COURT FILE NO.: CV-18-590285 DATE: 20181123 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N :

EUROPRO (KITCHENER) LIMITED PARTNERSHIP, BY ITS GENERAL PARTNER, EUROPRO (KITCHENER) GP INC. Plaintiff (Responding Party) – and – DREAM OFFICE REAL ESTATE INVESTMENT TRUST, DUNDEAL CANADA LIMITED PARTNERSHIP, DUNDEE REALEX HOLDINGS LIMITED PARTNERSHIP, DUNDEAL CANADA (GP) INC., REALEX (GALLERIA) INC., REALEX (20 SPETZ) INC., DREAM OFFICE LP, DREAM OFFICE (GP) INC., A.W. (BILL) DAVIS, PETER SENST, JAYSEN SMALLEY AND CBRE LIMITED Defendants (Moving Parties)

Shaun Laubman and Hilary Book for the Plaintiff (Responding Party) Mark Gelowitz and Geoffrey Grove for the Defendants (Moving Parties) Dream Office Real Estate Investment Trust HEARD: July 17, 2018

FAVREAU J. :

Introduction

[1] The defendant Dream Office Real Estate Investment Trust ("Dream REIT") seeks to strike the claim made against it by the plaintiff Europro (Kitchener) Limited Partnership, by its general partner, Europro (Kitchener) GP Inc. ("Europro").

[2] Dream REIT argues that the plaintiff's claim improperly lumps Dream REIT with the other defendants in this case, without distinguishing between the allegations specifically made against Dream REIT and the allegations made against other defendants. In addition, Dream REIT argues that the claim it faces does not disclose claims for breach of contract, negligent and intentional misrepresentation, negligence or unjust enrichment.

[3] Europro argues that Dream REIT is taking an overly technical approach to the matter, and that each cause of action asserted against Dream REIT pleads the necessary elements and is pleaded in a way that allows Dream REIT to understand and defend the claim.

[4] For the reasons that follow, the motion is dismissed. Europro has confirmed that it is not pursuing a claim for breach of contract against Dream REIT. Otherwise, I am satisfied that the claim discloses claims for negligent misrepresentation, intentional misrepresentation, negligence and unjust enrichment against Dream REIT. While the allegations against Dream REIT are grouped together with allegations against a number of other defendants, they are sufficiently pleaded for Dream REIT to understand the case it is to meet and to defend the action.

Factual background

[5] Europro's statement of claim was issued on January 18, 2018.

[6] Besides naming Dream REIT, the claim names seven other entities which are described as holding companies through which Dream REIT is alleged to have previously owned a portfolio of properties in the Kitchener/Waterloo area. The defendants alleged to be holding companies are:

a. Dundeal Canada Limited Partnership; b. Dundee Realex Holdings Limited Pertnership; c. Dundeal Canada (GP) Inc.; d. Realex (Galleria) Inc.; e. Realex (20) Spetz Inc.; f. Dream Officer LP; and g. Dream Office (GP) Inc.

(Collectively, I will refer to Dream REIT and these holding companies as the "Dream defendants".)

[7] Besides the Dream defendants, the claim also names CBRE Limited ("CBRE"), which is a real estate brokerage firm, and three individual sales representatives employed by CBRE.

[8] Europro's claim arises from the purchase of eight commercial properties in 2016, including the Galleria office complex located at 101 Frederick Street and 40 Weber Street East in Kitchener, Ontario ("Galleria complex").

[9] Specifically, Europro alleges that the Dream defendants, CBRE and CBRE's agents made misrepresentations to Europro leading up to the sale of the Galleria complex in relation to one of the tenants. Europro claims that MCAP Service Corporation ("MCAP"), a major tenant in the Galleria complex, notified Europro soon after the closing of the transaction that it intended to vacate the property at the end of its lease. Europro alleges that the Dream defendants knew or ought to have known that MCAP intended to vacate the premises prior to the closing of the transaction, and that they negligently or intentionally failed to advise Europro of MCAP's intention to terminate its lease.

[10] The allegations against CBRE Limited and the individual defendants are that they acted as agents for Dream on the transaction, and that they too knew about MCAP's intention to vacate the premises and that they too failed to notify Europro. It is further alleged that, given that CBRE and its agents represented MCAP, they were in a conflict of interest in representing the Dream defendants on the transactions.

