Court File and Parties

Court File No.: CV-16-553068 Motion Heard: 2018-08-23 Reasons Released: 2018-12-27 Superior Court of Justice – Ontario

Between: TADIEM INC., Plaintiff/Defendant by Counterclaim

And: ALLIED PROPERTIES MANAGEMENT LP, ALLIED PROPERTIES REAL ESTATE INVESTMENT TRUST, 1413882 ONTARIO LIMITED and 1301553 ONTARIO LIMITED, Defendants/Plaintiffs by Counterclaim

Before: Master D. E. Short

Counsel: Lucas Lung, Fax: 416-601-4198 -counsel for the Plaintiff/Defendant by Counterclaim Vedran Simkic, Fax: 416-863-1515 -counsel for the Defendants/Plaintiffs by Counterclaim

Reasons on Motion to Add Third Parties

I. Background

[1] This is not your garden variety landlord and tenant dispute. The Plaintiff’s original action seeks an accounting of charges paid over a lengthy lease term.

[2] The present motion is brought by the plaintiff/defendant by counterclaim, Tadiem Inc. under Rule 29.02(1.2) of the Rules of Civil Procedure, for an order granting Tadiem leave to issue a third party claim for contribution and indemnity against the Canadian Broadcasting Corporation (the "CBC") and CBRE Limited ("CBRE").

[3] This Third Party Claim is “purportedly related” to the fresh as amended statement of defence and counterclaim, dated December 1, 2017 (the "Allied Claim"), of the defendants/plaintiffs by counterclaim, Allied Properties Management LP, Allied Properties Real Estate Investment Trust 1413882 Ontario Limited (the “Wellington Street Landlord”) and 1301553 Ontario Limited (the “King Street Landlord”) (together, “Allied”).

[4] The Wellington Street Landlord and King Street Landlord, are nominee corporations of Allied REIT and the respective landlords of Tadiem, with regard to two commercial premises located in Toronto (the "Premises").

[5] Tadiem is an Ontario corporation and the tenant of the Wellington Street Landlord and the former tenant of the King Street Landlord, pursuant to two leases (the "Leases").

II. Overview

[6] On May 19, 2016, Tadiem brought a claim against the Wellington Street Landlord and the King Street Landlord for damages for breach of contract in the total amount of $1,700,000 and a further claim against Allied, in the further amount of $1,700,000 for negligent misrepresentation ("Tadiem's Claim").

[7] Tadiem's Claim is related to allegations of improper invoicing and charges under the Leases. A significant portion of the allegations in connection with which Tadiem seemingly seeks damages are from the years 2006, 2007, 2008, 2009, 2010, 2011, 2012, 2013 and 2014. Allied has denied the allegations and has pled that these claims are statute-barred.

[8] At around the time that Tadiem commenced this claim, it had sub-leased the Premises and was no longer a tenant of Allied. Tadiem began leasing space from CBC with whom Allied has a significant business relationship.

[9] In the main action, Tadiem seeks damages and other relief in connection with two commercial tenancies in which Tadiem was the tenant. Tadiem alleges that, while it was a tenant of Allied, it was overcharged various amounts purportedly for "additional rent" and/or "recoveries".

[10] Allied has asserted a counterclaim in the main action, seeking damages in the amount of $3,000,000 and other related relief. In its counterclaim, Allied alleges, inter alia, that Tadiem intentionally interfered with its economic relations by making disparaging, untrue and false statements about Allied (the "Alleged Statements") to CBC and CBRE during negotiations in April 2015 over the terms of a commercial lease between CBC, as landlord, and Tadiem, as tenant ("CBC-Tadiem Lease"). CBRE was CBC's commercial real estate broker in those negotiations.

[11] The Landlord denies any miscalculation and as well asserts that many of such claims are, in any event, statute barred.

[12] However, the Landlord has also counterclaimed for defamation of the corporate entities forming part of Allied Properties.

[13] Allied first asserted its counterclaim in May 2017, but the counterclaim was found not to have been properly pleaded and was eventually struck out, pursuant to an order of Justice Cavanagh, dated November 3, 2017. He granted Allied leave to deliver an amended pleading. The current iteration of the counterclaim - which is contained in a Fresh as Amended Statement of Defence and Counterclaim - was served on December 1, 2017.

