minicounsel

citation: "Barrel Works Guelph Ltd. v. Marasse, 2019 ONSC 2293" parties: "Barrel Works Guelph Ltd., Plaintiff - and – Richard Marasse and Yanling Du, carrying on business as Royal Gold Jewellery & Precious Metals, Richard Marasse and Yanling Du, Defendants" party_moving: "Richard Marasse and Yanling Du" party_responding: "Barrel Works Guelph Ltd." court: "Superior Court of Justice" court_abbreviation: "ONSC" jurisdiction: "Ontario" case_type: "motion" date_judgement: "2019-04-11" date_heard: "2019-04-02" applicant:

"Richard Marasse"
"Yanling Du" applicant_counsel: "Self-represented" respondent:
"Barrel Works Guelph Ltd." respondent_counsel:
"Clarke L. Melville" judge: "Fragomeni" summary: > The defendants brought a multi-faceted motion seeking re-examination for discovery, striking the plaintiff's claim for perjury, non-disclosure, intimidation, and abuse of process, permission to lay criminal information, leave to amend their counterclaim for punitive damages based on perjury, intimidation, and abuse of process, and declarations of contempt of court against the plaintiff and its representatives. The court dismissed all aspects of the defendants' motion, finding that issues of perjury and witness credibility were for trial, that there is no civil cause of action for perjury, that the court lacked jurisdiction to permit laying criminal information, and that the proposed amendments to the counterclaim lacked legal tenability or sufficient particulars. The court also found no exceptional circumstances for a further examination for discovery. interesting_citations_summary: > This decision reinforces key principles regarding civil procedure and the limits of a motion judge's authority. It highlights that allegations of perjury do not constitute a civil cause of action, citing Admassu v. Macri, and that such matters are typically for criminal prosecution. It also clarifies that the tort of intimidation requires more than asserting a contractual right, referencing Central Canada Potash Co. v. Saskatchewan. Furthermore, the case applies the principles for amending pleadings under Rule 26.01, emphasizing the need for a tenable and prima facie meritorious claim, as discussed in Windsor Raceway Inc. v. Ontario Lottery and Gaming Corp. and Marks v. Ottawa (City), and the requirement for proper particulars. final_judgement: > The defendants' motion for re-examination for discovery, to strike the plaintiff's claim, for an order permitting the laying of criminal information, for leave to amend their counter-claim to add punitive damages, and for an order declaring Katharine and Thomas Lammer in contempt of court, were all dismissed. winning_degree_applicant: 5 winning_degree_respondent: 1 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2019 decision_number: 2293 file_number: "15-337" source: "https://www.canlii.org/en/on/onsc/doc/2019/2019onsc2293/2019onsc2293.html" keywords:
Motion
Perjury
Intimidation
Abuse of Process
Amendment of Pleadings
Rules of Civil Procedure
Counterclaim
Contempt of Court
Examination for Discovery areas_of_law:
Civil Procedure
Civil Litigation
Criminal Law cited_cases: legislation:
- title: "Criminal Code, R.S.C. 1985, c. C-46" url: "https://laws-lois.justice.gc.ca/eng/acts/c-46/"
- title: "Rules of Civil Procedure, R.R.O. 1990, Reg. 194" url: "https://www.ontario.ca/laws/regulation/900194" case_law:
- title: "Admassu v. Macri, 2010 ONCA 99" url: "https://www.minicounsel.ca/oca/2010/99"
- title: "Central Canada Potash Co. v. Saskatchewan" url: "https://www.canlii.org/en/sk/skca/doc/1978/1978canlii190/1978canlii190.html"
- title: "Windsor Raceway Inc. v. Ontario Lottery and Gaming Corp., 2014 ONSC 4076" url: "https://www.minicounsel.ca/scj/2014/4076"
- title: "Norman v. Soule" url: "https://www.canlii.org/en/bc/bcsc/doc/1991/1991canlii2009/1991canlii2009.html"
- title: "Marks v. Ottawa (City), 2011 ONCA 248" url: "https://www.minicounsel.ca/oca/2011/248"

Court File and Parties

COURT FILE NO.: 15-337 DATE: 20190411

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Barrel Works Guelph Ltd., Plaintiff - and – Richard Marasse and Yanling Du, carrying on business as Royal Gold Jewellery & Precious Metals, Richard Marasse and Yanling Du, Defendants

BEFORE: FRAGOMENI J.