[11] Paragraph 3 of the statement of claim describes Dream REIT and the other Dream defendants as follows:

The Defendant Dream Office Real Estate Investment Trust ("Dream REIT") is an investment trust whose units trade on the Toronto Stock Exchange. Through the Defendants other than CBRE and the Individual Agents as defined below and certain holding companies (together with Dream REIT, "Dream"), Dream REIT owned 100% of the Portfolio, a collection of commercial real estate assets in Kitchener described below.

[12] Following paragraph 3, Dream REIT is never mentioned specifically. Rather, all allegations are made against "Dream", against CBRE and its agents, or against the defendants generally.

[13] All of the defendants, except for Dream REIT, have defended the action. The Dream defendants, with the exception of Dream REIT, are collectively defended in one statement of defence. All Dream defendants, including Dream REIT, are represented by the same counsel.

[14] Following service of the statement of defence and after the initiation of this motion, Europro served a reply to the defence, which, amongst other matters, includes a statement that Dream REIT was the beneficial owner of the properties purchased by Europro.

[15] Besides the pleadings, on the motion the parties made reference to a number of documents that are referred to in the pleadings, including agreements of purchase of sale and various other documents relevant to the transactions between the parties. From the agreements of purchase and sale, it is evident that Dream REIT was not the purchaser of the Galleria complex or any of the other properties purchased by Europro.

Test on a motion to strike

[16] Dream REIT brings the motion pursuant to Rules 21.01(b), 25.06(1), 25.06(8) and 25.11 of the Rules of Civil Procedure.

[17] Rule 21.01(1)(b) of the Rules of Civil Procedure provides that "a party may move before a judge […] to strike out a pleading on the ground that it discloses no reasonable cause of action".

[18] The test on a motion brought to strike a claim pursuant to Rule 21.01(1)(b) is whether, assuming the facts pleaded are true, it is plain and obvious that the pleading discloses no cause of action or that the claim has no reasonable prospect of success: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, at para. 17.

[19] The courts have recognized, for example in Aristocrat Restaurants Ltd. (cob Toney's East) v. Ontario), [2003] O.J. No. 5331 (Sup. Ct.), at paras. 18-19, and in McCreight v. Canada (Attorney General), 2012 ONSC 1983, [2012] O.J. No. 1996 (Sup. Ct.), at para. 24, that a pleading may be deficient in one of two ways for the purpose of Rule 21.01(1)(b):

a. The allegations do not give rise to a recognized cause of action; or b. The claim fails to plead the necessary legal elements of an otherwise recognized cause of action.

[20] A claim should not be struck because it is novel or because the defendant has a strong defence. If there is any uncertainty, the claim should be allowed to stand: Odhavji Estate v. Woodhouse, 2003 SCC 69, at para. 15.

[21] On a motion to strike, the facts as pleaded are to be taken as true unless they patently ridiculous or incapable of proof, and the Court should read the pleading generously making allowances for deficiencies: Transamerica Life Canada Inc. v. ING Canada Inc., [2003] O.J. No. 4656 (Sup. Ct.), at para. 38. In considering the motion, no evidence is admissible: R. v. Imperial Tobacco Canada Ltd., at para. 23. However, documents referred to in the pleading that form an integral part of the pleading can be relied upon in considering whether a claim discloses a cause of action: Re Collections Inc. v. Toronto-Dominion Bank, 2010 ONSC 6560 (Sup. Ct.), at para. 107.

[22] In R. v. Imperial Tobacco Canada Ltd., at paras. 19-20, the Supreme Court of Canada noted that, in appropriate cases, motions to strike can serve an important gatekeeping function:

19 The power to strike out claims that have no reasonable prospect of success is a valuable housekeeping measure essential to effective and fair litigation. It unclutters the proceedings, weeding out the hopeless claims and ensuring that those that have some chance of success go on to trial.

20 This promotes two goods -- efficiency in the conduct of the litigation and correct results. Striking out claims that have no reasonable prospect of success promotes litigation efficiency, reducing time and cost. The litigants can focus on serious claims, without devoting days and sometimes weeks of evidence and argument to claims that are in any event hopeless. The same applies to judges and juries, whose attention is focused where it should be -- on claims that have a reasonable chance of success. The efficiency gained by weeding out unmeritorious claims in turn contributes to better justice. The more the evidence and arguments are trained on the real issues, the more likely it is that the trial process will successfully come to grips with the parties' respective positions on those issues and the merits of the case.

