2018 ONSC 2552
COURT FILE NO.: CV-17-00587821
MOTION HEARD: 20180411
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: William Day Construction Limited, Plaintiff
AND:
Wilderness Helicopters (2009) Ltd., Defendant
BEFORE: Master B. McAfee
COUNSEL: Ranjan Das and Sam Gebrael for the Moving Party, the Defendant
Aleksandar Jovanovic for the Responding Party, the Plaintiff
HEARD: April 11, 2018
REASONS FOR DECISION
Nature of the Motion
[1] This is a motion brought by the defendant Wilderness Helicopters (2009) Ltd. (Wilderness Helicopters) for an order requiring the plaintiff William Day Construction Limited (William Day) to produce for inspection certain documents and to provide particulars.
[2] William Day opposes the motion.
Nature of the Action
[3] The action was commenced on December 5, 2017. William Day seeks damages for outstanding rent allegedly owing on an equipment lease (the Lease). The subject equipment is a helicopter (the Helicopter).
Request to Inspect Documents
[4] On January 15, 2018, Wilderness Helicopters served a request to inspect documents.
[5] On January 23, 2018, William Day responded to the request to inspect documents and provided a copy of William Day’s copy of the Lease and a copy of two extensions of the Lease. The plaintiff pleads and relies on the terms of the Lease in the statement of claim.
[6] The documents set out in the request to inspect documents remaining at issue on this motion are as follows:
| Paragraph of Statement of Claim Relied Upon | Inspection of Document Requested |
|---|---|
| 8. In or about July, 2014, Wilderness Helicopters advised William Day that it was having financial difficulties and was not able to pay Rent for the month ending June, 2014. | The document(s) by which Wilderness Helicopters “advised” William Day “it was having financial difficulty”. |
| 10. William Day thereafter agreed to extend the Lease Term to permit Wilderness Helicopters continued use of the Helicopter so that it could attempt to generate revenue and agreed to extend credit and/or delay payment of the outstanding Rent of $315,958.02 inclusive of HST. | All documents by which William Day “agreed to extend” the Lease Term. |
| 12. As such, in or about the fall of 2017, William Day sold the Helicopter to a third party and in or about the same time, made demands of Wilderness Helicopters to pay the outstanding Rent. | All documents pertaining to the sale of the Helicopter “sold” to a third party. All documents as to how William Day “made demands”. |
| 13. Although Wilderness Helicopters acknowledged the amount owed of $315,958.02 inclusive of HST, it has refused or failed to pay it, in breach of its obligations under the Lease, as amended, thereby causing damages to William Day. | All documentation by which Wilderness Helicopters “acknowledged”, the amounts allegedly owed. |
[7] Rule 30.04(2) of the Rules of Civil Procedure provides as follows:
30.04(2) A request to inspect documents may also be used to obtain the inspection of any document in another party’s possession, control or power that is referred to in the originating process, pleadings or an affidavit served by the other party.
[8] The right to inspect documents pursuant to rule 30.04(2) is limited to situations where the originating process, pleadings or affidavit refers to a specific document or documents. General references to non-specific documents do not give rise to a right to inspect under rule 30.04(2) (Telus Communications Co. v. Kennedy, 2010 ONSC 2135, [2010] O.J. No. 3004 (Master) at para. 63 and Kenning v. Odaguchi, [1992] O.J. No. 1416 (Master) at page 2.)
[9] With respect to paragraph 10 of the statement of claim and the request to inspect all documents by which William Day agreed to extend the Lease, as noted above, copies of two Lease Extensions have been produced.
[10] With respect to paragraph 12 of the statement of claim and the request to inspect all documents as to how William Day “made demands”, William Day’s counsel has advised that William Day recalls oral demands and if written correspondence is located, it will be produced during examinations for discovery as part of William Day’s production obligations (see letter dated February 12, 2018, sent in response to the demand for particulars). If the demands were made in writing, I am ordering that the demands be produced for inspection (Petro-Diamond Inc. v. Verdeo Inc., [2013] O.J. No. 5923 (S.C.J.) at paras 12-13).
[11] The balance of the documents at issue are non-specific documents and do not give rise to a right to inspect under rule 30.04(2).
Demand for Particulars
[12] On January 31, 2018, Wilderness Helicopters served a demand for particulars.
[13] On February 12, 2018, William Day responded to the demand for particulars.
