to 7 inclusive.
[2] In particular, the defendants submit that the Plaintiff/Responding Party (hereinafter referred to as the “plaintiff”) has failed to comply with the provisions of Rule 25.06 of the Rules of Civil Procedure.
[3] In support of the motion, the defendants have filed an affidavit of George Carlin found in Tab 2 of the defendants’ Motion Record.
[4] The plaintiff asserts that the Statement of Claim in question satisfies all of the requirements of Rule 25.06 of the Rules of Civil Procedure.
[5] The Statement of Claim is included in Tab A of the Motion Record of the plaintiff.
[6] The plaintiff, in response to the defendants’ motion for particulars and after the motion had been served on it, responded with a Supplementary Response to Demand for Particulars, which is found in the plaintiff’s Motion Record, at Tab C.
[7] The defendants assert that, as a result of the Supplementary Response to Demand for Particulars provided by the plaintiff, only three questions remain to be settled on this motion:
(1) Is the plaintiff required to provide specific sections of the insurance contract between the plaintiff and defendants that it is relying on in this action?
(2) Is the plaintiff required to provide the specific sections of the Insurance Act in which it is relying in this action?
(3) Costs.
[8] The cost claim by the defendants is based on the fact that a Demand for Particulars was provided to the plaintiff by the defendants on March 25 and 26, 2015, which elicited a response on June 8th, 2015. The defendants allege that the response did not satisfy the requirements of the Rule.
[9] Counsel for the defendants in a letter dated June 9th, 2015, advised counsel for the plaintiff that the response was inadequate.
[10] After receiving no response from the plaintiff to the June 9th letter, the defendants assert that they were required to prepare and serve the within motion, which is returnable today. The defendants further allege that the plaintiff filed a further response after they were served with the Notice of Motion and, as a result, filed a Supplementary Response dated July 13, 2015.
[11] The defendants further assert that the July 13th, 2015 Supplement Response for a Demand for Particulars satisfied most of the questions but still left the issues, outlined in paragraph 7 above, to be dealt with by the court.
[12] The plaintiff submits that a Statement of Claim, along with its June 8th Response to a Demand for Particulars was not deficient and does not contravene Rule 25.06(01) of the Rules of Civil Procedure. The plaintiff further asserts that its Supplementary Response for a Demand for Particulars provided to the defendants on July 13th, 2015 was not required and essentially was provided as a courtesy to the defendants.
[13] The plaintiff therefore asserts that its Statement of Claim does not contravene Rule 25.06(01) of the Rules of Civil Procedure and opposes the relief being sought on this motion by the defendants.
[14] The plaintiff is relying on an affidavit of Debbie Orth, a partner in the law firm of Bertschi Orth, which is found in the plaintiff’s Motion Record at Tab 1.
Background
[15] This claim arises out of a fire loss incurred by the defendants on September 27, 2012, at 539 St. Lawrence Street, Winchester, Ontario.
[16] The plaintiff was the insured company covering the defendants’ losses that included building, contents and business interruption.
[17] The plaintiff, in its Statement of Claim, asserts that while the loss was being assessed between the plaintiff and defendants, the plaintiff made advanced payments to the defendants in order to provide the defendants with an opportunity to rebuild the property and continue operating the dental clinic.
[18] There appears to be no issue that the total payments from the plaintiff to the defendants for all losses amounted to $818,077.04.
[19] There appears to be no issue if the defendants exercise their rights under Section 128 of the Insurance Act by requesting that the loss be assessed through the appraisal process.
[20] The plaintiff further asserts that as a result of a decision by the umpire under Section 128 of the Insurance Act, there was an overpayment to the defendants of $133,391.40.
The Law
[21] Section 25.06(1) of the Rules of Civil Procedure states as follows:
25.06(1) Every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved. R.R.O. 1990, Reg. 194, r. 25.06(1).
[22] In the case of Pineau v. Ontario Lottery & Gaming Corp., 2011 CarswellOnt 11375, (Plaintiff’s Factum and Book of Authorities at Tab 2), Master Haberman stated at paragraphs 24 and 25 as follows:
- Pleadings are meant to contain a concise statement of material facts but not the evidence by which those facts will be proven at trial (Rule 25.06(1)). Again, the rationale is clear when one considers the goals of pleadings. They are intended to:
define the questions in issue between the parties;
give other parties fair notice of the case they have to meet and the remedies sought; and
assist the court in its investigation (see AGFA Inc. v. Partners Prepress [2006 CarswellOnt 5096 (Ont. S.C.J.)], 2006 28730)
- As such, the pleadings serve as a framework for the action, to be used for the purpose of disclosure and then, at trial. That framework is then filled in through the discovery process. Pleadings should be viewed more as the synopsis, rather than the book. They should therefore be as precise as possible, but not overly detailed. The detail comes through the disclosure process.
