Court File and Parties

Court File No.: 17-73292A1 Date: 2019-02-27 Ontario Superior Court of Justice

Between: WESTEINDE (FNP) INC., Plaintiff Counsel for Plaintiff: James Lawrence MacGillivray (not in attendance)

– and –

RE/MAX CORE REALITY INC., Defendant Counsel for Defendant: Martin Z. Black

– and –

RE/MAX ONTARIO-ATLANTIC CANADA INC. o/a RE/MAX INTEGRA, Third Party Counsel for Third Party: Aislinn Reid

Heard: Written submissions Subject: Supplementary reasons re costs

Before: Aitken J.

Nature of Proceedings

[1] Following its partial success on a motion under rr. 21.01(1)(b) and 29.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for an order striking out, without leave to amend, the claims in an Amended Third Party Claim, the Third Party is seeking costs in the amount of $16,620.49 on a partial indemnity basis. The Defendant takes the position that the motion was unnecessary and that the Third Party’s introduction of a new issue in its factum, on the eve of the hearing, was unreasonable. The Defendant seeks costs in the amount of $5,000 all in.

Divided Success

[2] The Third Party brought a motion to strike most of an Amended Third Party Claim, without leave to amend. The Defendant consented to one of the Third Party’s five discrete claims to strike. The Third Party was completely successful in regard to another of its claims to strike. The Third Party was unsuccessful in regard to another of its claims to strike. In regard to the remaining two claims to strike, the Third Party was successful in getting the claims struck but was unsuccessful in its request that no leave to amend be granted.

Nature of the Pleading

[3] The Amended Third Party Claim was not beautifully drafted and left a lot to be desired. More specifically, it failed to tie the claims for breaches of the common law and statutory duties of fair dealing, to act honestly, to act in accordance with reasonable commercial standards, and to act in good faith, to specific terms in the contract in question - the Franchise Agreement between the Defendant and the Third Party.

[4] That being said, the Third Party could glean a clear understanding of the nature of the Defendant’s claim from the Amended Third Party Claim. Any necessary clarification in regard to the claims just mentioned could have been obtained through an appropriate Demand for Particulars in order to obtain the material facts on which the Defendant was relying to advance these claims.

[5] The Third Party did serve a Demand for Particulars; however, that Demand was not properly drafted. In essence, it was a demand for evidence, akin to a form of written discovery.

Unreasonable Behaviour

[6] There was unreasonable behavior on the part of both the Defendant and the Third Party.

[7] The Defendant should have made an effort to provide more particulars to the Third Party prior to the return of the motion and should have advised well in advance of the motion that it was consenting to striking its claim for damages for unfair and discriminatory business practices.

[8] The Third Party should have served a properly drafted Demand for Particulars. As well, if it objected to that section of the Defendant’s Amended Third Party Claim dealing with disciplinary proceedings, it should have raised that objection in its original Notice of Motion or in an Amended Notice of Motion. It should not have waited until days prior to the motion date to raise this issue for the first time in its factum.

Disposition

[9] Considering the divided success and the unreasonable conduct on the part of both parties, no costs shall be payable by either party.

AITKEN J. Date of Release: February 27, 2019

COURT FILE NO.: 17-73292A1 DATE: 2019-02-27 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: WESTEINDE (FNP) INC. – and – RE/MAX CORE REALTY INC. – and – RE/MAX ONTARIO-ATLANTIC CANADA INC. o/a RE/MAX INTEGRA

SUPPLEMENTARY REASONS RE COSTS Aitken J. Date of Release: February 27, 2019