[14] On February 14, 2018, after demanding and receiving particulars of allegations in Allied's Fresh as Amended Statement of Defence and Counterclaim, Tadiem served a Fresh as Amended Reply and Defence to Counterclaim. Since that time, no further steps have been taken in the main action. The parties have yet to discuss and agree on the terms of a discovery plan for the main action.

[15] Thus this motion is being brought over eight months after the Allied Claim was commenced and well over a year after Allied commenced the initial counterclaim.

[16] Allied submits that the “Purported Third Party Claim” is fatally flawed as it does not disclose a reasonable cause of action.

[17] The Purported Third Party Claim is for contribution and indemnity against the CBC and CBRE, which is based on claims by Tadiem for: (i) breach of contract against CBC; and (ii) for intentional interference with economic relations against CBRE.

[18] Allied submits that here is no factual basis in the Purported Third Party Claim (assuming the allegations to be true) to establish joint liability for contribution by CBC and/or CBRE with respect to Tadiem's “disparaging, untrue and false statements regarding Allied (i.e. it is not alleged that CBC or CBRE somehow made, forced or coerced Tadiem to make such statements regarding Allied). Allied argues that Third Party Claim “is simply a stand-alone action.”

[19] Thus the Allied factum asserts:

“In summary, the Purported Third Party Claim is nothing more than a transparent attempt by Tadiem to create discord between Allied and CBC and/or CBRE (with both of which it has significant business relationships). As the Purported Third Party Claim has nothing to do with Allied, it should be disputed as between Tadiem and/or CBC and/or CBRE by way of a separate stand-alone action.”

[20] I note at the outset that, somewhat surprisingly, neither proposed Third Party participated in this motion. It is therefore somewhat odd that the motion to amend was only opposed by the Plaintiff by Counterclaim and not the parties sought to be added.

[21] As well, I observe that the norm is for a third party usually to be added by a defendant in most actions, nevertheless a party added by a plaintiff (which is a defendant to a counterclaim) is still referred to as a “Third party”.

III. Leasing Activity Overview

[22] Tadiem obtained an order granting it leave to issue a third party claim for contribution and indemnity against the CBC and CBRE Limited. The evidence before me was that Allied Properties Management LP was the lessor of a number of properties in downtown Toronto, including properties in the CBC Building at 250 Front Street West.

[23] At all material times, CBRE was the commercial real estate broker for the CBC. CBRE was also concurrently a commercial real estate broker for Allied.

[24] Both Tadiem and a company related to Allied currently are tenants of the CBC in the CBC building. This action arises out of a lease dated April 10, 2015, whereby CBC leased to Tadiem certain space in the CBC building.

[25] The terms of the lease were negotiated by CBC and Tadiem in or around April 2015. Both CBC and Tadiem were represented by commercial real estate brokers who were present for the negotiations.

[26] The lease negotiations between CBC and Tadiem were highly confidential and commercially sensitive. The CBC-Tadiem Lease contained a term prohibiting the disclosure of non-public information disclosed during the course of the negotiations. In particular, Section 17.27 of the CBC-Tadiem Lease provided as follows:

“Subject to the provisions of the Access to Information Act …, both parties shall ensure that non-public information owned by the other party, and disclosed to a party in any manner in the course of the negotiation of the Lease, and/or contained within the Lease, shall remain confidential and not be disclosed to any third party, save and except for its solicitors, advisors or agents or others for the purposes of interpreting or carrying out obligations under the Lease or assessing the value of this Lease, and unless required by law in the case of voluntary disclosure. The party which discloses the information to a third party shall remain responsible for any breach of this confidentiality provision or privacy provision by such third party. This present provision shall remain in effect after the expiration of this Lease and for three (3) years henceforth.” [my emphasis]

[27] In the main action, Allied has asserted a counterclaim against Tadiem for the intentional interference with economic relations, alleging, inter alia, that in or around April 2015, during Tadiem’s negotiation with the CBC, representatives of Tadiem or its agent made “disparaging, untrue and false statements” regarding Allied to employees of CBC and others in the commercial leasing industry.

[28] In particular, it is asserted in the claim against Tadiem, that it has made statements that described Allied “as the worst landlord to deal with” and in effect asserted that Allied could not be trusted.

