Court File and Parties

Court File No.: CV-18-133996 (Newmarket) Motion Heard: 2018-05-03

Superior Court of Justice - Ontario

Re: Duron Ontario Ltd. v. Cladit Siding Solutions Inc.

Before: Master R.A. Muir

Counsel:

• Stephanie Garraway, for the defendant
• Jonathan Frustaglio, for the plaintiff

Supplementary Reasons for Decision

[1] On May 3, 2018 I heard a motion brought by the defendant pursuant to Rules 19.03 and 25.10 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The defendant sought an order setting aside its noting in default and an order that the plaintiff provide particulars of certain allegations found in various paragraphs of its statement of claim.

[2] The plaintiff brought a cross-motion at the same time for an order striking the defendant’s supporting affidavit, or at least some of its paragraphs, and striking the demand for particulars.

[3] I released my reasons for decision on June 22, 2018. I made an order setting aside the noting in default (which the plaintiff ultimately did not oppose) and I ordered that a few of the requested particulars be provided. Overall, I viewed the statement of claim as “largely sufficient”.

[4] I also requested written costs submissions. I have now received and considered those submissions.

[5] Both sides seek costs. The defendant argues that it was improper for the plaintiff to have noted the defendant in default and submits that the defendant had some success on the particulars motion. The defendant also points to an offer to settle that provided that the noting in default be set aside, the particulars provided and costs be paid by the plaintiff.

[6] The plaintiff submits that it was largely successful on the particulars issue. It also served an offer to settle which provided that the noting in default would be set aside, and the particulars motion withdrawn on a without costs basis.

[7] In my view, it is fair and reasonable that there be no order for the costs of these motions.

[8] First, it was inappropriate for the plaintiff to have noted the defendant in default when it did. The defendant was represented by counsel who was communicating with the lawyer for the plaintiff (not Mr. Frustaglio). The plaintiff was fully aware of the defendant’s intention to defend this action and to bring a motion for particulars. On February 17, 2018, the defendant’s lawyer sent an email to the plaintiff’s lawyer which clearly sets out this position. The plaintiff’s lawyer did not respond to that email. Instead, the plaintiff noted the defendant in default on February 22, 2018. In my view, the defendant should not have been noted in default in such circumstances. Having done so, the plaintiff should have immediately consented to setting aside the noting in default without conditions. The defendant is entitled to its costs of the motion to set aside the noting in default.

[9] Second, the plaintiff was largely successful on the particulars motion. As I stated in my reasons “[i]n my view, the statement of claim is largely sufficient and very few further particulars are required”. The plaintiff is entitled to its costs of the particulars motion.

[10] I am not prepared to give any weight to the offers to settle. The defendant’s offer to settle required the plaintiff to answer all particulars and pay $4,000.00 in costs. The defendant did not achieve a result as favourable as its offer to settle. The plaintiff’s offer to settle the noting in default portion of the defendant’s motion was conditional on the defendant withdrawing the particulars motion. As stated above, the plaintiff should have immediately consented to setting aside the noting in default without conditions.

[11] I have therefore concluded that it is fair and reasonable that there be no order for the costs of these motions.

Released: 2018-07-26 Master R. A. Muir