COURT FILE NO.: CV-16-564251
MOTION HEARD: 20180129
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Envirochill Cryogen Development Corporation, Plaintiff
AND:
University of Ontario Institute of Technology and Professor Ibrahim Dincer, Defendants
BEFORE: Master Jolley
COUNSEL: Joyce Tam, Counsel for the Moving Party Defendants
P. Bradley Limpert, Counsel for the Responding Party Plaintiff
HEARD: 29 January 2018
REASONS FOR DECISION
[1] The defendants move to strike certain paragraphs of the plaintiff’s fresh as amended statement of claim on the basis of non-compliance with Rule 25.06(1) and Rule 25.06(7).
Preliminary Issue
[2] Unbeknownst to the defendants, the plaintiff had noted each of them in default some time before this motion was brought. While there were discussions about the motion and the language in the pleading, the plaintiff never advised the defendants that they had been noted in default.
[3] A defendant who has been noted in default may not take any step other than setting aside the noting in default without leave of the court or the consent of the plaintiff (Rule 19.02(1)(b)). At the outset of the hearing, the plaintiff consented to setting aside the noting in default of the defendants and the motion proceeded on that basis.
Motion to Strike
[4] Rule 25.06(1) provides:
25.06(1) 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.
[5] Rule 25.06(7) provides:
25.06(7) The effect of a document or the purport of a conversation, if material, shall be pleaded as briefly as possible, but the precise words of the document or conversation need not be pleaded unless those words are themselves material.
[6] While there is sometimes a fine distinction between a material fact and the evidence required to prove that fact, the defendants allege that the plaintiff has pleaded subordinate facts that tend toward proving the truth of a material fact rather than the material fact itself.
[7] I note the following dicta from Justice Perell in Jacobson v. Skurka 2015 ONSC 1699:
Rule 25.06(1) draws a distinction between the “material facts” and “the evidence by which those facts are to be proved”. A material fact may itself be relevant evidence and particulars of material facts may also be relevant evidence, so the distinction drawn in the rule is not a litmus test clear differentiation, but the essence of the directive of rule 25.06 is clear enough that a pleading is not the place for a party to lead relevant evidence and to present argument to prove his claim or defence. (para 43)
A pleading should not describe the evidence that will prove a material fact; pleadings of evidence may be struck out …. What the prohibition against pleading evidence is designed to do is to restrain the pleading of facts that are subordinate and that merely tend toward proving the truth of the material facts. (para 44)
[8] In this claim the plaintiff alleges that it hired the defendants to develop technology for a self-cooling beverage can. It pleads that it relied on Professor Dincer’s expertise in the field to design a product that was safe and environmentally friendly. Professor Dincer recommended that the plaintiff proceed to use ammonia in its product. It later discovered, and alleges that Professor Dincer knew all along or should have known, that ammonia was unsafe and unsuitable for use in self-cooling beverage cans.
(a) First Grouping – Paragraphs 4 to 6 of the amended statement of claim – Evidence of Professor Dincer’s qualifications
[9] Paragraph 3 of the amended statement of claim sets out that Professor Dincer is a Professor in the Department of Automotive, Mechanical and Manufacturing Engineering, Faculty of Engineering at University of Ontario Institute of Technology (“UOIT”). The defendants state that that this a sufficient description of Professor Dincer’s qualifications and the subsequent three paragraphs outlining his various awards in mechanical engineering, the specific courses he taught and his editorial positions with various publications are not material facts as they are only supportive of the fact that Professor Dincer is an engineering professor at UOIT.
[10] The plaintiff argues that the facts pleaded in paragraphs 4, 5, and 6 are material to its claim that it reasonably relied on Professor Dincer and its pleading that it “went with whatever Professor Dincer thought was the best option” (paragraph 9).
[11] I find paragraphs 4, 5 and 6 do not offend Rule 25.06(1). I do not read them as added for the purpose of supporting that Professor Dincer is an engineering professor at UOIT. They are pleaded as material to the plaintiff’s position that it relied on the fact that Professor Dincer was an expert and that its reliance on Professor Dincer’s expertise was reasonable.
(b) Second Grouping – Paragraphs 16a-22 of the amended statement of claim – Evidence of Professor Dincer’s writings
[12] These paragraphs set out in detail the fellowships that Professor Dincer has held and the awards he has received, the books he has authored, the topics on which he has written, including those relevant to the project for which the plaintiff retained him and those relevant to the properties of ammonia.
[13] These paragraphs are the evidence by which the plaintiff intends to prove its claim that Professor Dincer was negligent or breached his contract with the plaintiff in recommending the use of ammonia for the plaintiff’s product. The paragraphs go well beyond materials facts and are hereby struck with leave to amend.
(c) Third Grouping – Paragraphs 26 and 27 of the amended statement of claim – Evidence of correspondence between the parties
[14] Paragraph 26 pleads the content and context of a conversation between the plaintiff and Professor Dincer about the use of ammonia and purports to set out the exact dialogue of that conversation, including the example of a situation that was discussed. While the purport of the conversation is material, the spoken words themselves are not. The pleading should be set out the purport of the conversation, which was the discussion of safety concerns relating to ammonia, rather than the recitation of the conversation as has been pleaded. The paragraph is struck with leave to amend.
[15] Paragraph 27 pleads evidence, namely the detailed contents of an email from the plaintiff to Professor Dincer shortly after the conversation pleaded in paragraph 26 took place. Rather than pleading that it complained, the plaintiff leads evidence to support its assertion that it complained. The paragraph is struck with leave to amend to plead the material facts, rather than the evidence the plaintiff intends to lead to prove the material facts.
[16] The pleading should not be meaningless without these inclusions, as suggested by the plaintiff, as it has leave to amend to include the material facts and the purport of the conversation and email.
Order
[17] On consent, the noting in default of the defendants is hereby set aside.
[18] Paragraphs 16a-22 inclusive and paragraphs 26 and 27 are struck with leave to amend.
[19] The defendants shall, within two weeks of receipt of the amended amended statement of claim, serve either their statement of defence or any further pleadings motion restricted to the new amendments.
[20] The defendants were successful on 2/3 of their motion and shall have a commensurate costs award on a party and party scale in the amount of $2,400 inclusive of HST and disbursements.
Master Jolley
Date: 31 January 2018