[29] According to its response to a demand for particulars, Allied discovered these Alleged Statements through “representatives of CBC”.

IV. Tadiem Theory of Case

[30] In its Fresh as Amended Reply and Defence to Counterclaim, Tadiem denies all of the allegations in Allied’s counterclaim concerning such alleged defamation. In particular, Tadiem denies that any of the “Alleged Statements” were made, either during its lease negotiations with CBC or at any other time. The allegations in this now proposed Third Party Claim are “strictly in the alternative to the defences pleaded” by Tadiem in its Fresh as Amended Reply and Defence to Counterclaim.

[31] While Tadiem denies all of the allegations in the Allied counterclaim, there is still the possibility that the company could be adjudged liable in the main action for damages resulting from the alleged statements. Those would be with respect to information which Allied asserts were disclosed to Allied by representatives of the CBC.

[32] Tadiem asserts that it is contingently entitled to seek “contribution and indemnity” from the third parties as, “but for their allegedly providing to Allied the information, which gave rise to the counterclaim, there would be no counterclaim.”

[33] Tadiem asserts that if there is a finding of liability against it, the CBC ought to be found liable to Tadiem for breach of Section 17.27 of the CBC-Tadiem Lease.

[34] Tadiem’s Third Party Claim specifically asserts:

11. In those circumstances, CBC is liable to Tadiem for breach of the CBC-Tadiem Lease. Section 17.27 of the CBC-Tadiem Lease prohibited the disclosure of any non-public information disclosed during the lease negotiations. The disclosure of the Alleged Statements to Allied, either by CBC or by its agent CBRE, for which CBC is liable, constitutes a breach of section 17.27 of the CBC-Tadiem Lease by CBC.

[35] The issue on this motion is whether Tadiem ought to be granted leave to issue the Third Party Claim, over the objections of Allied, at this point in time.

V. Timing of Third Party Claim

[36] Rule 29.02 provides in part:

29.02 (1) A third party claim (Form 29A) shall be issued within 10 days after the defendant delivers a statement of defence, or at any time before the defendant is noted in default.

(1.2) A third party claim may be issued at any time with the plaintiff’s consent or with leave, which the court shall grant unless the plaintiff would be prejudiced thereby.

[37] As noted above, the reference in the rule to the defendant in this case, is in fact, the plaintiff, qua defendant by counterclaim.

[38] Allied asserts that Tadiem failed to commence the Purported Third Party Claim within the 10 day period. Instead, it seeks to do so, over a year later since the initial counterclaim by Allied was commenced and over eight months after the Allied Claim was commenced.

[39] The Court must evaluate all relevant circumstances and factors in its analysis of prejudice.

[40] Justice Chapnik carefully considered these issues on an appeal from one of my colleagues in Medeiros v. Dilworth, 2002 ONSC 49431, 2002 CarswellOnt 1147, [2002] O.J. No. 1406, 114 A.C.W.S. (3d) 46, 22 C.P.C. (5th) 145, 59 O.R. (3d) 136. There she observed:

14 First, this is a matter that is vital to the final disposition of the action. The defendant is not relieved of responsibility if his tortious act materially contributed to the overall condition of the plaintiff. Where, however, the plaintiff's injuries are attributable to multiple tortfeasors, defendants must seek contribution or indemnity from one another pursuant to the Negligence Act, R.S.O. 1990, c. N.1. Alderson v. Callaghan, 1998 ONCA 895, 1998 CarswellOnt 2189 (Ont. C.A.). The fact that the defendant can commence a separate action for this purpose does not diminish the importance of the issue.

15 Second, the prejudice contemplated in rule 29.02(1.2) belies more than inconvenience and the additional work which flows inevitably when a third party is added. The court must evaluate all relevant circumstances and factors to determine whether any delay will unduly prejudice the plaintiff. See Gotaverken Energy Systems Ltd. v. Canadian Great Lakes Casualty & Surety Co., 1985 CarswellOnt 584 (Ont. Master); and Ontario Mortgage Corp. v. Dubinsky, 1999 CarswellOnt 1495 (Ont. Gen. Div.).

[41] In considering whether to extend the time for a third or subsequent party claim, the court should apply a test similar to Rule 21.01 (1)(b), namely:

a) material facts pleaded are taken to have be proven; b) novelty of the cause of action is not of any importance; c) the claim be read generously to accommodate any drafting deficiencies; and d) the claim is allowed to proceed if it has any possibility of success.

