Court File and Parties
COURT FILE NO.: CV-14-117977
DATE: 20180306
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
2292142 Ontario Inc. and 2292142 Ontario Inc. operating as R. Ferri Motorsports
Plaintiffs
– and –
Bordin Racing Ltd., Andrew Bordin, AIM Autosports, Fortunato Bordin Investments Canada Limited, Fortunato Bordin operating under the firm name and style of Bordin Investments Limited
Defendants
COUNSEL:
Christian R. Piersanti, counsel for the Plaintiff
Michael F. Cooper, counsel for the Defendants Bordin Racing Ltd., Andrew Bordin and AIM Autosports
HEARD: February 28, 2018
ruling on summary judgment motion
boswell j.
[1] R. Ferri Motorsports leased commercial space in Vaughan from Bordin Racing Ltd. The lease was terminated; wrongfully in Ferri’s view. It sues for damages it claims to have incurred as a result of the termination.
[2] Two of the defendants – AIM Autosports and Andrew Bordin (the “Moving Parties”) – assert that they had nothing to do with the lease and they ask the court to summarily dismiss the action against them.
[3] The following reasons explain why their motion succeeds.
I. OVERVIEW
Ferrari Racing
[4] Remo Ferri operates a number of Ferrari dealerships.
[5] Sometimes people who buy Ferrari automobiles choose to race them. Ferrari dealerships offer a program to those who do. Specifically, Ferrari sponsors a Ferrari Challenge race series that owners may participate in, which includes a number of annual races in Canada and the U.S.
[6] Fortunato Bordin and his son, Andrew Bordin, were customers of one of Mr. Ferri’s dealerships and have been involved in racing Ferrari automobiles for a number of years.
[7] Andrew Bordin was once, in fact, a driver in the C.A.R.T. series, which was an upper tier racing series for open-wheel cars (popularly known as “Indy Cars”). After retiring from driving, he got involved in race team management through a partnership known as AIM Autosports (“AIM”).
[8] At the time that the events giving rise to this action occurred, AIM was managing a Ferrari GT class race car in the Grand AM Rolex racing series (specifically the #69 car). AIM operated from a race shop located in a building at 35 Silton Road, Vaughan.
[9] In 2012, Mr. Ferri decided to become more seriously involved in racing. He incorporated the plaintiff company for what he described as two purposes. First, to manage five customer-owned and dealership-serviced racing cars in the Ferrari Challenge series. Second, to acquire his own Ferrari GT class car to race in the 2013 Grand AM Rolex series (as the #61 car).
The Services Agreement
[10] Mr. Ferri lacked experience in the Grand AM Rolex series, so he negotiated a services agreement with Andrew Bordin for the management of his GT class car for the 2013 race season. Essentially Mr. Ferri, through the plaintiff corporation, supplied the car and the operating budget and otherwise sat back and enjoyed the racing.
[11] The services agreement was reduced to writing, but not executed. An initial draft, prepared by Mr. Ferri’s lawyer in December 2012, included Mr. Bordin personally as a party to the agreement. Mr. Bordin’s lawyer made a number of changes to the agreement and returned a marked-up draft in mid-January 2013. The revised draft deleted Mr. Bordin as a personal party; the intention being that all race management services would be provided by AIM. Mr. Ferri’s lawyer subsequently emailed Mr. Bordin’s lawyer and reiterated the importance of having Mr. Bordin personally bound by the agreement. There is no evidence of any response to Mr. Ferri’s lawyer’s email.
[12] Though the written services agreement was never signed, it seems to have been carried out. There is no dispute that AIM managed the plaintiff’s GT race team in the 2013 Grand AM Rolex Series. It is a live issue as to whether Mr. Bordin did so in his personal capacity. At any rate, the parties are agreed that the services agreement was completed satisfactorily and without breach. It terminated at the end of the 2013 race season and was not renewed.
The Sublease
[13] On November 2, 2012, the plaintiff entered into an agreement with Bordin Racing Ltd. (“BRL”), to sublease a 10,694 square foot area on the main floor of 35 Silton Road. Recall that 35 Silton was the location of AIM’s race shop for the #69 car. The sublease was for the east half of the building. AIM occupied the west half of the building.
[14] The property at 35 Silton was registered to Fortunato Bordin Investments Canada Limited (“FBI”). BRL is, or was, a tenant of the subleased premises pursuant to a head lease with FBI.