[23] Rule 25.06(1) of the Rules of Civil Procedure provides as follows:

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.

[24] Rule 25.06(8) provides as follows:

Where fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading shall contain full particulars, but knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred.

[25] Rule 25.11 provides as follows:

The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,

(a) may prejudice or delay the fair trial of the action; (b) is scandalous, frivolous or vexatious; or (c) is an abuse of the process of the court.

Analysis

[26] Dream REIT argues that the statement of claim improperly lumps the allegations made against it with the allegations made against the other Dream defendants. Dream REIT further argues that the claim it faces does not disclose a cause of action in contract, negligent misrepresentation, intentional misrepresentation, negligence or unjust enrichment.

[27] Europro concedes that it does not have a claim against Dream REIT for breach of contract because the relevant agreement of purchase and sale was not between Dream REIT and Europro. However, Europro maintains that it has not improperly lumped Dream REIT with the other Dream defendants, and that it has valid causes of action against Dream REIT in negligent and intentional misrepresentation, negligence and unjust enrichment.

[28] Accordingly, the issues to be decided on the motion are as follows:

a. Does the claim improperly "lump" together Dream REIT with the group of Dream corporate defendants? b. Does the claim disclose a cause of action against Dream REIT for negligent and/or intentional misrepresentation? c. Does the claim disclose a cause of action against Dream REIT in negligence? d. Does the claim disclose a cause of action against Dream REIT for unjust enrichment?

Issue 1 - Are the Dream defendants improperly lumped together?

[29] Dream REIT argues that the statement of claim improperly lumps this defendant with the seven other Dream defendants, making it impossible to ascertain what Dream REIT is alleged to have done. In making this argument, Dream REIT points out that it cannot be liable for the actions of the other Dream companies because it is a separate corporate entity.

[30] In advancing this position, Dream REIT relies on a number of decisions in which the courts have cautioned against lumping defendants together without regard to the distinct activities and corporate identities of each party: see, for example, Lana International Ltd. v. Menasco Aerospace Ltd., [1996] O.J. No. 1448 (Gen. Div.), at para. 25, Hughes v. Sunbeam, [2000] O.J. No. 4595 (Sup. Ct.), at paras. 43 to 49, and Martin v. Astrazeneca Pharmaceuticals PLC, 2012 ONSC 2744 (Sup. Ct.), at paras. 117 to 128.

[31] In response, Europro argues that there is nothing wrong with grouping the allegations against the Dream defendants together in this case, because they are each, including Dream REIT, alleged to have participated in the activities giving rise to Europro's claim.

[32] In my view, while there are a number of cases in which the courts have warned against lumping defendants together, this is not a standalone basis for dismissing Europro's claim against Dream REIT. It is not helpful to approach the issue from the general perspective that the Dream defendants have been improperly lumped together. Looking at the case law, it is clear that there are circumstances where lumping corporate defendants together is problematic whereas there are other circumstances where it is appropriate.

[33] For example, Dream REIT relies on the decision in Martin v. Astrazeneca Pharmaceuticals, at paras. 117 to 128, where this Court found that a pleading against a group of related companies was deficient because it failed to identify the specific acts or omissions of each corporate defendant and it failed to set out the material facts that would justify piercing the corporate veil. In that case, the plaintiff alleged negligence against a manufacturer and its parent and related companies without distinguishing what each defendant had allegedly done wrong.

[34] However, in Jevco Insurance Co. v. Pacific Assessment Centre Inc., 2014 ONSC 2244 (Sup. Ct.), at para. 59, this Court rejected an argument that it is always improper to make allegations against defendants as a group:

59 The pleadings principle that it is improper to lump the defendants together must be applied in a way that respects the underlying principle that the pleading must disclose to each individual defendant the case being made against them. Thus, in a given case, it may not be inappropriate to group the defendants. In my opinion, in the case at bar, the approach of Jevco of grouping the Defendants while not eloquent was adequate.

[35] Similarly, in Lysko v. Bradley, [2006] O.J. No. 1137 (C.A.), at paras. 32 to 34, in the context of a claim for negligent misrepresentation, the Court of Appeal cautioned against an overly technical approach to the issue of whether defendants were improperly "lumped together":

32 The motions judge found the statement of claim deficient as against Braley, MacDonald, Campbell and Ellard because it did not specify who made the representations and because the appellant pleaded that the Search Committee "included" these four persons and thus it was possible that the committee included other individuals. The motions judge relied upon Lana International, supra, and particularly for the statement at p. 351 of that case that, "It is not sufficient to simply lump a number of the defendants together in one paragraph of the pleading and say that they all made material misrepresentations and innuendos."