Tate Andale Canada Ltd. v DiClemente (1994), 36 C.P.C. (3d) 351 at 365 (Ont. Master); affirmed (1995), 36 C.P.C. (3d) 351 (Ont. Gen. Div.),

VI. Contribution and Indemnity

[42] In part, my decision turns on the meaning of each of “contribution” and “indemnity”.

[43] Black’s Law Dictionary provides, in part, these definitions for contribution and indemnity:

Contribution. 1. The right that gives one of several persons who are liable on a common debt the ability to recover proportionately from each of the others when that one person discharges the debt for the benefit of all; the right to demand that another who is jointly responsible for a third party’s injury supply part of what is required to compensate the third party. – Also termed right of contribution. …

2. One tortfeasor’s right to collect from joint tortfeasors when – and to the extent that – the tortfeasor has paid more than his or her proportionate share to the injured party, the shares being determined as percentages of causal fault.

Indemnity. 1. A duty to make good any loss, damage, or liability incurred by another. 2. The right of an injured party to claim reimbursement for its loss, damage, or liability from a person who has such a duty. 3. Reimbursement or compensation for loss, damage, or liability in tort; esp., the right of a party who is secondarily liable to recover from the party who is primarily liable for reimbursement of expenditures paid to a third party for injuries resulting from a violation of a common-law duty. [my emphasis]

[44] While many claims for contribution or indemnity arise from matters involving negligence to which the Negligence Act would apply, my reading of the entitlement to bring a claim for contribution or indemnity is not dependent on a finding of negligence.

[45] In any event, I believe it is not a precondition for an order permitting a third party to proceed that a determination of a negligent act be made, at this stage.

VII. Elements of Proposed Third Party Claims of Tadiem

[46] In the proposed third party claim, Tadiem seeks contribution and indemnity from CBC and CBRE for any amounts it may be adjudged liable to pay Allied as a result of Allied's counterclaim in the main action. The allegations in the third party claim can be summarized in part as follows:

(a) Pursuant the CBC-Tadiem Lease, dated April 10, 2015, CBC leased to Tadiem certain office space in a building located at 250 Front Street West, Toronto. (f) Allied has disclosed that it discovered the Alleged Statements from "representatives of CBC". (g) If CBC (or CBRE, as CBC's agent) disclosed the Alleged Statements to Allied, CBC is liable to Tadiem for breach of the confidentiality clause in the CBC-Tadiem Lease. (h) If CBRE disclosed the Alleged Statements to Allied, CBRE is liable to Tadiem for intentional interference with economic relations. CBRE's disclosure of the Alleged Statements to Allied constituted an unlawful act that is actionable by CBC against CBRE for negligence and for breach of fiduciary duty. By disclosing the Alleged Statements, CBRE disclosed confidential information it learned as a result of its retainer by CBC, and preferred the interests of one client, Allied, over the interests and at the expense of another client, CBC. (i) CBRE intended to cause harm to Tadiem: CBRE disclosed the Alleged Statements to Allied for the express purpose of assisting Allied with its counterclaim against Tadiem.

[47] Third party claims are governed by Rule 29 of the Rules of Civil Procedure ("Rules"). Rule 29.01 sets out the circumstances in which a third party claim may be commenced against a person who is not already a party to the action:

29.01 A defendant may commence a third party claim against any person who is not a party to the action and who,

(a) is or may be liable to the defendant for all or part of the plaintiff's claim; (b) is or may be liable to the defendant for an independent claim for damages or other relief arising out of, (i) a transaction or occurrence or series of transactions or occurrences involved in the main action, or (ii) a related transaction or occurrence or series of transactions or occurrences; or (c) should be bound by the determination of an issue arising between the plaintiff and the defendant.

[48] Rule 29.02 prescribes when a third party claim may be issued. Rule 29.02 reads, in relevant part:

29.02 (1) A third party claim (Form 29A) shall be issued within 10 days after the defendant delivers a statement of defence, or at any time before the defendant is noted in default.

(1.1) A third party claim may be issued within 10 days after the plaintiff delivers a reply in the main action to the defendant's statement of defence.