COUNSEL: Clarke L. Melville, for the Plaintiff Richard Marasse in person, for the Defendants

HEARD: April 2, 2019

ENDORSEMENT

1This motion was heard by me on April 2, 2019. The action is scheduled for a pre-trial on April 18, 2019. The action is then scheduled for the Assignment Court on April 29, 2019 for the trial sittings commencing May 13, 2019.

2Approximately one and a half months before this matter is scheduled for trial, the defendants proceed with a motion for the following relief, as set out in their Notice of Motion:

An order that the Corporate Plaintiff represented by Thomas Lammer, re-attend at its own expense and including all costs to the defendants, a Re-Examination for Discovery.
An order striking out the Plaintiff’s Claim for: i) committing acts of Perjury; ii) failing to disclose pertinent information; iii) attempting to prevent our witness from disclosing pertinent facts of this case through an act of intimidation; iv) Abuse of Process as described in Rule 21.01 (3) (d) in the Rules of Civil Procedure.
An order permitting the laying of a Criminal Information against Barrel Works Guelph Ltd., Thomas Lammer and Katharine Lammer for: a. committing acts of perjury contrary to Criminal Code s. 131; b. for obstructing justice by their attempts to dissuade a witness from giving evidence contrary to Criminal Code s. 139; c. Intimidation of a justice system participant contrary to Criminal Code s.423.1 (1) (b); d. such further and other acts against the Criminal Code as the defendants may advise and is justified by the conduct brought to light by this motion.
Leave permitting the Defendants to add to their Counter Claim for Punitive Damages in the amount of $14,000,000.00 for each count of Perjury the Honourable Court deems the Plaintiff to have committed during the full course of this proceeding.
Leave permitting the Defendants to add to their Counter Claim for Punitive Damages in the amount of $14,000,000.00 for each count of Intimidating a Witness this court deems the Plaintiff to have committed during the full course of this proceeding.
Leave permitting the Defendants to add to their Counter Claim for Punitive Damages, $4,000,000.00 for Abuse of Process.
An order declaring Katharine Lammer and the Plaintiff in Contempt of Court for Lying in Katharine Lammer’s sworn affidavit dated September 11, 2016.
An order declaring Thomas Lammer and the Plaintiff in Contempt of Court for lying during Examination for discovery.
An order declaring the Plaintiff and Thomas Lammer in Contempt of Court for lying in the Undertakings they provided.
An order declaring the Plaintiff and Thomas Lammer and Katharine Lammer in Contempt of Court for not disclosing pertinent information.
An order declaring the Plaintiff and Katharine Lammer in Contempt of Court for attempting to intimidate and interfere with a Witness in this proceeding.
An order that the Plaintiff pay the costs of this Motion on a full indemnity scale.
Such further and other relief as this Honourable Court deems just.

3At paragraph 33 of the factum the defendants identify the following issues that need to be determined by the court at this motion:

a) Whether the Plaintiff committed acts of Perjury? b) Whether there is a reasonable concern of Perjury being committed by the Plaintiff? c) Did Thomas Lammer and/or Katharine Lammer commit acts of Perjury? d) Is there reasonable concern that Thomas Lammer and/or Katharine Lammer committed acts of Perjury and /or conspired to commit acts of Perjury? e) Whether the Plaintiff (Barrel Works Guelph Ltd.), Katharine Lammer and Thomas Lammer committed acts of omission that are pertinent to this proceeding? f) Whether there is reasonable concern that the Plaintiff has committed acts of omission that are pertinent to this proceeding? g) Whether the Plaintiff attempted to interfere with a witness by way of intimidation. h) Whether there is Reasonable Concern that the Plaintiff attempted to interfere with a witness by way of intimidation. i) Whether there has been an Abuse of Process by the Plaintiff? j) Whether there is a Reasonable Concern of an Abuse of Process by the Plaintiff?

4It is important to note at the outset that the material and Affidavits filed by the parties are conflicting. In my view a trial is required in order to properly assess the credibility of the witnesses after examinations and cross-examinations and for the trial judge to make the necessary findings of fact.

5The trial judge will have a complete evidentiary record and will be able to hear and see the witnesses and make the necessary findings of fact. The defendants’ position that the plaintiff’s representatives, Thomas Lammer and Katharine Lammer, have sworn false Affidavits or have lied under oath at their examination-for discoveries are issues to be determined at trial.

6With respect to the defendants’ request for an order permitting the laying of a Criminal Information against the Plaintiffs, Thomas Lammer and Katharine Lammer, that is not within this Court’s jurisdiction.

