VAUGHAN (CITY) v. DI POCE MANAGEMENT LIMITED, 2018 ONSC 2139
COURT FILE NO.: CV-17-133207 (NEWMARKET)
MOTION HEARD: 2018 03 29
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: The Corporation of the City of Vaughan v. Di Poce Management Limited and Two Seven Joint Venture Limited
BEFORE: MASTER R.A. MUIR
COUNSEL: Christopher J. Matthews for the moving parties/defendants
Malini Vijaykumar for the responding party/plaintiff
REASONS FOR DECISION
[1] This motion is brought by the defendants pursuant to Rules 25.10 and 30.04(2) of the Rules of Civil Procedure, RRO 1990, Reg. 194 (the “Rules”). The defendants seek an order requiring the plaintiff to produce documents for inspection and provide particulars of certain allegations made by the plaintiff in the statement of claim. The plaintiff is opposed.
[2] The plaintiff seeks specific performance of an agreement of purchase and sale of land. The parties were involved in proceedings before the Ontario Municipal Board in 2014. They entered into minutes of settlement in January 2014. The plaintiff alleges that the settlement with the defendants included the transfer of 10 hectares of parkland to the plaintiff by the defendants. It is the agreement of purchase and sale for those parklands that the plaintiff seeks to enforce through this action.
[3] Paragraph 11 of the statement of claim refers to an “agreement of purchase and sale” between the plaintiff and the defendants. The defendants served a request to inspect documents asking for a copy of the agreement referred to in paragraph 11. Rule 30.04(2) requires a plaintiff to produce for inspection any document referred to in its statement of claim.
[4] The plaintiff responded to this request to inspect documents by stating “paragraph 11 of the statement of claim refers to the totality of documents which will be produced in due course, but which culminated in the form of written agreement of purchase and sale which was settled between the parties in February 2016”. The plaintiff attached blacklined and final draft versions of this unsigned agreement of purchase and sale.
[5] In my view, this is a satisfactory response to the request to inspect the alleged agreement of purchase and sale. The plaintiff’s response could have been drafted more carefully. It is obvious that the agreement of purchase and sale cannot be comprised of “the totality of documents which will be produced” in this litigation. As with pleadings, particulars ought to be read generously with allowance for drafting deficiencies. When read in its entirety, the plaintiff’s response indicates that the blacklined and final drafts of the agreement of purchase and sale are the documents referred to in paragraph 11. This is also made clear by the plaintiff’s response to the defendants’ demand for particulars in relation to the terms of the agreement of purchase and sale. In response to that demand, the plaintiff stated that the terms of the agreement of purchase and sale are those set out in the draft agreement of purchase and sale. No further response is required to the request to inspect the agreement of purchase and sale.
[6] A second request to inspect is also in dispute between the parties. The defendants seek an order to inspect the document or documents referred to as an “agreement” in paragraph 9 of the statement of claim. In response, the plaintiff has stated that the agreement is evidenced by an email exchange of June 13, 2014. The plaintiff has produced this email. The plaintiff’s response also references related documents but it is clear from the answer given that these related documents are not the “agreement” referred to in paragraph 9 but rather evidence supporting the agreement. No further response is required.
[7] The law in relation to particulars is clear and straightforward. Rule 25.06(1) provides that a pleading shall contain a concise statement of material facts but not the evidence by which those facts are to be proved. Particulars will be ordered where they are not within the knowledge of the party requesting them, in the sense that the requesting party seeks to understand what the other party intends to prove, and are necessary for the party to plead. See Van-Rob Inc. v. Rapid Metals LLC, 2016 ONSC 1321 at paragraphs 3 to 8 and Walsh v. Toronto (City) [2005] OJ No. 6276 (SCJ) at paragraph 21.
[8] The defendants seek particulars of the terms of the agreement of purchase and sale referred to in paragraph 11 of the statement of claim. The plaintiff’s response is clear. The terms are those found in the draft agreement of purchase and sale produced in response to the defendants’ request to inspect documents. The draft agreement is lengthy and detailed. It specifically sets out the terms of the alleged agreement, including the property in question, the parties to the agreement and the purchase price and the formula to calculate the purchase price. In my view, no further particulars are required.
[9] The defendants also seek particulars of the allegations in paragraphs 9 and 11 of the statement of claim that the agreement of purchase and sale is binding on the defendants and properly entered into by the plaintiff. The plaintiff responded by stating that these were questions of law and not the proper subject of a demand for particulars. The plaintiff also states that these facts are within the knowledge of the defendants.
[10] I do not agree with the plaintiff’s submission. In the particular circumstances of this action, these additional particulars are required. This is not a typical claim to enforce an agreement of purchase and sale. There is no signed agreement of purchase and sale. The plaintiff relies on an agreement it refers to as a “draft agreement”. Paragraph 9 of the statement of claim refers to an agreement made on June 13, 2014 but the by-law authorizing the plaintiff to enter into the agreement was not passed until June 24, 2014. The draft agreement is also dated June 24, 2014. The plaintiff relies on an email response from a person who was apparently the defendants’ real estate consultant as constituting the defendants’ acceptance of the agreement. In my view, additional particulars are required in the circumstances of this action. The defendants are entitled to know the facts the plaintiff is relying on and intending to prove in support its allegation of a binding agreement of purchase and sale. Both of these demands for particulars shall be answered by the plaintiff providing the specific facts it relies upon to support its allegation of a binding agreement, including any facts within its knowledge in support of the parties’ authority to enter into the agreement.
[11] I therefore order as follows:
(a) on consent, the words appearing after the word “City” in paragraph 14 of the statement of claim are hereby struck out;
(b) the plaintiff shall provide further particulars in support of its allegation of a binding agreement of purchase and sale, including any facts within its knowledge in support of the parties’ authority to enter into the agreement, within 30 days;
(c) the balance of the relief requested on this motion is dismissed.
[12] The parties shall confer and attempt to agree on the issue of the costs of this motion. If the parties are unable to agree, they shall provide the court with brief submissions in writing by May 3, 2018. These submissions may be sent directly to me by email.
2018 04 03
Master R. A. Muir