(1.2) A third party claim may be issued at any time with the plaintiff's consent or with leave, which the court shall grant unless the plaintiff would be prejudiced thereby.

[49] The language in Rule 29.02(1.2) is mandatory. The Court “shall” grant leave unless the plaintiff would be prejudiced.

[50] Rule 29.09 expands on the issue of prejudice. It provides:

29.09 A plaintiff is not to be prejudiced or unnecessarily delayed by reason of a third party claim, and on motion by the plaintiff the court may make such order or impose such terms, including an order that the third party claim proceed as a separate action, as are necessary to prevent prejudice or delay where that may be done without injustice to the defendant or the third party.

[51] For the purposes of Rule 29.02(1.2), “prejudice” contemplates something more than the additional inconvenience and work involved when a third party is added. The prejudice alleged must be substantial enough to outweigh any concerns regarding the potential of multiple proceedings.

[52] In Ferrara v. Marchese, 2017 ONSC 2214, Justice Fairburn held:

[16] Despite the ten-day rule, a third party claim may issue "at any time" provided the plaintiff consents or the court grants leave: rule 29.02(1.2). For purposes of the leave requirement, it “shall” be granted unless the plaintiff would suffer prejudice. Prejudice is defined as something more than simply inconvenience to or added work for the opposing party: Pickering Harbour Co. v. Barton, 2006 ONSC 37135, [2006] O.J. No. 4394 (Sup. Ct.), at para. 14.

[53] While delay may be a reason why a plaintiff is prejudiced by the late issuance of a third party claim, there must be evidence demonstrating that the delay caused prejudice to the plaintiff such that the third party claim should not issue. Where nothing in the record suggests that the delay has or will cause prejudice to the plaintiff, there is no need for the party seeking leave to provide any explanation for the delay. [see Transpharm Canada Inc. v. MS Partners LLP, 2018 ONSC 375 at para. 16.]

[54] In deciding whether to grant leave to issue a third party claim, the Court may consider the tenability of the proposed third party claim. However, the threshold for establishing tenability is very low and akin to the test applicable in motions to strike.

VIII. Allied’s Submissions

[55] A number of arguments were made on Allied’s behalf, but I was not convinced that the moving party’s motion ought to be denied.

[56] In particular I considered this extract from their factum:

39. The Allied Claim is for the tort of intentional interference with economic relations. At common law, there is no right to contribution from joint tortfeasors - the sole authority for this remedy in Ontario is section 1 of the Negligence Act (the “Act”), which reads (emphasis added):

40. Where damages have been caused or contributed to by the fault or neglect of two or more persons, the court shall determine the degree in which each of such persons is at fault or negligent, and, where two or more persons are found at fault or negligent, they are jointly and severally liable to the person suffering loss or damage for such fault or negligence, but as between themselves, in the absence of any contract express or implied, each is liable to make contribution and indemnify each other in the degree in which they are respectively found to be at fault or negligent.

O'Neil v. Van Horne, 2002 ONCA 41072, 158 O.A.C. 188, … at para. 5

42. The right to contribution and indemnity between tortfeasors is in the nature of a restitutionary claim to prevent unjust enrichment. The right to contribution and indemnity provides for fairness between the tortfeasors by allowing them to spread the damages in according with their share of liability.

Toronto Hydro v. Gonte and City of Toronto, 2018 ONSC 4315 … at para. 39

[57] The law with respect to “non-concurrent Tortfeasors is also addressed:

47. The Ontario Court of Appeal has made it clear on numerous occasions that there cannot be claims for contribution and indemnity between non-concurrent tortfeasors. As stated by the Honorable Justice Carthy:

… but the subsequent wrongdoers are no more jointly responsible for the full damages flowing after their acts than they would be for the plaintiff’s damages, if any, suffered before they committed torts. They are each answerable for their individual conduct but not for that of others.

That is why the wrongdoers must be acting concurrently to attract the application of s.1 the Negligence Act. And that is why s. 1 has no application to this case and why the third party notices should not issue.