[15] According to the evidence given by Andrew Bordin under cross-examination, BRL is a company owned and operated by his father, Fortunato Bordin. Andrew Bordin may be a director of the company, but he was not sure. BRL is also partner in AIM. Andrew Bordin was not a partner in AIM, but appears to have been key to its operations.
[16] The term of the sublease was five years, commencing December 1, 2012. The use of the premises was specified as “Automotive”, but the sublease contains no other details of the type of business to be carried on. Neither of the Moving Parties was a party to the sublease.
The Termination of the Sublease
[17] In December 2013 Mr. Ferri advised Andrew Bordin that he was not going to renew the services agreement for the 2014 racing season. The sublease, nevertheless, had another four years to run.
[18] On January 9, 2014, Andrew Bordin sent the following email to Remo Ferri:
Remo as per our conversations over the last month or so to amicably agree to terminate the lease at 35 Silton Road.
I would like to agree and set a date of March 31st to vacate the space if possible.
Remo thank you for your patients (sic) and reverence.
[19] Mr. Ferri’s lawyer responded several days later and indicated that Mr. Ferri was prepared to consider a termination of the lease provided he received a lump sum payment for his move-in and move-out costs and any differential in rent he might have to pay in an alternative location.
[20] On January 24, 2014, BRL’s corporate counsel, Frank A. Torchia, wrote to the plaintiff and asserted that the plaintiff may be in breach of a number of terms of the lease. He cited the following specific concerns:
(a) The failure to install the necessary equipment to dispose of oil and other lubricants;
(b) The failure to acquire the proper permits for the operation of whatever business was being operating in the premises; and,
(c) The suggestion that the plaintiff’s business was a nuisance and was interfering with BRL’s business. In particular, it was suggested that the plaintiff was attempting to hire BRL’s employees.
[21] The plaintiff’s lawyer responded to Mr. Torchia several days later and denied that the plaintiff was in breach of the sublease in any way. Nevertheless, Mr. Torchia, on behalf of BRL, continued to assert that the plaintiff had failed to obtain an occupancy permit.
[22] Ultimately, on February 21, 2014, a Notice of Termination by Landlord was posted on the subleased premises and the locks were changed. The Notice declared that the termination was the result of a failure on the part of the tenant to provide approved drawings and an occupancy permit. By this point, anticipating that the lease was going to be terminated, the plaintiff had removed its assets from the premises.
[23] For reasons not made clear to me, the Notice of Termination referenced Bordin Investments Limited as the landlord.
II. THE CLAIM
[24] A statement of claim was issued on behalf of the plaintiff on February 27, 2014. It has gone through at least three iterations. The current version appears to be an Amended Amended Statement of Claim.
[25] The plaintiff seeks a declaration that BRL breached the sublease and claims general damages of $250,000; special damages of $100,000; and punitive damages of $50,000.
[26] Damages are sought against all defendants, including the Moving Parties, on the basis of:
• Breach of the sublease;
• Breach of the services agreement;
• Intentional interference with economic relations;
• Misrepresentation;
• Trespass; and,
• Oppression.
[27] As against the Moving Parties, the following specific allegations are made:
(a) The plaintiff entered the sublease and services agreement relying on representations made by Bordin Group individually or collectively[^1]. I note, parenthetically, that “Bordin Group” was defined as a collective of BRL, Andrew Bordin and/or AIM;
(b) All the defendants, including the Moving Parties, intentionally interfered with the economic relations of the plaintiff, intending to injure the plaintiff. They did so by unlawful means directed at third parties – namely the plaintiff’s customers, who would have an actionable claim for unlawful seizure of their property[^2]; and,
(c) If the plaintiff in fact required an occupancy permit, it was the responsibility of the Moving Parties, or either of them, to obtain that permit. Their failure to do so led to the termination of the lease.[^3]
III. THE LIVE ISSUES
[28] Obviously the central question asked by this motion is whether the plaintiff has raised a genuine issue for trial against either of the Moving Parties. The Moving Parties contend that there is absolutely no basis for a finding of liability against either of them for any of the plaintiff’s claims. The plaintiff, of course, urges the court to come to the opposite conclusion. The multi-pronged attack the plaintiff has utilized in its claim requires the court to dispose of a number of sub-issues before coming to a conclusion about the central issue.
[29] To summarize, the court is asked to assess whether any of the following assertions raises a genuine issue requiring a trial to resolve:
(a) The Moving Parties are liable to the plaintiff for breaching the lease and/or the services agreement;
(b) The Moving Parties were responsible for obtaining an occupancy permit for the subleased premises;
(c) The Moving Parties negligently made false or misleading representations to the plaintiff in relation to the sublease or the services agreement;
(d) The Moving Parties intentionally interfered with the plaintiff’s economic relations; and,
(e) The Moving Parties trespassed against the subleased premises.