33 It is important to identify the nature of the representations made in order to decide whether the motions judge properly applied this statement from Lana International. In short, the allegation is that the Search Committee misrepresented the financial state of the League and, in particular, the size of annual distributions to its member football clubs. The appellant has identified the date (October 17, 2000) and place (Sheraton Airport Hotel in Toronto) where the representations were made. He identifies the individuals with whom he met, not only Braley, MacDonald, Campbell and Ellard, but named senior executives from tmp Worldwide, described in the statement of claim as the CFL's agent. The appellant states that the Search Committee, whose membership he has identified, made the impugned representations. This statement must be taken as true, that is that all members of the committee made the representations. If, as alleged by the appellant in this case, all of the members of the Search Committee at the meeting made the representations, it is not improper to place them together in the same paragraph.

34 The motions judge erred in principle in applying a highly technical approach to this part of the pleading, especially to the use of the word "included". First, if there were other members of the Search Committee, they are not alleged to have been at the meeting. The appellant has identified the members of the Search Committee at the October 17, 2000, meeting and they are the only individuals sued for negligent misrepresentation. Second, in my view, the pleading is reasonably open to the interpretation that by using the word "included" the appellant was in fact describing the entire membership of the Search Committee. Finally, if there is a defect, the remedy is not to strike out the plea but merely to require an amendment or the delivery of particulars, provided the pleading otherwise discloses a reasonable cause of action. That was the remedy adopted by Greer J. in Lana International, supra.

[36] Accordingly, rather than approaching the issue from the perspective of whether the plaintiff has improperly lumped the Dream defendants together, in my view, it is more helpful to focus on each of the causes of action asserted against Dream REIT to determine whether the claim as pleaded discloses the cause of action asserted against Dream REIT and whether it allows Dream REIT to understand the case made against it.

[37] Therefore, I would not strike the claim against Dream REIT simply on the basis that it is improperly lumped together with the other Dream companies. In this respect, it is notable that all of the other Dream defendants have defended the claim. If the issue was really just that Dream REIT was improperly lumped with the other defendants, then presumably the other Dream defendants would have had difficulty defending the claim too.

Issue 2 -- Does the claim disclose a cause of action against Dream REIT for negligent and/or intentional misrepresentation?

[38] As set out in Queen v. Cognos Inc., [1993] S.C.J. No. 3, at para. 33, the elements of negligent misrepresentation are as follows:

a. the existence of a duty of care owed to a plaintiff based on a "special relationship"; b. an untrue, inaccurate or misleading representation by a defendant; c. negligence on the part of the defendant in making the representation; d. reasonable reliance on the misrepresentation by the plaintiff; and e. that the reliance caused damage to the plaintiff.

[39] As summarized in Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, at para. 21, the elements of intentional misrepresentation are as follows:

a. that the defendant made a false representation; b. that the defendant knew that the representation was false; c. that the false representation caused the plaintiff to act; and d. that the false representation caused a loss to the plaintiff.

[40] In both cases, as referred to above, Rule 25.06(8) of the Rules of Civil Procedure requires that the pleading of misrepresentation contain "full particulars".

[41] As held in Balanyk v. University of Toronto, [1999] O.J. No. 2162, at para. 65, in order to fulfill this pleading requirement, the plaintiff must, at a minimum, identify:

a. the specific representations allegedly made by the defendant; b. when, where, how, by whom and to whom the representation was made; and c. the falsity of the representation.

[42] In this case, Dream REIT's counsel does not dispute that claims of negligent and intentional misrepresentation have been sufficiently pleaded again the other Dream defendants. Indeed, as indicated above, they have defended the claim. Rather, Dream REIT argues that the pleading of misrepresentation directed at Dream REIT does not identify the specific misrepresentations made by Dream REIT, or when, where, how and to whom Dream REIT made the representations.

[43] As reviewed above, the Court of Appeal has rejected an overly technical approach to the assessment of whether a claim for misrepresentation has been sufficiently pleaded. Depending on the specific allegations of misrepresentation, it is not necessary in all cases to parse out each defendant; in some cases, it may be appropriate to plead that a group of defendants made misrepresentations together.