[23] In the case of Blatt Holdings Ltd. v. Traders General Insurance Co., 2001 62756 (ON SC), [2001] O.J. No. 949, (Plaintiff’s Factum and Book of Authorities at Tab 4), Cumming J stated at paragraph 31 as follows:
- Particulars for pleading will only be ordered if first, they are not within the knowledge of the party demanding them, and second, they are necessary to enable the other party to plead. Physicians Services Inc. v. Cass, 1971 359 (ON CA), [1971] 2 O.R. 626 (Ont. C.A.) per Gale C.J.O. at 627; Obonsawin (c.o.b. Native Leasing Services) v. Canada (February 6, 2001), Epstein J. (Ont. S.C.J.) at para. 33.
[24] In the case of Asfordby Storage & Haulage Ltd. v. Bauer (1985), 1 W.D.C.P. 505 (Ont. H.C.), (Defendants’ Book of Authorities at Tab 3), the Rules of Civil Procedure require plaintiffs to define the issues as precisely as possible. In paragraph 13, Salhany J. stated as follows:
- However, it must be remembered that the chief purpose of pleadings, particularly as they are now required under the new Rules of Civil Procedure, is to define the issues which have to be decided as precisely as possible for the benefit, not only of the parties, but also of the court. There is no doubt that there may be instances where, as in Fairbairn v. Sage, all of the facts upon which the cause of action are based are known only to the defendants in which case, the plaintiff would not be expected to facts not within his knowledge….
….If Rule 25.07 is to have any meaning, there is, in my view, at least an obligation upon the plaintiff to point to those transactions in dispute before it can call upon the defendants to refute them….
[25] In the case of International Nickel Co. v. The Travellers Indemnity Co., [1962] O.W.N. 109 (C.A.) (Defendants’ Book of Authorities at Tab 4), Schroeder J. stated at paragraph 4 as follows:
- The purpose of particulars was very well stated by Mr. Molmestead, K.C., as Senior Registrar in Mexican Northern Power Co. v. Pearson, 25 O.W.R. 422, as varied in 25 O.W.R. 593. I quote from his reasons as follows:
“It has been said before, and perhaps it is needless to say it again, that discovery is not a substitute for particulars….
....The function of particulars is to limit the generality of pleadings and thus to define the issues which have to be tried and as to which discovery must be given….
Such particulars may obviate the necessity for a tedious and expensive examination, or, better still, lead to a prompt settlement.”
[26] In the case of Region Plaza Inc. v. Hamilton-Wentworth, et al, (1990) 1990 6761 (ON SC), 12 O.R. (3d) 750, (Defendants’ Book of Authorities at Tab 5), Rosenberg J. stated at paragraphs 16, 17 and 20 as follows:
Are that facts given sufficient to allow the defendant to plead to the Statement of Claim knowing what the allegations are against them?
They are not. It is not reasonable to proceed with discoveries and trial having no further guidance as to what the issues will be. It is not sufficient that the plaintiff say “the defendants are in breach of their duties of good faith owed to Region Plaza” and for the defendants to plead “no we are not”. Surely, the defendants are entitled to know in what respects they are in breach of their duties of good faith and what facts give rise to a duty of good faith.
It does not help the plaintiff to say that the details are peculiarly within the knowledge of the defendants and that they will be determined on discovery. If the plaintiff does not at the outset have knowledge of facts that give rise to the conclusions of malice, breach of duty, conspiracy to intentionally injure, etc., then it is inappropriate to make these allegations in the statement of claim….
Analysis and Decision
[27] The defendants elected to exercise their rights under Section 128 of the Insurance Act. I find that the defendants, by utilizing Section 128, had a reasonable expectation of receiving more monies from the plaintiff than had already been advanced if the independent appraisal exceeded the monies that they had received. Surely, the plaintiff could expect reimbursement if the appraisal results showed an overpayment. In any event, that issue is one to be determined by a trial judge and not by a court on a motion for particulars.
[28] I find that the defendants’ assertion that the plaintiff is required to specify the section of the insurance contract or the Insurance Act that provides for reimbursement prior to filing a Statement of Defence is without merit.
[29] For the aforesaid reasons, the defendants’ motion is dismissed.
[30] If the parties cannot resolve the issue of costs, I will receive written submissions regarding costs, not to exceed two typewritten pages, on or before September 15, 2015.
The Honourable Mr. Justice Michael J. Quigley
Released: August 5, 2015
Dr. George Carlin, et al, 2015 ONSC 4922
COURT FILE NO.: 14-1099
DATE: August 5, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Gore Mutual Insurance Company
Plaintiff/Responding Party
– and –
Dr. George Carlin, Dr. George Carlin Dentistry Professional Corporation, Windent Inc.
Defendants/Moving Parties
RULING ON MOTION
Quigley, J.
Released: August 5, 2015