[30] I note that while the statement of claim raises an oppression remedy issue, the plaintiff’s lawyer indicated, during submissions, that he was not pursuing that head of relief.
[31] I intend to proceed as follows. First, I will describe the basic legal framework in which summary judgment motions are considered. I will then canvass the law as it relates to contract interpretation generally and then to the torts raised in the pleadings. Once I have completed my review of the applicable legal principles, I will discuss and analyze the live issues in the order I have outlined them above.
IV. THE LEGAL FRAMEWORK
Summary Judgment Motions
[32] The overarching – and organizing – principle of the Rules of Civil Procedure is found in Rule 1.04(1). The rules are to be liberally construed “to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.”
[33] Rule 1.04(1) informs many of the rules that follow it, including one that establishes a process by which a party may move for summary judgment.
[34] Pursuant to rule 20.04(2)(a), the court is directed to grant summary judgment if it is satisfied that there is no genuine issue with respect to a claim that requires a trial to resolve. The rule clearly serves the principle found in Rule 1.04.
[35] Rule 20 has been around, in one iteration or another, for decades. Over those decades litigation has become increasingly expensive. At the same time, pressures on the courts to deal with criminal matters within constitutionally-protected timelines have resulted in a reduction in the resources available to address civil matters. The combination of prohibitive expense and lack of resources has led some critics to argue that access to civil justice has reached a crisis point.
[36] The availability of summary judgment as a mechanism for the early, just and cost-effective resolution of civil disputes has been broadened as one means of tackling the access to justice issue.
[37] While the basic threshold requirement for summary judgment has not changed, revisions to the rule enacted in 2010 enhanced the powers of the motion judge to make findings of fact on contested evidence, thereby widening the scope of cases that might be determined summarily. While there was once a time when judges presiding in motions court were instructed not to weigh evidence or make credibility findings on summary judgment motions, that time has passed.
[38] Rule 20.04(2.1) now provides as follows:
In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
[39] The current iteration of Rule 20 was recently considered by the Supreme Court in Hryniak v. Mauldin, 2014 SCC 7. Hryniak expressly confirms that the ability to grant summary judgment is an important tool; one that significantly enhances the court’s ability to provide timely and cost-effective justice to litigants.
[40] Although the rule does not, on its face, appear to require a staged analysis, Hryniak instructs that Rule 20.04(2) should, in fact, be applied in two stages.
[41] First, the motions judge must determine if there is a genuine issue requiring a trial based only on the evidence filed on the motion, without resort to the enhanced fact-finding powers described in Rule 20.04(2.1). No genuine issue requiring a trial will exist if the evidence permits the motions judge to fairly and justly adjudicate the dispute in a timely, affordable and proportionate manner. If no genuine issue requiring a trial exists, judgment should be rendered accordingly.
[42] If the motions judge concludes at the first stage that a genuine issue for trial exists, then stage two is triggered. At stage two, the motions judge is directed to consider whether the need for a trial may be avoided by resort to the enhanced fact-finding powers set out in Rule 20.04(2.1). The motions judge may utilize those powers, in his or her discretion, unless doing so would be contrary to the interests of justice.
[43] As I noted, Rule 20 has been around for a long time. A significant body of case law developed under older versions of the rule. Some of that case law provided guidance as to the obligations of parties engaged in a Rule 20 motion. Much of it remains good law. As Diamond J. recently observed in Penretail Management Ltd. v. 2380462 Ontario Inc. (o/a Bolton Health Centre), 2016 ONSC 600, at para 10:
…The motions judge must still take a "hard look" at the evidence to determine whether it raises a genuine issue requiring a trial, and as a result each party must still put its "best foot forward" and submit cogent and compelling evidence to support or oppose the relief sought. A moving party has both a legal and evidentiary onus to satisfy the Court that there is no genuine issue requiring a trial. It is the moving party's obligation to present a record that can enable the Court to avail itself of the enhanced powers under Rule 20.04 if the record warrants the exercise of such discretion.
Contractual Interpretation
[44] The leading case on the proper approach to be taken in contract interpretation is Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53. In Sattva, the Supreme Court observed that modern courts take a practical, common-sense approach and eschew technical rules of construction.” The central concern is to identify the objective intent of the parties. To do so, the court must review the contract “as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract.” (Para. 47).