7In Admassu v. Macri 2010 ONCA 99, the Court set out the following at paras 13, 14 and 38:

13 The motion judge indicated that Admassu was suing Macri on essentially two grounds: (i) for allegedly making false statements to a judge in court; and (ii) for allegedly commissioning one or more affidavits, the contents of which Macri knew to be false or misleading, during the child protection proceeding.

14 The motion judge concluded that no civil cause of action existed for either of these complaints against Macri. He reasoned in part that : “(1) what lawyers say in court in accorded absolute privilege…and (2) that the remedy for swearing a false affidavit (or indeed commissioning same) is to prosecute criminally for perjury (or aiding perjury)” In the result, in the motion judge’s view, Admassu’s pleading failed to disclose a reasonable cause of action against Macri.

38 Finally, in respect of Admassu’s allegation of perjury by Macri, the motion judge held that as a matter of law, Admassu’s remedy if any, lies in the criminal rather than the civil law domain, and that no civil cause of action exists for this claim. I agree.

8I am satisfied that there is no cause of action relating to perjury and as such, leave to amend their counter-claim to add punitive damages of $14,000,000.00 based on perjury is denied.

9With respect to the intimidation allegation, the Affidavits are conflicting. Katharine Lammer set out the following at paras 6 - 9 of her Affidavit sworn March 22, 2019:

Ed MacNevin is a former employee of the Plaintiff, previously employed as a security guard.

By the very nature of their role, security guards are regularly exposed to confidential information belonging to their employer, the public and the tenants of the building. As a term of their employment with the Plaintiff, all security guards are prohibited from disclosing confidential information to any other person, firm, or corporation, without obtaining the prior consent of the Plaintiff. In my understanding, these confidentiality terms survive the termination of employment.

In 2013, we were having problems with security staff discussing potential tenants and giving incorrect sales information to others. All security staff was asked to sign a confidentiality agreement at that time as part of their employment. The confidentiality agreement became a regular part of employment documents for new hires. Mr. MacNevin was intimately involved in hires as security supervisor and he had complete knowledge of the confidentiality agreement that was signed by any new employee. I also recall asking Mr. MacNevin to sign a confidentiality agreement at that time (2013). However, I have searched the records of the Plaintiff and I have been unable to find a copy.

On or about July 17, 2018, Mr. MacNevin contacted me via telephone. I had come to learn that Mr. MacNevin, despite having told me that he was retiring, he was continuing to work as a security guard and had started a small consulting business. I asked if he was continuing to work, as he had told me he was moving to Alberta and retiring from the work force. Upon hearing that he had indeed taken up the positions mentioned above, I reminded him that he was bound by the terms of his employment including confidentiality and that he should not be using confidential information that he had obtained through his employment with us to further either of his positions. Mr. MacNevin told me that he did not believe he had violated any confidentiality obligations, and he did not recall signing a confidentiality agreement. The conversation was polite on both sides and very short. At no time did I threaten or attempt to intimidate Mr. MacNevin.

10It will be for the trial judge to determine if her version is correct or whether the version set out by Mr. MacNevin in his affidavit sworn October 18, 2018 is correct. The larger issue is, however, that this allegation is not relevant or probative of the issues in this trial. The trial involves a commercial dispute regarding a commercial tenancy.

11In Central Canada Potash Co. v. Saskatchewan 1978 CarswellSask 100, the Court stated the following at para 99:

In my opinion, the tort of intimidation is not committed if a party to a contract asserts what he reasonably considers to be his contractual right and the other party, rather than electing to contest that right, follows a course of conduct on the assumption that the assertion of right can be maintained.

12The further difficulty the defendants have is that they have not filed a proposed amended counter-claim outlining the particulars that would give rise to these causes of action. In Windsor Raceway Inc. v. Ontario Lottery and Gaming Corp., 2014 ONSC 4076 (S.C.J.), D. M. Brown, J. stated the following at para. 18:

In Brookfield Financial Real Estate Group Ltd. v. Azorim Canada (Adelaide Street) Inc., I attempted to summarize the principles governing the amendment of pleadings:

The analysis must start with a consideration of Brookfield’s request to amend its Statement of Claim. The relevant portions of Rule 26 of the Rules of Civil Procedure read as follows:

26.01 On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

26.02 A party may amend the party’s pleading,

(a) without leave, before the close of pleadings, if the amendment does not include or necessitate the addition, deletion or substitution of a party to the action…

