Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: AVTAR SINGH NANRA, Plaintiff
AND:
NRI LEGAL SERVICES, MINDSPRINGS (INDIA) PVT. LTD., NIDHI SINGH, NAVNEET SINGH and KARMINDER BRAR, Defendants
BEFORE: Barnes J.
COUNSEL: Ranbir S. Mann, Counsel, for the Plaintiff
Harinder Dhaliwal, Counsel for the Defendants
HEARD: April 19, 2017
ENDORSEMENT
INTRODUCTION
1This is a motion by NRI Legal Services, Mindsprings (India) PVT. Ltd., Nidhi Singh, Navneet Singh and Kariminder Brar (the Defendants) to strike portions of Avatar Singh Nanra’s (the Plaintiff) Statement of Claim. The issue of the Court’s jurisdiction was raised as alternative relief to striking the pleadings described.
2The motion to strike the pleadings is granted. Paragraphs 1(c), (d), 20 and 33 of the Plaintiff’s Statement of Claim is struck with leave to amend. Since the issue of jurisdiction was raised in the alternative, my decision on the motion to strike is dispositive of the motion.
BACKGROUND FACTS
3The corporate Defendants are incorporated in India. Defendant Nidhi Singh is the Chief Executive Officer of NRI Legal Services. Navneet Singh is the managing director of Mindsprings. Both executives are residents of India.
4The Plaintiff’s action stems from an agreement between the parties that the Defendant, Mindsprings, shall provide legal services in India for the Plaintiff. The Plaintiff retained Mindsprings for that purpose.
5The Plaintiff alleges that Mindsprings failed to represent his interests in India. The Plaintiff’s action is based on breach of contract, fraud and negligence. The claim is also based on an allegation that the Defendants conduct illegal business in Canada and, on that basis, the Plaintiff seeks punitive damages.
6The Defendants counter that the Plaintiff failed to provide the necessary documentation and withdrew a Power of Attorney which hampered his defence, and the Plaintiff is responsible for any difficulties related to his representation in India.
ISSUES
7The issues raised in this motion are:
Should paragraph 1 c) of the Statement of Claim, claiming punitive damages be struck?
Should paragraphs 1(d), 20, and 33, of the Statement of Claim, which allege that the Defendants engaged in illegal business in Canada be struck?
DISCUSSION/ANALYSIS
Should paragraph 1 c) of the Statement of Claim, claiming punitive damages be struck?
8Paragraph 1 c) of the Statement of Claim, claiming punitive damages shall be struck because it discloses no reasonable cause of action.
9“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”: Rule 25.06(1). A fact is “material” if it is necessary to prove the essential elements of the cause of action on which the claim or defence is based: Brydon v Brydon, [1951] O.W.N. 369 (Ont. C.A.). A judge may strike out a pleading on “the ground that, assuming the facts pleaded are true, it is plain and obvious and beyond doubt that the action discloses no reasonable cause of action or defence”: Rule 21.01(1)(b); Amato v Welsh, 2013 ONCA 258, [2013] O.J.No. 1857; Knight v Imperial Tobacco Canada Ltd. 2011 SCC 42, 2011 S.C.C. 42 at para. 17 (S.C.C).
10Paragraph 1 c) of the Statement of Claim states:
“The Plaintiff …………claims punitive damages in the sum of TWENTY FIVE THOUSAND ($25,000.00) for conducting an illegal and a fraudulent business in Canada”.
11Pleadings seeking punitive damages must include the particulars of the claim: Whiten v Pilot Insurance Co. 2002 SCC 18, [2002] 1 S.C.R. 595 at paras. 86 and 87 (S.C.C.): A proper pleading for punitive damages must provide sufficient particulars to identify these essential elements: 1) The Plaintiff must show that the Defendants’ conduct “is so harsh, vindictive, reprehensible, and malicious”, oppressive and high-handed such that it offends the Court’s sense of decency. 2) The Defendant has “committed a separate or independent actionable wrong that has caused damage to the Plaintiff”. 3) That compensatory damages are insufficient to express “repugnance at the conduct of the Defendant and to punish and deter”: Marshall v. Watson Wyatt & Co 2002 CanLII 13354 (ON CA), 155 O.A.C. 103 at paras. 44 – 46.
12The Plaintiff submits that the material facts relied on for this pleading are at paragraph 22 of the Statement of Claim where the Plaintiff pleads that the co-Defendant, Karminder Brar, humiliated the Plaintiff and threatened to get the Plaintiff arrested by police in India. The Plaintiff also submits that at trial a jury can determine whether the essential elements for a claim for punitive damages have been satisfied. This latter submission misapprehends the test for striking a pleading under Rule 21.01(1)(b). Assuming the facts as pleaded to be true, it is plain, obvious, and beyond doubt that the facts as pleaded do not contain sufficient particulars to satisfy the Marshall Waston test and, thus, disclose no reasonable cause of action.