[45] Sattva is consistent with the Court of Appeal’s 2007 ruling in Ventas, Inc. et.al. v. Sunrise Senior Living Real Estate Investment Trust et. al., (2007), 2007 ONCA 205, 85 O.R. (3d) 254, at page 10. In Ventas the Court of Appeal gave the following directions as to how a court should approach the interpretation of a commercial agreement. Specifically, a contract should be interpreted:
(a) As a whole, in a manner that gives meaning to all of its terms and avoids an interpretation that would render one or more of its terms ineffective;
(b) By determining the intention of the parties in accordance with the language they have used in the written document and based upon the “cardinal presumption” that they have intended to say what they have said;
(c) With regard to objective evidence of the factual matrix underlying the negotiation of the contract, but without reference to the subjective intention of the parties; and,
(d) In a fashion that accords with sound commercial principles and good business sense, and that avoids a commercial absurdity.
Negligent Misstatement
[46] In certain circumstances, a misrepresentation made negligently by a party may be actionable. The tort of negligent misstatement in tort was first recognized by the House of Lords in Hedley Byrne & Co. v. Heller & Partners Ltd., [1964] A.C. 465 (H.L.). Our own Supreme Court has identified five general requirements to establish the tort:
(a) A duty of care must arise as a result of a special relationship between the plaintiff and defendant;
(b) The representation in issue must be untrue, inaccurate or misleading;
(c) The defendant must have acted negligently in making the misrepresentation;
(d) The plaintiff must have reasonably relied on the misrepresentation; and,
(e) The plaintiff must have suffered damages as a result of its reasonable reliance.
See Queen v. Cognos Inc., 1993 CanLII 146 (SCC), [1993], 1 S.C.R. 87, at para. 34.
Intentional Interference with Economic Relations
[47] The tort of intentional interference with economic relations is one seen relatively rarely in the courts. Its essential elements were set out succinctly by Blair J.A. in Grand Financial Management Inc. v. Solemio Transportation Inc., 2016 ONCA 175. There are three:
(a) The defendant must have intended to injure the plaintiff’s economic relations;
(b) The interference must have been by illegal or unlawful means; and,
(c) The plaintiff must have suffered economic harm or loss as a result.
[48] The tort involves a three party paradigm. More specifically, it permits a plaintiff to sue a defendant for economic loss resulting from the defendant’s unlawful act towards a third party. As Cromwell J. described it in Bram Enterprises Ltd. v. A.I. Enterprises Ltd., 2014 SCC 12, at para. 23:
Liability to the plaintiff is based on (or parasitic upon) the defendant’s unlawful act towards the third party. While the elements of the tort have been described in a number of ways, its core captures the intentional infliction of economic injury on C (the plaintiff) by A (the defendant)’s use of unlawful means against B (the third party).
Trespass
[49] The tort of trespass is relatively straightforward. It arises where the defendant, without lawful justification, voluntarily (though not necessarily intentionally) enters upon, remains upon, or places or projects any object upon lands that the plaintiff has a lawful right to occupy and possess: see Rossiter v. Swartz, 2013 ONSC 159, at para. 21.
V. DISCUSSION
[50] I intend to address the issues in the order that I referred to them above.
Issue One: Is there any basis upon which the Moving Parties, as non-parties to the sublease, may be held liable for breaching it?
[51] The plaintiff’s claim is for damages arising from the wrongful termination of a commercial sublease. The Moving Parties were not signatories to the sublease. It strikes me as straightforward, as a matter of basic contract law, that they cannot be held liable for breach of a contract that they were not parties to.
[52] The plaintiff’s argument is, however, that while the Moving Parties may not have breached the sublease, they may have breached a provision of the services contract. That breach may in turn have caused the plaintiff to inadvertently breach the sublease. The claim against the Moving Parties is, in the result, essentially a claim over for any damages sustained by the plaintiff as a result of a breach of the sublease.
[53] Having said that, Mr. Ferri conceded, on cross-examination, that there were no breaches of the services agreement. On the surface, this admission may appear awkward for the plaintiff. It must, however, be understood in context. BRL terminated the plaintiff’s sublease on the basis that it failed to get an occupancy permit for its use and occupation of the subleased premises. Mr. Ferri’s position is that no occupancy permit was necessary. On the other hand, if the court determines that an occupancy permit was required, his alternate position is that the Moving Parties had the obligation to get it, pursuant to the terms of the services agreement. Mr. Ferri’s evidence was not as precise as it might have been, but I do understand his position.