I adopt, as succinctly summarizing the legal principles applicable to motions to amend pleadings, the following passages from Morden & Perell, The Law of Civil Procedure in Ontario, First Edition:

The rule is mandatory and amendments must be allowed unless the responding party can demonstrate prejudice that cannot be compensated by costs. The prejudice must arise as a result of the amendment and pre-existing prejudice unconnected to the amendment will not suffice…

With the exception of an amendment to plead a statue-barred claim, the onus of proving prejudice is on the party alleging it…

On a motion to amend a pleading, the court does not examine the factual merits of the proposed amendments or the moving party’s motives for seeking the amendment, but it does examine whether as a matter of law, the amendment raises a tenable claim or defence and whether the proposed amendment has been properly pleaded in the sense of complying with the rules that govern pleadings, including sufficient particularity. Put somewhat differently, it makes little sense to grant an amendment that will immediately be challenged as legally unsound, and the court may inquire into the merits to ensure that the amendment is tenable in law and compliant with the rules of pleading. The case law establishes that proposed amendments are to be read generously with allowance for deficiencies in drafting…

Where an amendment to a pleading includes the addition of a party, then the court must also consider whether the joinder would satisfy the requirements of the Rules of the joinder of parties and claims…

Morden and Perell published their text in 2010. A year later the Court of Appeal, in its decision in Marks v. Ottawa (City), 2011 ONCA 248, identified a list of factors to be considered on a motion to amend under Rule 26.01 which included not only that “no amendment should be allowed which, if originally pleaded, would have been struck”, but that “the proposed amendment must be shown to be an issue worthy of trial and prima facie meritorious”. The Court of Appeal’s analysis of the pleading in that case sheds some light on the precise meaning of that last factor. In upholding the motion judge’s refusal of that part of the motion which sought to amend a pleading to include a claim for negligent misrepresentation the Court stated:

I agree that there should be some scope for a plaintiff to bring a novel claim or argue for the creation of a new tort. In this case, however, the facts alleged fall so far outside of what has been established as negligent misrepresentation that I agree that there is no realistic prospect that the action will succeed.

Consequently, notwithstanding the language in the Marks case that a “proposed amendment must be shown to be an issue worthy of trial and prima facie meritorious”, the specific analysis of the proposed amended claim conducted by the Court of Appeal resembled that performed by a court on a motion to strike a claim (or defence) under Rule 21.01(1)(b). I therefore conclude that on a motion to amend a statement of claim a court will consider the “tenability” of a proposed claim by applying the principles developed under the Rule 21.01(1)(b) analysis.

13I agree with the position of the plaintiff on this issue. In all of the circumstances there are no grounds to warrant an amendment as requested by the defendants.

14With respect to the Abuse of Process issue the defendants have to demonstrate that the plaintiff has used the legal process for a purpose other than what it was designed to serve, in other words for a collateral or illicit purpose. See Norman v. Soule (1991), FC.C.L.T. (2d) 16 (B.C.S.C.). The defendants have not demonstrated that the plaintiffs have acted in this way.

15For all of these reasons, leave is denied to amend the counter-claim.

16The final issue relates to the re-attendance at Examination for Discovery of Thomas Lammer. The examination of Thomas Lammer was conducted by the defendants’ counsel, Mr. O. Niedzviecki on September 19, 2017. The transcript of the discovery is 59 pages in length, comprising of 222 questions. The defendants acknowledge that all of the undertakings have been complied with.

17The defendants submit that some of the answers given at the discovery of Mr. Lammer may be in conflict with statements made in Affidavits prepared by Mr. or Mrs. Lammer. If that is the case, the defendants will be able to cross-examine Mr. and Mrs. Lammer at trial about any inconsistencies they assert exist. It will be up to the trial judge to determine whether there are inconsistencies and any explanation for them. These matters are trial matters. There are no exceptional circumstances supporting the defendants’ position that a further examination for discovery is warranted.

18In summary, therefore, I find and conclude as follows:

That the defendants’ motion to have Thomas Lammer re-attend for a re-examination for discovery is dismissed;
That the defendants’ motion to strike out the plaintiff’s claim on the basis of perjury, intimidation and abuse of process is dismissed;
That the defendants’ motion for an order permitting the laying of a criminal Information is dismissed;
That leave is hereby denied to amend the defendants’ counter-claim to add punitive damages on the basis of perjury, intimidation and abuse of process;
That the defendants’ motion for an order declaring Katharine and Thomas Lammer in contempt of court is dismissed.