[44] In this case, the statement of claim identifies the misrepresentations allegedly made, which include the following:

a. CBRE allegedly prepared a Confidential Information Memorandum on behalf of Dream and with Dream's knowledge. The Confidential Information Memorandum indicated that there was at 75% chance MCAP would renew its lease in the Galleria complex, at a time when CBRE and Dream knew or should have known that MCAP did not intend to renew its lease; and b. During the course of negotiations, Europro claims to have repeatedly inquired of Dream if the information provided was accurate and that it was reassured that there were "no issues Europro needed to be aware about the Portfolio". The claim specifies that these representations were made by Alexandra Khazzam, Dream's Director of Investments.

[45] As in Jevco, it is plausible that the misrepresentations were made by each or on behalf of each of the Dream defendants, and the pleadings stage is not the time to decide that Europro cannot advance such a claim.

[46] Drilling down, Dream REIT's complaint appears to be directed at the plausibility of Europro's claim of misrepresentation. More specifically, Dream REIT seems to suggest that it could not have made the alleged misrepresentations because it was not the owner or seller of the properties in the portfolio and, in particular, it was not a party to the sale of the Galleria complex.

[47] In my view, this argument is somewhat of a non sequitur. The fact that Dream REIT was not a party to the contract does not mean that it could not be implicated in making misrepresentations. Notably, the statement of claim pleads that Dream assigned the sale of the Galleria Complex to the defendant Dream Office LP on the day before the scheduled closing, making clear that negotiations were not directly or uniquely with Dream Office LP up to the time of closing. In addition, CBRE and its agents were not parties to the agreements of purchase and sale, and yet Europro has put forward a claim of misrepresentation against these defendants. There is certainly no requirement for an underlying contractual relationship to sustain a claim of negligent or intentional misrepresentation.

[48] In response to the motion, Europro argues in part that the documents referred to in the pleading support its specific claim against Dream REIT. For example, the Confidential Information Memorandum opens up with the following statement:

Dream Office REIT ("Dream" or the "Vendor"), Canada's largest publicly traded office REIT, has retained the TD Securities Inc. and CBRE Limited (collectively the "Advisors") to act as exclusive advisors on the sale of 100% ownership interest in the Kitchener/ Waterloo Portfolio…

[49] Europro argues that this statement and similar statements support its position that it was Dream REIT that made the misrepresentations at issue. Dream REIT disputes that it made the representations, arguing that the language used in the Memorandum identifying the vendor as Dream REIT is the type of language used in promotional materials and that it cannot be used as the basis for a finding that Dream REIT had any involvement in making the alleged misrepresentations.

[50] In my view, this is not the type of issue to be resolved on a motion to strike. It may turn out that Dream REIT is able to successfully defend the action on the basis that it did not make the representations at issue. However, this is a factual determination to be made based on a proper evidentiary record.

[51] I am satisfied that the statement of claim, in combination with the documents incorporated by reference sufficiently set out what Dream REIT is alleged to have misrepresented and to whom the alleged misrepresentations were made.

[52] Dream REIT is able to plead to these allegations, and it will be open to Dream REIT in its defence to deny that it made any of the alleged misrepresentations and to otherwise fully respond to the claims of misrepresentation.

Issue 3 -- Does the claim disclose a cause of action against Dream REIT in negligence?

[53] Dream REIT argues that Europro's negligence is a repetition of its claim for negligent misrepresentation, and that it does not disclose a cause of action on the same basis as it argues the claim does not disclose a cause of action in negligent misrepresentation against Dream REIT.

[54] In response Europro argues that its claim in negligence against Dream REIT is based on its claim against CBRE, which acted as Dream REIT's agent. Specifically, Europro points out that it has pled that Dream is liable for the actions of its agents, and it makes a number of specific allegations of negligence against CBRE which include:

a. CBRE failed to disclose that it had accepted an engagement from MCAP that would undermine the value of the properties Europro was purchasing; b. CBRE failed to make sufficient inquiries to ensure that the information in the Confidential Information memorandum was accurate and complete; c. CBRE failed to disclose its knowledge of matters material to the acquisition of the portfolio of properties in the Confidential Information Memorandum, including the fact that MCAP intended to vacate the Galleria complex; and d. Europro failed to have policies and procedures in place to ensure that information in its possession about the properties in the portfolio would be disclosed in the Confidential Information Memorandum.