O'Neil v. Van Horne, 2002 ONCA 41072, 158 O.A.C. 188, …, at paras. 10 -11

48. Only concurrent tortfeasors can seek contribution and indemnity from other tortfeasors. As held by the Honourable Justice Rouleau:

In summary, the Negligence Act makes concurrent tortfeasors, that is persons whose conduct causes a single loss to another, jointly and severally liable. It also provides for the right of concurrent tortfeasors to claim contribution and indemnity from another tortfeasor provided the tortfeasor from whom he or she seeks contribution is, or could be if sued, liable to the plaintiff.

Lawson v. Viersen, 2012 ONCA 25, at para. 35

[58] I, however, am not satisfied that a claim must fall under the provisions of the Negligence Act to be valid. Similar issues were recently addressed by my colleague Master P.T. Sugunasiri in Transpharm Canada Inc. v. MS Partners LLP, 2018 ONSC 375.

[59] In particular I adopt these portions of her reasons:

Analysis:

[14] Rule 29.02(1.2) of the Rules of Civil Procedure states the following:

A third party claim may be issued at any time with the plaintiffs consent or with leave, which the court shall grant unless the plaintiff would be prejudiced thereby.

[15] Much like Rule 26 which addressed amendments to pleadings, relief under this rule is granted as of right unless there is prejudice. ….

[16] Delay can also be a reason why a plaintiff is prejudiced by a late issuance of a third party claim. In the present case, Transpharm argues that there has been no explanation for the delay in bringing the third party claim. In my view, the issue ought to be framed different: Has MS's delay caused prejudice to Transpharm such that the TPC should not issue? In short, no. There is nothing in the record to suggest that delay has impacted, or will impact Transpharm at all. In my view, there is no need for MS to explain the delay unless there is evidence, as Transpharm asserts, of an abuse of process for tactical advantage. I see no basis to make any such findings on the thin record before me.

[17] Even in the absence of prejudice, the Court may look at the tenability of the third party action to determine if leave should be granted (see for example Ureten Consulting Inc. v. Banasinki, 2009 ONSC 63129 (Master Short)). Rule 1.04 calls for the most just, and expeditious resolution of a proceeding. As in the case of Rule 26, there is little utility in allowing a third party claim that is devoid of merit and would likely be subject to a Rule 21 motion to strike.

[18] The threshold for establishing tenability is, however, very low and akin to the test for motions to strike. I would not allow a third party claim that has no possibility of success. Transpharm argues that the proposed third party claim has no possibility of success because of the amendment to the pleading, limiting liability.

[19] In my view, the principles of apportionment and liability that arise in a negligence context is different than a contractual indemnity. In the former, a claim for damages can be narrowed such that it is only negligence solely attributable to the defendant that is recoverable (as in Taylor). This flows in part from the principle of apportionment found in section 1 of the Negligence Act and negligence law generally as it applies to joint tortfeasors (see Taylor at paras. 13-22).

[20] A contractual indemnity does not arise from the Negligence Act. It arises from a bargain made between parties. MS relies on both forms of indemnity in its proposed TPC. It will be for the trier of fact to determine the veracity of the contractual indemnity and its interpretation and application to the case at bar. For the time being, I am not prepared to conclude that the third party claim is redundant, untenable or has no possibility of success.

[60] Similarly in the present case I find my views to be in accord with the submissions made on behalf of Tadiem, these include:

24. Second, forcing Tadiem to pursue its claims against CBC and CBRE in a separate action would result in an unnecessary multiplicity of proceedings and a substantial risk of inconsistent findings of fact. The third party claim and Allied's counterclaim raise common issues of fact, including the circumstances surrounding Tadiem's lease negotiations with CBC, and, more critically, whether and to what extent Tadiem made any of the Alleged Statements. The same witnesses will be called to testify on the same issues in connection with the proposed third party claim and Allied's counterclaim. Given the potential for inconsistent findings of fact, it is important that the issues raised in the proposed third party claim be determined in a related third party proceeding and not in a separate action.

25. Third, if CBC or CBRE takes the position that the alleged statements were never made by Tadiem - or in other words, there is no merit to Allied's counterclaim - it is only in the context of a third party claim that CBC or CBRE would have an opportunity to defend the counterclaim in the main action.

26. Fourth, it cannot be said that the proposed claims are untenable….

27. The claim against CBC is for breach of contract and has been properly pleaded. Tadiem pleads that the lease contained a confidentiality clause prohibiting the disclosure to third parties of any non-public information that was disclosed during the course of lease negotiations. Tadiem pleads that disclosure to Allied of the Alleged Statements by CBC or CBRE (for which CBC is legally liable) was a breach of the CBC¬Tadiem Lease.