[54] The bottom line is that, theoretically, the plaintiff may have a viable claim over against the Moving Parties provided it can satisfy the court that the Moving Parties were obliged, under the services agreement, to obtain an occupancy permit for the plaintiff’s use of the subleased premises.
Issue Two: Were the Moving Parties responsible for obtaining an occupancy permit for the subleased premises?
[55] The sublease was prepared on a standard Ontario Real Estate Association form, together with a number of schedules. Schedule “A” provided, amongst other things, that the plaintiff was to comply with all municipal by-laws. The plaintiff was to seek approval for its use of the premises from the building standards department of the City of Vaughan.
[56] The failure of the plaintiff to obtain and produce an occupancy permit was one of the central defaults alleged in the Termination Notice. The parties are clearly not ad idem about a number of issues surrounding the occupancy permit. The sub-landlord, BRL, takes the position that an occupancy permit was required and that the plaintiff was responsible for getting it. The plaintiff’s position is that no occupancy permit was required. Alternatively, if it was required, the Moving Parties were obliged to obtain it. The Moving Parties allege that they had no obligation to get an occupancy permit if one was required.
[57] Mr. Ferri’s evidence was that he hired the Moving Parties to manage his Ferrari GT race team on a “turn-key” basis. As I noted, the services agreement was reduced to writing, but not signed. Its precise terms are perhaps a matter of some debate. It appears agreed, however, that it included the following term:
The services provided by the Manager shall be consistent with the role of a manager of an independent racing team for the 2013 GA Series and services of the Manager will include but not be limited to the following:
(h) maintain all necessary licenses, and qualification to perform their services, including with the GA Series, Ferrari or other authority which the Manager represent and warrant they (sic) have.
[58] Mr. Ferri gave evidence during his cross-examination that the Moving Parties used the subleased premises for storing items as well as for working on the plaintiff’s #61 car.
[59] The plaintiff’s lawyer submitted that since the subleased premises were used by the Moving Parties as a race shop for the #61 car, the Moving Parties – collectively the “Manager” under the services agreement – were responsible for obtaining and maintaining any necessary occupancy permit for that space.
[60] Counsel to the Moving Parties, on the other hand, took the position that they did not use the subleased premises for any reason. He said they used their own half of the building at 35 Silton Road as a race shop for both the plaintiff’s #61 car as well as a third party’s #69 car.
[61] Under cross-examination, Andrew Bordin testified that they used their own part of the premises at 35 Silton Rd. to store and work on all of their customers’ cars. He said, “We operate and work on and engineer all our race cars for our customers out of that side of the building.” He denied that they used the subleased premises for that purpose.
[62] I am unable, on the current evidentiary record, to resolve the factual dispute about whether the Moving Parties, or either of them, used the subleased premises to store the plaintiff’s race car or its parts, or to work on the plaintiff’s car. I am also unable, on this evidentiary record, to determine if an occupancy permit was required in relation to the plaintiff’s use and occupation of the subleased premises.
[63] Having said all of that, I am entitled to assume that each party has put their best foot forward on this motion. I am entitled to proceed on the basis that the evidence in relation to the occupancy permit – and who was to obtain it – will not change markedly, as between the parties to this motion, at the trial.
[64] That being the case, I am in as good a position as the trial judge will be to interpret the services agreement. More particularly, to answer the question of whether it obliged the Moving Parties, or either of them, to obtain an occupancy permit in relation to the subleased premises.
[65] In my view, it did not.
[66] I find that there is insufficient evidence to bind Andrew Bordin personally to the services agreement. He simply never agreed to be bound by it, despite Mr. Ferri’s desire to the contrary.
[67] In relation to AIM, I find that the services agreement, interpreted in a commercially reasonable manner, does not oblige it to obtain an occupancy permit from the local municipality in relation to the subleased premises.
[68] I find that the evidence between Mr. Ferri and Mr. Bordin was consistent about the fact that the services agreement and the sublease agreement were two separate agreements. One did not depend on the other.
[69] The plaintiff was incorporated, according to Mr. Ferri’s evidence, to manage his racing endeavours. He was managing five cars in the Ferrari Challenge Series. He needed a race shop for those cars. He entered the sublease to obtain that race shop.
[70] The plaintiff also acquired a Ferrari GT to race in the Rolex Series. He needed a team with the expertise to manage that car. The services agreement addressed the need for that team and the management of the GT car.
