SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: CV-14-1491-00

DATE: 2015-08-14

RE: CHAMBERLAIN ARCHITECT SERVICES LIMITED

Plaintiff

AND:

LINAS BRONIUS SAPLYS in his personal capacity and operating as ARCHITECTURAL AND PLANNING INITIATIVES and AWS ARCHITECTS, SAPLYS ARCHITECTS INC., 2345951 ONTARIO INC., JESSE WILSON in his personal capacity and operating as SAMUEL RAY DESIGNS, ETLEVA GURAKUQI MATAJ, ARTAN MATAJ in his personal capacity and operating as ELEGANT LINES, DAVID BARNARD in his personal capacity and operating as DB DRAFTING AND CONSULTING

Defendants

BEFORE: Baltman J.

COUNSEL:
Jeffrey Percival, for the Plaintiff

Gerard Barosan, for the moving Defendants

HEARD: August 12, 2015

ENDORSEMENT

THE MOTION

1The moving Defendants seek an order striking out various portions of the Statement of Claim based on alleged violations of Rules 21 and 25. Relief is sought by all the Defendants save Wilson and Samuel Ray Designs, who take no position in this matter.

2The Plaintiff is an architectural firm. At the relevant time it employed the Defendants Linas Bronius Saplys (“Linas”), Etleva Gurakuqi Mataj (“Eva”) and David Barnard (“Barnard”) in various capacities relating to architectural work. Linas is the controlling mind of the Defendants Saplys Architects Inc. (“SAI”) and 2345951 Ontario Inc. (“951”); the Defendant Artan Mataj (“Artan”) is Eva’s husband and the sole proprietor of Elegant Lines (“EL”).

3At some point Linas, Eva and Barnard left the Chamberlain firm. Chamberlain later came to believe they had misappropriated drawings belonging to Chamberlain and used them to secure architectural contracts for themselves.

4In March 2013, Chamberlain lodged a complaint with the Ontario Association of Architects (“OAA”). In December 2013, after receiving written submissions from all parties, the Complaints Committee of the OAA found that the Defendants had used Chamberlain’s drawings for their own projects without giving Chamberlain the required notice. It concluded that such conduct “could be considered” dishonourable or unprofessional and, therefore, warranted a referral to the Discipline Committee of the OAA.

5To date a decision has not been rendered by the Discipline Committee.

ISSUES AND ANALYSIS

Rule 21 Challenge

6The Plaintiff claims against all the moving parties in conversion, breach of confidence and breach of contract. However, on this motion the Plaintiff conceded that it had no contractual relationship with SAI, 951, Artan, or EL. Consequently, any claim for breach of contract against that subset of Defendants must be struck.

7The moving Defendants also argue that there is no tenable claim pleaded in “breach of confidence” against that same subset (SAI, 951, Artan and EL).

8There are three criteria in determining whether a breach of confidence has been made out:

(i) whether the information conveyed has the necessary quality of confidence;

(ii) whether the information was communicated in confidence; and

(iii) whether the information was misused by the party to whom it was communicated: Sabre Inc. v. International Air Transport Assn., 2011 ONSC 206, para. 52.

9In the case of a third party (such as Artan) who has come into possession of information that is in fact confidential, the claim must plead that it was accepted on that basis, either expressly or by implication, or that the recipient later acquired notice of its nature: Sabre, para. 55.

10The Statement of Claim clearly alleges that Linas misused confidential information that he received from Chamberlain. It is undisputed that Linas is the controlling mind of SAI and 951. Whether he received and misused confidential information in his personal capacity or through the corporations he controls is irrelevant; otherwise an individual could shield himself from liability by using his company for any potentially contentious dealings. Therefore, the claims for breach of confidence against SAI and 951 stand.

11As for Artan and his entity EL, the Statement of Claim asserts that Artan’s initials appear on the impugned permit drawings that were allegedly used by the Defendants to secure an architectural contract. However, there is no allegation that he was aware at any point of the confidential nature of that information, and to that extent this claim against him (and EL) is deficient. It shall either be amended or struck.

12The Defendants further argue there is no tenable claim pleaded in “conversion” against the same subset of Defendants. The tort of conversion involves a wrongful interference with the goods of another, such as taking, using or destroying these goods in a manner inconsistent with the owner’s right of possession: Wymor Construction Inc. v. Gray 2012 ONSC 5022, paras. 11-12. Generalized statements of wrongdoing are insufficient; the Statement of Claim must set out precisely the who, where, when, what and how of the alleged misconduct.: Enerworks Inc. v. Glenbarra Energy Solutions Inc., 2012 ONSC 414, paras. 40 and 82; Karas v. Ontario 2013 ONSC 6053, para. 21.

13As currently drafted, the Statement of Claim explains how the key Defendants came into possession of confidential documents and how they subsequently misused them. That covers Linas and, by definition, the companies he controls. However, there is no indication of how Artan - who was not previously employed at Chamberlain - is implicated, other than the fact that he is married to Eva and his initials appeared on the impugned drawings. Therefore, the claim against Artan and EL for conversion shall either be amended or struck.

Rule 25 Challenge

14Several paragraphs of the Statement of Claim (28-34 inclusive) refer to the decision and findings of the Complaints Committee. The Defendants maintain that those pleadings are immaterial and should be struck pursuant to Rule 25.11, on the basis that they will prejudice or delay the fair trial of the action.

15I agree the impugned paragraphs are prejudicial and should be struck. They refer to documents and information which are inadmissible at trial, either pursuant to s. 43(2) of the Architects Act, R.S.O. 1990, c. A.26,¹ or on the basis that the findings of the Complaints Committee (“CC”) say little if anything about whether there was misconduct. On the latter point, the CC is not a court of record or even a disciplinary panel; it is not required to hold a hearing or afford any affected party an opportunity to make oral submissions. It conducts a preliminary inquiry into the merits of a complaint but has no authority to render disciplinary measures. Therefore its findings are of little, if any, probative value.

CONCLUSION

16In sum, I conclude as follows:

a) The claims for breach of contract against SAI, 951, Artan, and EL are struck.

b) The claims against Artan and EL for breach of confidence and conversion shall either be struck or amended within 60 days, as discussed in paras. 8 -12 above.

c) Paragraphs 28 to 34 inclusive of the Statement of Claim are struck.

17As success was divided each side shall bear its own costs.

Baltman J.

Date: August 14, 2015

COURT FILE NO.: CV-14-1491-00

DATE: 2015-08-14

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: CHAMBERLAIN ARCHITECT SERVICES LIMITED v. LINAS BRONIUS SAPLYS in his personal capacity and operating as ARCHITECTURAL AND PLANNING INITIATIVES and AWS ARCHITECTS, SAPLYS ARCHITECTS INC., 2345951 ONTARIO INC., JESSE WILSON in his personal capacity and operating as SAMUEL RAY DESIGNS, ETLEVA GURAKUQI MATAJ, ARTAN MATAJ in his personal capacity and operating as ELEGANT LINES, DAVID BARNARD in his personal capacity and operating as DB DRAFTING AND CONSULTING

Footnotes

1. 1See M.F. v. S.N. 2000 5761 (ON CA), [2000] O.J. No. 2522 (C.A.) paras. 40-47; Svec v. College of Psychologists (Ontario), 2010 ONSC 5917