19The plaintiff shall serve and file written submission on costs within 20 days. The defendants shall serve and file their response within 20 days. The plaintiff shall serve and file any reply within 10 days.

FRAGOMENI J. DATE: April 11, 2019

Case Summary

The defendants brought a multi-faceted motion seeking re-examination for discovery, striking the plaintiff's claim for perjury, non-disclosure, intimidation, and abuse of process, permission to lay criminal information, leave to amend their counterclaim for punitive damages based on perjury, intimidation, and abuse of process, and declarations of contempt of court against the plaintiff and its representatives. The court dismissed all aspects of the defendants' motion, finding that issues of perjury and witness credibility were for trial, that there is no civil cause of action for perjury, that the court lacked jurisdiction to permit laying criminal information, and that the proposed amendments to the counterclaim lacked legal tenability or sufficient particulars. The court also found no exceptional circumstances for a further examination for discovery. interesting_citations_summary: > This decision reinforces key principles regarding civil procedure and the limits of a motion judge's authority. It highlights that allegations of perjury do not constitute a civil cause of action, citing *Admassu v. Macri*, and that such matters are typically for criminal prosecution. It also clarifies that the tort of intimidation requires more than asserting a contractual right, referencing *Central Canada Potash Co. v. Saskatchewan*. Furthermore, the case applies the principles for amending pleadings under Rule 26.01, emphasizing the need for a tenable and prima facie meritorious claim, as discussed in *Windsor Raceway Inc. v. Ontario Lottery and Gaming Corp.* and *Marks v. Ottawa (City)*, and the requirement for proper particulars. final_judgement: > The defendants' motion for re-examination for discovery, to strike the plaintiff's claim, for an order permitting the laying of criminal information, for leave to amend their counter-claim to add punitive damages, and for an order declaring Katharine and Thomas Lammer in contempt of court, were all dismissed. winning_degree_applicant: 5 winning_degree_respondent: 1 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2019 decision_number: 2293 file_number: "15-337" source: "https://www.canlii.org/en/on/onsc/doc/2019/2019onsc2293/2019onsc2293.html" keywords: - Motion - Perjury - Intimidation - Abuse of Process - Amendment of Pleadings - Rules of Civil Procedure - Counterclaim - Contempt of Court - Examination for Discovery areas_of_law: - Civil Procedure - Civil Litigation - Criminal Law cited_cases: legislation: - title: "Criminal Code, R.S.C. 1985, c. C-46" url: "https://laws-lois.justice.gc.ca/eng/acts/c-46/" - title: "Rules of Civil Procedure, R.R.O. 1990, Reg. 194" url: "https://www.ontario.ca/laws/regulation/900194" case_law: - title: "Admassu v. Macri, 2010 ONCA 99" url: "https://www.canlii.org/en/on/onca/doc/2010/2010onca99/2010onca99.html" - title: "Central Canada Potash Co. v. Saskatchewan" url: "https://www.canlii.org/en/sk/skca/doc/1978/1978canlii190/1978canlii190.html" - title: "Windsor Raceway Inc. v. Ontario Lottery and Gaming Corp., 2014 ONSC 4076" url: "https://www.canlii.org/en/on/onsc/doc/2014/2014onsc4076/2014onsc4076.html" - title: "Norman v. Soule" url: "https://www.canlii.org/en/bc/bcsc/doc/1991/1991canlii2009/1991canlii2009.html" - title: "Marks v. Ottawa (City), 2011 ONCA 248" url: "https://www.canlii.org/en/on/onca/doc/2011/2011onca248/2011onca248.html" --- # Court File and Parties **COURT FILE NO.:** 15-337 **DATE:** 20190411 ## SUPERIOR COURT OF JUSTICE - ONTARIO **RE:** Barrel Works Guelph Ltd., Plaintiff **- and –** Richard Marasse and Yanling Du, carrying on business as Royal Gold Jewellery & Precious Metals, Richard Marasse and Yanling Du, Defendants **BEFORE:** FRAGOMENI J. **COUNSEL:** Clarke L. Melville, for the Plaintiff Richard Marasse in person, for the Defendants **HEARD:** April 2, 2019 --- #### ENDORSEMENT [1] This motion was heard by me on April 2, 2019. The action is scheduled for a pre-trial on April 18, 2019. The action is then scheduled for the Assignment Court on April 29, 2019 for the trial sittings commencing May 13, 2019. [2] Approximately one and a half months before this matter is scheduled for trial, the defendants proceed with a motion for the following relief, as set out in their Notice of Motion: 1. An order that the Corporate Plaintiff represented by Thomas Lammer, re-attend at its own expense and including all costs to the defendants, a Re-Examination for Discovery. 2. An order striking out the Plaintiff’s Claim for: i) committing acts of Perjury; ii) failing to disclose pertinent information; iii) attempting to prevent our witness from disclosing pertinent facts of this case through an act of intimidation; iv) Abuse of Process as described in [Rule 21.01 (3) (d) in the Rules of Civil Procedure](https://www.ontario.ca/laws/regulation/900194). 