[71] In my view, the obligation to “maintain all necessary licenses, and qualification (sic) to perform their services including with the GA Series, Ferrari, or other authority” meant any licensing in relation to the operation of the race car. In other words, the necessary authorizations to race the car in the Rolex Series. It had nothing to do with the subleased premises and in fact the agreement made no mention of those premises.
[72] Indeed, one might reasonably expect that if the services agreement intended, as Mr. Ferri said it did, that the Moving Parties would provide a “turn-key” race team service, it would necessarily require the Moving Parties to provide their own race shop.
[73] I find, in any event, that even if AIM used the subleased premises as Mr. Ferri suggested it did – to store items and to do some of the work on the #61 car – the dominant use of the subleased premises was in relation to the race cars the plaintiff managed. It does not make commercial sense that AIM would be responsible for obtaining municipal authorizations for the plaintiff’s use of the premises; a use it had no knowledge of or control over.
[74] I conclude that neither of the Moving Parties had any obligation under the services agreement to obtain an occupancy permit for the subleased premises. In the result, any allegation against the Moving Parties that they breached either the sublease or the services agreement does not raise a genuine issue requiring a trial to resolve.
Issue Three: Did either of the moving parties negligently make false or misleading representations to the plaintiff in relation to the sublease or the services agreement?
[75] In its Amended Amended Statement of Claim, the plaintiff alleged that it entered the sublease and services agreement on the basis of representations made by the defendants, including the Moving Parties. It has never been made clear what those representations were, how they were relied upon, how they might have been false, misleading or negligent, or what damages allegedly arose as a result of any reliance on them.
[76] Under cross-examination, Mr. Ferri was explicitly asked what representations the Moving Parties made. He said:
• To manage the car;
• To take care of the team; and,
• To prepare the car go (sic) racing.
[77] None of the purported representations are in fact representations at all. Moreover, there is no evidence that any of them were untrue, inaccurate or misleading.
[78] On the evidence now before the court, none of the essential elements of an action based on negligent misrepresentation are, or could be, made out. No genuine issue for trial has been raised in relation to this head of relief.
Issue Four: Is there any basis upon which either plaintiff may be found liable for intentional interference with the plaintiff’s economic relations?
[79] The short answer to this question is no. In my view, this claim is misconceived.
[80] Recall that this tort is characterized by “the intentional infliction of economic injury on C (the plaintiff) by A (the defendant)’s use of unlawful means against B (the third party).”[^4]
[81] The position taken by the plaintiff is that the Moving Parties have inflicted economic injury on it by interfering, in an unlawful way, in the relationship between the plaintiff and its customers – the owners whose race cars the plaintiff was managing.
[82] There are at least two fundamental problems with the plaintiff’s position.
[83] First, the alleged unlawful conduct is the termination of the sublease. But the Moving Parties did not terminate the sublease. Only BRL could do so.
[84] Second, the Moving Parties did not interfere in any way in the relationship between the plaintiff and the owners whose cars it managed. In fact, BRL did not even do so. There is no evidence in the record that any of the defendants intended or threatened to seize any of the plaintiff’s equipment or cars. There is no evidence that the owners’ cars were at any time in jeopardy.
[85] This aspect of the plaintiff’s claim has no legs whatsoever. It does not raise a genuine issue for trial.
Issue Five: Is there any basis upon which either plaintiff may be found liable in trespass?
[86] Again, the short answer to this question is no.
[87] There is simply no evidence in the record to support the assertion that the Moving Parties entered upon, remained upon, or placed or projected any object upon the subleased premises, at least not without a license to do so.
VI. CONCLUSION
[88] The motion of the Moving Parties succeeds. For the reasons expressed, I conclude that there is no genuine issue for trial raised against either of the Moving Parties.
[89] If the parties are unable to agree on the appropriate costs to be paid in relation to the motion, they may make written submissions on a 14 day turnaround. The Moving Parties shall serve and file their submissions by March 20, 2018. The plaintiff shall serve and file its cost submissions by April 3, 2018. Submissions shall not exceed two pages in length, not including and Costs Outlines. Submissions should be forwarded to my assistant, Diane Massey by email at diane.massey@ontario.ca.
Boswell J.
Released: March 6, 2018
Endnotes
[^1]: Amended Amended Statement of Claim, para. 12.
[^2]: Ibid, para. 73
[^3]: Ibid, para. 25
[^4]: Bram Enterprises Ltd. v. A.I. Enterprises Ltd., 2014 SCC 12, 2014 SCC12, at para. 23