28. The claim against CBRE is for intentional interference with economic relations. All of the elements of that tort have been pleaded. In particular, Tadiem pleads that CBRE's disclosure of the Alleged Statements to Allied was an unlawful act that is actionable against by CBC against CBRE, or would have been actionable had CBC suffered damages. The disclosure was negligent because it exposed CBC to a claim by Tadiem for breach of the CBC-Tadiem Lease. The disclosure was also a breach of the fiduciary duties that CBRE owed to CBC: by disclosing confidential information it learned as a result of its retainer by CBC, it preferred the interests of one client, Allied, over the interests of another client, CBC. Tadiem pleads that CBRE intended to cause it harm. Tadiem pleads that CBRE disclosed the Alleged Statements to Allied for the express purpose of assisting Allied with its counterclaim against Tadiem.

[61] As well I agree that the third party claim would not unduly lengthen the trial of the main action. The third party claim and the counterclaim raise almost the exact same factual issues. The only additional issues relate to the scope of the confidentiality clause in the lease between CBC and Tadiem, and whether CBC and/or CBRE are liable to Tadiem for the disclosure of the alleged statements to Allied. In any event, if it later turns out that the third party claim likely will unduly lengthen the trial in the main action, Allied can seek relief under Rule 29.09.

[62] In my view Tadiem should not be required to commence a separate action against CBC and CBRE. The subject matter of the claims against CBC and CBRE is appropriate for a third party claim. Given that the third party claim and Allied's counterclaim arise out of the same incidents and raise the same factual issues, there is a substantial risk that multiple proceedings will result in inconsistent findings of fact; the same witnesses will be called to testify on the same issues in both proceedings. A consideration of all of the relevant factors, including proportionality, strongly favours granting Tadiem leave to assert its claims against CBC and CBRE in a third party action.

IX. Conclusion

[63] The proposed third party claim arises out of the same incidents as the counterclaim. In the counterclaim, Allied alleges that Tadiem made disparaging and defamatory statements about Allied to CBC, and CBC's agent, CBRE, during negotiations over the terms of a commercial lease between CBC and Tadiem. According to Allied, it was informed about the alleged statements by "representatives of - CBC". In the third party claim, Tadiem seeks contribution and indemnity from CBC and CBRE on the basis that they improperly disclosed the alleged statements to Allied. The lease between CBC and Tadiem contained a confidentiality clause that required CBC and CBRE to not disclose to any third parties any non-public information that was disclosed during lease negotiations.

[64] Given the overlapping factual issues, there is no question that the same witnesses will be called to testify on the same issues in both proceedings. Forcing Tadiem to commence a separate action against CBC and CBRE would result in a substantial risk of inconsistent findings of fact between the two proceedings.

[65] Granting leave to issue a third party claim would not cause undue prejudice to Allied. In the main action, pleadings only closed in late February 2018. Since that time, no steps have been taken in the main action. In fact, the parties have yet to discuss and agree on the terms of a discovery plan for the main action.

[66] A consideration of the relevant factors leads to only one conclusion. The Court should grant Tadiem leave to issue the proposed third party claim against CBC and CBRE.

X. Order

[67] For these reasons, I allow the motion and grant leave to the Plaintiff, Tadiem Inc. to have its proposed Third Party Claim against the CBC and CBRE, issued.

[68] In the circumstances, unless there were offers made which might impact on my award, I am awarding costs of this motion on a partial indemnity basis payable to the plaintiff by the Defendants within 45 days.

[69] The parties are encouraged to agree on the quantum of costs. If no agreement is reached, Plaintiff’s counsel shall issue their cost submissions by January 15. Responding submissions on costs by Defendants’ counsel shall be made within 15 days of receiving the Respondent’s cost submissions. All cost submissions must include a Costs Outline, should be no longer than five pages in length and should be consolidated by plaintiff’s counsel and forwarded as a single package to my Assistant Trial Co-ordinator.

[70] If no costs submissions are received by February 15, costs will be presumed to have been resolved by the parties.

Released: December 27, 2018

Master D. E. Short

R. 241/DS