3. An order permitting the laying of a Criminal Information against Barrel Works Guelph Ltd., Thomas Lammer and Katharine Lammer for: a. committing acts of perjury contrary to [Criminal Code s. 131](https://laws-lois.justice.gc.ca/eng/acts/c-46/); b. for obstructing justice by their attempts to dissuade a witness from giving evidence contrary to [Criminal Code s. 139](https://laws-lois.justice.gc.ca/eng/acts/c-46/); c. Intimidation of a justice system participant contrary to [Criminal Code s.423.1 (1) (b)](https://laws-lois.justice.gc.ca/eng/acts/c-46/); d. such further and other acts against the Criminal Code as the defendants may advise and is justified by the conduct brought to light by this motion. 4. Leave permitting the Defendants to add to their Counter Claim for Punitive Damages in the amount of $14,000,000.00 for each count of Perjury the Honourable Court deems the Plaintiff to have committed during the full course of this proceeding. 5. Leave permitting the Defendants to add to their Counter Claim for Punitive Damages in the amount of $14,000,000.00 for each count of Intimidating a Witness this court deems the Plaintiff to have committed during the full course of this proceeding. 6. Leave permitting the Defendants to add to their Counter Claim for Punitive Damages, $4,000,000.00 for Abuse of Process. 7. An order declaring Katharine Lammer and the Plaintiff in Contempt of Court for Lying in Katharine Lammer’s sworn affidavit dated September 11, 2016. 8. An order declaring Thomas Lammer and the Plaintiff in Contempt of Court for lying during Examination for discovery. 9. An order declaring the Plaintiff and Thomas Lammer in Contempt of Court for lying in the Undertakings they provided. 10. An order declaring the Plaintiff and Thomas Lammer and Katharine Lammer in Contempt of Court for not disclosing pertinent information. 11. An order declaring the Plaintiff and Katharine Lammer in Contempt of Court for attempting to intimidate and interfere with a Witness in this proceeding. 12. An order that the Plaintiff pay the costs of this Motion on a full indemnity scale. 13. Such further and other relief as this Honourable Court deems just. [3] At paragraph 33 of the factum the defendants identify the following issues that need to be determined by the court at this motion: a) Whether the Plaintiff committed acts of Perjury? b) Whether there is a reasonable concern of Perjury being committed by the Plaintiff? c) Did Thomas Lammer and/or Katharine Lammer commit acts of Perjury? d) Is there reasonable concern that Thomas Lammer and/or Katharine Lammer committed acts of Perjury and /or conspired to commit acts of Perjury? e) Whether the Plaintiff (Barrel Works Guelph Ltd.), Katharine Lammer and Thomas Lammer committed acts of omission that are pertinent to this proceeding? f) Whether there is reasonable concern that the Plaintiff has committed acts of omission that are pertinent to this proceeding? g) Whether the Plaintiff attempted to interfere with a witness by way of intimidation. h) Whether there is Reasonable Concern that the Plaintiff attempted to interfere with a witness by way of intimidation. i) Whether there has been an Abuse of Process by the Plaintiff? j) Whether there is a Reasonable Concern of an Abuse of Process by the Plaintiff? [4] It is important to note at the outset that the material and Affidavits filed by the parties are conflicting. In my view a trial is required in order to properly assess the credibility of the witnesses after examinations and cross-examinations and for the trial judge to make the necessary findings of fact. [5] The trial judge will have a complete evidentiary record and will be able to hear and see the witnesses and make the necessary findings of fact. The defendants’ position that the plaintiff’s representatives, Thomas Lammer and Katharine Lammer, have sworn false Affidavits or have lied under oath at their examination-for discoveries are issues to be determined at trial. [6] With respect to the defendants’ request for an order permitting the laying of a Criminal Information against the Plaintiffs, Thomas Lammer and Katharine Lammer, that is not within this Court’s jurisdiction. [7] In [Admassu v. Macri 2010 ONCA 99](https://www.canlii.org/en/on/onca/doc/2010/2010onca99/2010onca99.html), the Court set out the following at paras 13, 14 and 38: > 13 The motion judge indicated that Admassu was suing Macri on essentially two grounds: (i) for allegedly making false statements to a judge in court; and (ii) for allegedly commissioning one or more affidavits, the contents of which Macri knew to be false or misleading, during the child protection proceeding. > > 14 The motion judge concluded that no civil cause of action existed for either of these complaints against Macri. He reasoned in part that : “(1) what lawyers say in court in accorded absolute privilege…and (2) that the remedy for swearing a false affidavit (or indeed commissioning