13Paragraph 1 c) of the Statement of Claim is struck with leave to amend the pleading to plead specific facts (if available on the facts) to support a claim for punitive damages.
Should paragraphs 1(d), 20, and 33 of the Statement of Claim, which allege that the Defendants engaged in illegal business in Canada be struck?
14It is plain, obvious, and beyond doubt that paragraphs 1(d), 20, and 33 of the Statement of Claim disclose no reasonable cause of action. Those paragraphs shall be struck with leave to amend.
15Paragraph 1(d) of the Statement of Claim states:
The Plaintiff [seeks an Order] prohibiting the Defendants from conducting its business in Canada unless NRI LEGAL SERVICES has registered its business under the laws of the Government of Canada.
16Paragraph 20 of the Statement of Claim states:
Having no accounts received, Plaintiffs verily believe that Defendants operate and do business in Canada, accept fees in Canadian dollars from Canadian residents at the Canadian soil, however, provide no invoices for its services, and they pay no taxes to the Canadian government, and operates a non-registered business, hence their operations are illegal in Canada.
17Paragraph 33 of the Statement of Claim states:
Defendants do [their] business in Canada, however, provides no invoices for its services, assuming they pay no taxes to the Canadian government, hence their operations are illegal in Canada.
18These pleadings are based on negligence, fraud and breach of contact. A proper pleading of negligence must contain sufficient particulars to identify these essential elements described in Linden, Feldthusen, Canadian Tort Law 9th Edition at page 115 as follows:
A cause of action for negligence arises if the following elements are present:
The claimant must suffer some damage;
The damage suffered must be caused by the conduct of the defendant;
The defendant’s conduct must be negligent, that is, in breach of the standard of care set by the law;
There must be a duty recognized by law to avoid this damage;
The conduct of the defendant must be the approximate cause of the loss or, stated in another way, the damage should not be too remote a result of the defendant’s conduct;
The conduct of the plaintiff should not be such as to bar or reduce recovery, that is, the plaintiff must not be guilty of contributory negligence and must not voluntarily assume the risk.
19A proper pleading for breach of contract must provide sufficient particulars to demonstrate these essential elements described in Perell, Morden, The Law of Civil Procedure in Ontario, 2nd Edition at page 531 as follows:
A proper pleading of breach of contract requires sufficient particulars to identify:
(i) The nature of the contract,
(ii) The parties to the contract, the facts supporting privy of the contracts between the plaintiff and the defendant,
(iii) The relevant terms of the contract,
(iv) Which term was breached,
(v) The conduct given rise to the breach, and
(vi) The damages the flow from that breach.
20A proper pleading alleging fraud must contain sufficient particulars to show: 1) That the Defendants made the representation to the Plaintiff; 2) That the representations were false; 3) That the Defendants knew that the representations were false or were reckless without knowing whether they were false or true; 4) The false representations induced the Plaintiff to enter into the contract: Friedman, The Law of Contract in Canada, 6th Edition at page 285.
21A proper pleading based on negligence, fraud and breach of contract must have sufficient particulars to enable the identification of the essential elements described. In this analysis, the facts as pleaded are accepted as true. There are other paragraphs in the Statement of Claim which contain sufficient particulars to identify the essential elements for negligence, fraud and breach of contract, however, the particulars provided in paragraphs 1(d), 20 and 33, are irrelevant to negligence, fraud and breach of contract and insufficient to demonstrate why the Defendants’ activities are illegal.
22In addition, the action is premised on actions of the Defendants against the Plaintiff but the particulars provided do not identify actions of the Defendants against the Plaintiff, but rather actions of the Defendants against the public. For all these reasons it is plain, obvious, and without doubt that the pleadings do not have a reasonable cause of action.
23The Plaintiff submits that the pleadings raise issues of national importance that should be allowed to go to trial. Even if this were accurate, it does not displace the fact that these pleadings are improper for the reasons articulated. Therefore, paragraphs 1(d), 20, and 33 of the Statement of Claim are struck with leave to amend.
24Since the issue of jurisdiction was raised in the alternative, it is not necessary for me to address it on this motion. Should the parties be unable to agree on costs, the parties shall submit a cost outline within 20 days.
Barnes J.
Date: July 25, 2017
CITATION: NANRA v. NRI LEGAL SERVICES, 2017 ONSC 4503
COURT FILE NO.: CV-16-0186-SR
DATE: 20170725
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
AVTAR SINGH NANRA, Plaintiff
AND:
NRI LEGAL SERVICES, MINDSPRINGS (INDIA) PVT. LTD., NIDHI SINGH, NAVNEET SINGH and KARMINDER BRAR, Defendants
ENDORSEMENT
Barnes J.
Released: July 25, 2017