[55] In advancing these claims, Europro relies on the common law principle that a principal can be liable for the negligence of its agents, as long as the agents are acting within the scope of their authority: General Electric Capital Canada Inc. v. Deloitte & Touche LLP, [2002] O.J. No. 4638 (Sup. Ct.), at para. 28.

[56] In my view, Europro has sufficiently pleaded that CBRE acted as an agent for the Dream defendants, including Dream REIT. In describing CBRE's role, the statement of claim states that "CBRE was Dream's agent for the purpose of selling the Portfolio" and, throughout the claim, Europro pleads that CBRE did what it did in relation to the sale of the properties as Dream's agent.

[57] Accordingly, I am satisfied that the claim discloses a cause of action in negligence against Dream REIT.

Issue 4 -- Does the claim disclose a cause of action against Dream REIT for unjust enrichment?

[58] The claim pleads that:

The Defendants have been unjustly enriched at Europro's expense as a result of the higher purchase price paid to Dream and the commission received by CBRE and the Individual Agents from the sale of the Portfolio. Europro has suffered a corresponding deprivation. There is no juristic reason for the Defendants' unjust enrichment.

[59] Dream REIT argues that there is no valid claim for unjust enrichment against it because Dream REIT was not a party to the agreement of purchase and sale for the Galleria complex.

[60] After being served with the statement of defence on behalf of all the other Dream defendants and a few days in advance of the argument of the motion, Europro served a reply to the statement of defence of the Dream defendants in which Europro pleads that Dream REIT is the beneficial owner of all of the properties in the portfolio.

[61] On the motion, Europro argued that, given the pleading that Dream REIT is the beneficial owner of the properties, the claim for unjust enrichment must stand.

[62] As set out in Apotex Inc. v. Eli Lilly and Co., 2015 ONCA 305, at para. 20, in order to succeed on a claim for unjust enrichment, the plaintiff must demonstrate that:

a. Dream REIT has been enriched; b. Europro has suffered a corresponding deprivation; and c. the absence of a juristic reason for the enrichment.

[63] The contentious point on this issue is whether Europro can maintain a claim that Dream REIT was enriched, given that it was not a party to the sale. As reviewed above, there is no dispute that Dream REIT was not a party to the sale of the Galleria complex in the agreement of purchase and sale. Therefore, any financial benefit to Dream REIT would have to flow from its legal relationship with the Dream company that sold the Galleria complex to Europro, namely Dream Office LP.

[64] In the absence of anything beyond an allegation that Dream REIT benefitted financially from the sale of the Galleria complex and the other properties in the portfolio, I agree with Dream REIT that the plaintiff's claim would amount to an attempt to improperly pierce the corporate veil.

[65] However, there is more to Europro's claim for unjust enrichment. As reviewed above, paragraph 3 of the claim pleads that Dream REIT owned 100% of the properties in the portfolio "through" the other Dream defendants. At paragraph 42 of the claim, Europro pleads that "Dream" assigned the agreement of purchase and sale for the sale of the Galleria complex to Dream Office LP, an event that allegedly occurred the day before the sale. As mentioned above, in its reply, Europro pleads that Dream REIT is the beneficial owner of the properties. Again as mentioned above, the Confidential Information Memorandum describes Dream REIT as the "vendor".

[66] The issue of whether Dream Office LP owned the Galleria complex in trust or for the benefit of Dream REIT is a factual issue. Ultimately, this may be a difficult claim for Europro to prove at trial, but it should not be precluded from pursuing this claim at the pleading stage.

[67] Dream REIT suggests that it is improper for Europro to have bootstrapped its claim for unjust enrichment by making reference to Dream REIT's alleged beneficial ownership in its reply. I note that this is not a motion to strike the reply. In any event, as referred to above, the pleading of beneficial ownership is not the only basis on which I have found that the claim for unjust enrichment is sufficiently pleaded and, in any event, if there is any basis for the complaint about the reply, this is a defect that could easily be fixed with an amendment to the claim.

[68] Accordingly, I am satisfied that the claim for unjust enrichment discloses a cause of action against Dream REIT.

Conclusion

[69] For the reasons above, the motion to strike the claim against Dream REIT is dismissed.

[70] Dream REIT is to deliver its statement of defence within 20 days of the release of these reasons.

[71] The parties have agreed that the successful party on the motion is to be entitled to costs in the amount of $15,000, inclusive of disbursements. Accordingly, I award costs in the amount of $15,000 all inclusive.

FAVREAU J. RELEASED: November 23, 2018