same) is to prosecute criminally for perjury (or aiding perjury)” In the result, in the motion judge’s view, Admassu’s pleading failed to disclose a reasonable cause of action against Macri. > > 38 Finally, in respect of Admassu’s allegation of perjury by Macri, the motion judge held that as a matter of law, Admassu’s remedy if any, lies in the criminal rather than the civil law domain, and that no civil cause of action exists for this claim. I agree. [8] I am satisfied that there is no cause of action relating to perjury and as such, leave to amend their counter-claim to add punitive damages of $14,000,000.00 based on perjury is denied. [9] With respect to the intimidation allegation, the Affidavits are conflicting. Katharine Lammer set out the following at paras 6 - 9 of her Affidavit sworn March 22, 2019: > 6. Ed MacNevin is a former employee of the Plaintiff, previously employed as a security guard. > > 7. By the very nature of their role, security guards are regularly exposed to confidential information belonging to their employer, the public and the tenants of the building. As a term of their employment with the Plaintiff, all security guards are prohibited from disclosing confidential information to any other person, firm, or corporation, without obtaining the prior consent of the Plaintiff. In my understanding, these confidentiality terms survive the termination of employment. > > 8. In 2013, we were having problems with security staff discussing potential tenants and giving incorrect sales information to others. All security staff was asked to sign a confidentiality agreement at that time as part of their employment. The confidentiality agreement became a regular part of employment documents for new hires. Mr. MacNevin was intimately involved in hires as security supervisor and he had complete knowledge of the confidentiality agreement that was signed by any new employee. I also recall asking Mr. MacNevin to sign a confidentiality agreement at that time (2013). However, I have searched the records of the Plaintiff and I have been unable to find a copy. > > 9. On or about July 17, 2018, Mr. MacNevin contacted me via telephone. I had come to learn that Mr. MacNevin, despite having told me that he was retiring, he was continuing to work as a security guard and had started a small consulting business. I asked if he was continuing to work, as he had told me he was moving to Alberta and retiring from the work force. Upon hearing that he had indeed taken up the positions mentioned above, I reminded him that he was bound by the terms of his employment including confidentiality and that he should not be using confidential information that he had obtained through his employment with us to further either of his positions. Mr. MacNevin told me that he did not believe he had violated any confidentiality obligations, and he did not recall signing a confidentiality agreement. The conversation was polite on both sides and very short. At no time did I threaten or attempt to intimidate Mr. MacNevin. [10] It will be for the trial judge to determine if her version is correct or whether the version set out by Mr. MacNevin in his affidavit sworn October 18, 2018 is correct. The larger issue is, however, that this allegation is not relevant or probative of the issues in this trial. The trial involves a commercial dispute regarding a commercial tenancy. [11] In [Central Canada Potash Co. v. Saskatchewan 1978 CarswellSask 100](https://www.canlii.org/en/sk/skca/doc/1978/1978canlii190/1978canlii190.html), the Court stated the following at para 99: > In my opinion, the tort of intimidation is not committed if a party to a contract asserts what he reasonably considers to be his contractual right and the other party, rather than electing to contest that right, follows a course of conduct on the assumption that the assertion of right can be maintained. [12] The further difficulty the defendants have is that they have not filed a proposed amended counter-claim outlining the particulars that would give rise to these causes of action. In [Windsor Raceway Inc. v. Ontario Lottery and Gaming Corp., 2014 ONSC 4076](https://www.canlii.org/en/on/onsc/doc/2014/2014onsc4076/2014onsc4076.html) (S.C.J.), D. M. Brown, J. stated the following at para. 18: > In *Brookfield Financial Real Estate Group Ltd. v. Azorim Canada (Adelaide Street) Inc.