United Rentals of Canada Inc. v. Brooks, 2015 ONSC 531
COURT FILE NO.: CV-14-227-00
DATE: 2015 Jan 23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
United Rentals of Canada Inc.
Plaintiff (Responding Party)
– and –
Donald F. Brooks
Defendant (Moving Party)
S. Regenbogen, for the Plaintiff/Responding Party
Trevor Lawson, for the Defendant/Moving Party
HEARD: January 21, 2015 at Kingston
TRANMER, j.
MOTION DECISION
[1] The defendant moves for an order striking out seven paragraphs of the Statement of Claim for failure to comply with Rule 25.06(1) by failing to set out a concise statement of the material facts relied on by the plaintiff. The defendant moves, in the alternative, for an order for particulars of the allegations set out in those paragraphs.
[2] Exhibit 1, filed on the motion, sets out the paragraphs as pleaded alongside the defendant's Demand for Particulars that has been served on the plaintiff.
[3] The plaintiff has refused to answer the Demand for Particulars except for two responses which I shall refer to below. The plaintiff submits that what the defendant is in fact seeking is evidence which is not required to be pleaded under the Rules.
[4] The basic legal principles are not in dispute. A party is entitled to know the case alleged against him or her and that party may request particulars to ensure that discovery is confined to the material facts pleaded. Champagne v. Kapuskasing [1996] O.J. No. 5067, para. 12.
[5] Particulars are ordered primarily to have a pleading made sufficiently clear to enable the applicant to frame his answer thereto, properly; the secondary purpose is to prevent surprise at trial. A motion for particulars should only be granted where: 1. The particulars are not within the knowledge of the party demanding them; and 2. They are necessary to enable the party to plead his or her response. Pennyfeather v. Timminco Ltd. 2011 ONSC 4257, [2011] O.J. No. 3286, para 61; Steiner v. Lindzon 1976 CanLII 760 (ON SC), [1976] O.J. No. 2301, paras. 20, 24.
[6] Another principle of law applicable to this case is set out in Sears v. PI Media 2011 ONSC 2625, commencing at paragraph 37 through to paragraph 47. “The first thing the court normally expects to see on a motion for particulars is an affidavit of a directly involved, representative of the party, setting out in some detail the information required, the fact that it is not within their knowledge and how it is required to enable the party to plead.” That court held that the failure to file such an affidavit is not a technicality but rather a matter of substance. That court held that the onus was on the moving party to prove that the particulars were not within its knowledge and that the particulars demanded were necessary to enable the party to plead.
[7] There is no such affidavit before me, and no evidence from the defendant that the particulars demanded are not within his knowledge and that he requires them in order to properly plead to the Statement of Claim.
[8] The defendant notes that in Steiner, the learned justice noted that while ordinarily an affidavit should be delivered with the notice of motion, an affidavit is not necessary when the allegations are so general that particulars are manifestly necessary or so bald as to be recognized as a pleading of which particulars should be given without a supporting affidavit. Para. 24. see also Pennyfeather, para. 62.
ANALYSIS
[9] This is not a case where it is appropriate or necessary to strike out the challenged paragraphs of the Statement of Claim.
[10] I will deal with each of the challenged paragraphs in order bearing in mind the above noted legal principles.
PARAGRAPH 5
[11] The defendant seeks particulars of the “valuable consideration” specifically referred to in the pleading. Counsel for the defendant submits that the defendant cannot know what the plaintiff is referring to without particulars. Although there is no affidavit evidence from the defendant to this effect, it is clear that the Confidentiality, Non- Competition and Non- Solicitation Agreement is an essential issue in the lawsuit. While the defendant may believe and plead that there was no such valuable consideration, I am of the view that in order for the defendant to plead to this allegation he must know what the particular valuable consideration it is that the plaintiff is referring to.
[12] Therefore, I order that the particular demanded by the defendant be provided.
PARAGRAPH 15
[13] It is not necessary that there be a defence affidavit in regard to this paragraph. The defendant cannot know what has been reported to what plaintiff representative or by whom.
[14] The pleading itself is unclear and ambiguous as to whether it was the report that was made several months before Mr. Brooks gave notice of resignation, or whether the report was that Mr. Brooks planned to accept employment several months before he gave notice.
[15] In my view, particulars should be ordered, as requested, to enable Mr. Brooks to plead to this paragraph.
PARAGRAPH 20(e)
[16] This pleading attributes to Mr. Brooks telling plaintiff employees that they are going to get their “pink slips or words to that effect.”
[17] In order for the defendant to plead to this pleading, I find that it is necessary and I order that the plaintiff provide particulars of the precise words used.
PARAGRAPH 21
[18] Based on the law cited by the defendant: Brown, The Law of Defamation in Canada, 2nd ed. and Hotz v. Regan Desjardins LLP, 165 A.C.W.S. (3d) 627, aff’d 2008 ONCA 607, the plaintiff is ordered to provide the particulars requested by the defendant.
PARAGRAPHS 20(b), (c), (d)
[19] With respect to these three remaining paragraphs for which the defendant seeks particulars, I find that the pleadings are not so general that particulars are manifestly necessary or so bald as to be recognized as a pleading of which the particulars should be given without a supporting affidavit. It is not clear to me that the matters pleaded are not within the knowledge of the defendant. He has not satisfied the onus on him in that regard or in regard to his need for such particulars in order to plead. In this regard, I note that the plaintiff has indicated in its response to the demand for particulars that the defendant solicited or attempted to solicit each and every customer with whom he dealt with in the course of his employment with United Rentals. The plaintiff has also identified two employees which they say Mr. Brooks solicited to join him in his new employment.
DECISION
[20] For these reasons, I order particulars to be furnished by the plaintiff within 30 days here of, as set out above in regards to paragraphs 5, 15, 20(e) and 21.
[21] The defendant shall deliver his statement of defence within 30 days of receipt by him of these particulars.
[22] The motion in regard to striking out the subject paragraphs of the Statement of Claim and for particulars in regard to Paragraphs 20(b), (c) and (d) are dismissed.
COSTS
[23] In view of the divided success on this motion, I order no costs.
Honourable Mr. Justice Gary W. Tranmer
Released: January 23, 2015
CITATION: United v. Brooks, 2015 ONSC 531
COURT FILE NO.: CV-14-227-00
DATE: 2015 Jan 23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
United Rentals of Canada Inc.
Plaintiff (Responding Party)
– and –
Donald F. Brooks
Defendant (Moving Party)
motion decision
Tranmer, J.
Released: January 23, 2015