[14] The particulars set out in the demand for particulars requested remaining at issue on this motion are as follows:
| Paragraph of Statement of Claim Relied Upon | Particulars Sought |
|---|---|
| 5. The Lease Agreement included the following express, or alternative implied, terms: (a) the term of the lease was 48 months commencing January 28, 2011 and terminating January 28, 2015 (the “Lease Term”); (b) Wilderness Helicopters was obliged to pay to William Day monthly lease payments in the amount of $46,601.48 plus HST for a total amount of $52,659.97 inclusive of HST, due on the 28th day of each month for the Lease Term (the “Rent”); (c) Overdue Rent payments were to accrue interest at the annual rate of 3% over the Bank of Nova Scotia’s prime lending rate from its due date until the amount is paid in full; and (d) Wilderness Helicopters was in default under the Lease Agreement if it failed to pay Rent within ten (10) days after its due date. |
What were the “implied terms” of the Lease Agreement? |
| 10. William Day thereafter agreed to extend the Lease Term to permit Wilderness Helicopters continued use of the Helicopter so that it could attempt to generate revenue and agreed to extend credit and/or delay payment of the outstanding Rent of $315,958.02 inclusive of HST. | How the plaintiff “agreed to extend” the Lease Term to permit Wilderness continued use of the Helicopter: (i) What was the date of the extension? (ii) To what date was the Lease Term extended? (iii) What were the alleged payments to enable the Lease Term to be extended? |
| 12. As such, in or about the fall of 2017, William Day sold the Helicopter to a third party and in or about the same time, made demands of Wilderness Helicopters to pay the outstanding Rent. | (i) To provide particulars regarding the sale of the “Helicopter”? (ii) What is the identity of the “third party”? (iii) Who bought the “Helicopter”? (iv) What individual for the third party was involved? (v) What was the date of the sale? (vi) What price was the Helicopter sold? What were the terms and conditions of this sale? (vii) Who received the monies from the sale of the Helicopter? Was a new agreement or arrangement entered into with the “third party” or anyone else to rent, or lease, the Helicopter? (viii) to provide particulars of the demands made of Wilderness Helicopters to pay the alleged outstanding Rent: (i) Who made the demands? (ii) What were the dates of the demands? (iii) How many demands were made? and (iv) If the demands were made in writing, to produce them? |
[15] Rule 25.10 of the Rules of Civil Procedure provides as follows:
25.10 Where a party demands particulars of an allegation in the pleading of an opposite party, and the opposite party fails to supply them within seven days, the court may order particulars to be delivered within a specified time.
[16] Full particulars of certain pleadings are required in accordance with rule 25.06(8) of the Rules of Civil Procedure. Wilderness Helicopters does not argue that the pleadings at issue fall within rule 25.06(8).
[17] As stated by Justice Perell in Watson v. TrojanOne Ltd., 2016 ONSC 2740, [2016] O.J. No. 2146 (S.C.J.) at paras. 13, 14 and 16:
An order for particulars is a discretionary order, and the court must be satisfied that the order is just in the circumstances of each case: Fairbairn v. Sage (1925), 1925 403 (ON CA), 56 O.L.R. 462 at 471 (C.A.). Particulars for pleadings are normally ordered only if: (a) they are not within the knowledge of the party demanding them; and (b) they are necessary to enable the other party to plead his or her response: Fairbairn v. Sage, supra; Physicians’ Services Inc. v. Cass, 1971 359 (ON CA), [1971] 2 O.R. 626 (C.A.).
In exercising their discretion to order particulars, the focus is on the parties’ ability to plead a response and the court takes a realistic and pragmatic approach that recognizes that not every claim is capable of being pleaded with the same degree of particularity and that subsequent stages in the litigation may clarify and narrow issues: Ontario v. Rothmans Inc., 2016 ONSC 59 at para. 84.
A motion for particulars usually will not be granted unless the moving party deposes that the particulars are not within his or her knowledge and that they are needed to plead; however, a supporting affidavit is not required if the allegations are so general and bald that it is clear that particulars of them are necessary: Steiner v. Lindzon (1976), 1976 760 (ON SC), 14 O.R. (2d) 122 (H.C.J.); Ontario v. Rothmans Inc., supra.
[18] With respect to the particulars of the implied terms of the Lease Agreement referred to in paragraph 5 of the statement of claim, as set out in the letter from counsel for William Day dated February 12, 2018, the alternative plea of implied terms refers to the items particularized in paragraphs 5(a) to (d) of the statement of claim. As confirmed by counsel for William Day on the motion, there are no other implied terms. The particulars have been provided.
[19] With respect to the particulars of paragraph 10 of the statement of claim, as noted above, copies of two Lease Extensions have been provided.
[20] With respect to the particulars of paragraph 12 of the statement of claim, I have ordered the production for inspection of the demands if made in writing (see para. 10 above).
[21] With respect to the balance of particulars of paragraph 12 of the statement of claim, it is the position of Wilderness Helicopters that the particulars are needed to plead a defence of set off (see affidavit of Blair Mills at para. 48). Blair Mills also deposes that he does not have any information on the sale of the Helicopter (see affidavit of Blair Mills at para. 47). I am satisfied that Wilderness Helicopters is entitled to particulars of the date of the sale and the price for which the Helicopter was sold in order to plead a set off defence. I am also satisfied that these particulars are not within the knowledge of Wilderness Helicopters.
[22] In my view the balance of the particulars sought are requests for evidence in support of material facts of an allegation in the statement of claim and are matters for discovery and not a proper demand for particulars and are not necessary to plead a defence.
[23] Any documents that have been ordered to be produced for inspection and any particulars that have been ordered shall be provided within 10 days of today’s date.
[24] The time to deliver a statement of defence is extended to 30 days from today’s date.
[25] With respect to costs of the motion, there was some success on the part of Wilderness Helicopters. William Day was also successful in opposing the inspection of the majority of the documents requested and particulars sought. Each party shall bear their own costs in all the circumstances of this motion.
[26] Summary of order granted:
- If the demands referred to in paragraph 12 of the statement of claim were made in writing, the demands shall be produced for inspection within 10 days of today’s date;
- Particulars of the date of sale and price for which the Helicopter was sold shall be provided within 10 days of today’s date;
- The time to deliver a statement of defence is extended to 30 days from today’s date; and,
- There shall be no costs of this motion.
Master B. McAfee
Date: May 7, 2018