*, I attempted to summarize the principles governing the amendment of pleadings: > > The analysis must start with a consideration of Brookfield’s request to amend its Statement of Claim. The relevant portions of [Rule 26 of the Rules of Civil Procedure](https://www.ontario.ca/laws/regulation/900194) read as follows: > > 26.01 On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment. > > 26.02 A party may amend the party’s pleading, > > (a) without leave, before the close of pleadings, if the amendment does not include or necessitate the addition, deletion or substitution of a party to the action… > > I adopt, as succinctly summarizing the legal principles applicable to motions to amend pleadings, the following passages from Morden & Perell, *The Law of Civil Procedure in Ontario, First Edition*: > > The rule is mandatory and amendments must be allowed unless the responding party can demonstrate prejudice that cannot be compensated by costs. The prejudice must arise as a result of the amendment and pre-existing prejudice unconnected to the amendment will not suffice… > > With the exception of an amendment to plead a statue-barred claim, the onus of proving prejudice is on the party alleging it… > > On a motion to amend a pleading, the court does not examine the factual merits of the proposed amendments or the moving party’s motives for seeking the amendment, but it does examine whether as a matter of law, the amendment raises a tenable claim or defence and whether the proposed amendment has been properly pleaded in the sense of complying with the rules that govern pleadings, including sufficient particularity. Put somewhat differently, it makes little sense to grant an amendment that will immediately be challenged as legally unsound, and the court may inquire into the merits to ensure that the amendment is tenable in law and compliant with the rules of pleading. The case law establishes that proposed amendments are to be read generously with allowance for deficiencies in drafting… > > Where an amendment to a pleading includes the addition of a party, then the court must also consider whether the joinder would satisfy the requirements of the Rules of the joinder of parties and claims… > > Morden and Perell published their text in 2010. A year later the Court of Appeal, in its decision in [Marks v. Ottawa (City), 2011 ONCA 248](https://www.canlii.org/en/on/onca/doc/2011/2011onca248/2011onca248.html), identified a list of factors to be considered on a motion to amend under Rule 26.01 which included not only that “no amendment should be allowed which, if originally pleaded, would have been struck”, but that “the proposed amendment must be shown to be an issue worthy of trial and prima facie meritorious”. The Court of Appeal’s analysis of the pleading in that case sheds some light on the precise meaning of that last factor. In upholding the motion judge’s refusal of that part of the motion which sought to amend a pleading to include a claim for negligent misrepresentation the Court stated: > > I agree that there should be some scope for a plaintiff to bring a novel claim or argue for the creation of a new tort. In this case, however, the facts alleged fall so far outside of what has been established as negligent misrepresentation that I agree that there is no realistic prospect that the action will succeed. > > Consequently, notwithstanding the language in the *Marks* case that a “proposed amendment must be shown to be an issue worthy of trial and prima facie meritorious”, the specific analysis of the proposed amended claim conducted by the Court of Appeal resembled that performed by a court on a motion to strike a claim (or defence) under Rule 21.01(1)(b). I therefore conclude that on a motion to amend a statement of claim a court will consider the “tenability” of a proposed claim by applying the principles developed under the Rule 21.01(1)(b) analysis. [13] I agree with the position of the plaintiff on this issue. In all of the circumstances there are no grounds to warrant an amendment as requested by the defendants. [14] With respect to the Abuse of Process issue the defendants have to demonstrate that the plaintiff has used the legal process for a purpose other than what it was designed to serve, in other words for a collateral or illicit purpose. See [Norman v. Soule (1991), FC.C.L.T. (2d) 16 (B.C.S.C.)](https://www.canlii.org/en/bc/bcsc/doc/1991/1991canlii2009/1991canlii2009.html). The defendants have not demonstrated that the plaintiffs have acted in this way. [15] For all of these reasons, leave is denied to amend the counter-claim. [16] The final issue relates to the re-attendance at Examination for Discovery of Thomas Lammer. The examination of Thomas Lammer was conducted by the defendants’ counsel, Mr. O. Niedzviecki on September 19, 2017. The transcript of the discovery is 59 pages in length, comprising of 222 questions. The defendants acknowledge that all of the undertakings have been complied with. [17] The defendants submit that some of the answers given at the discovery of Mr. Lammer may be in conflict with statements made in Affidavits prepared by Mr. or Mrs. Lammer. If that is the case, the defendants will be able to cross-examine Mr. and Mrs. Lammer at trial about any inconsistencies they assert exist. It will be up to the trial judge to determine whether there are inconsistencies and any explanation for them. These matters are trial matters. There are no exceptional circumstances supporting the defendants’ position that a further examination for discovery is warranted. [18] In summary, therefore, I find and conclude as follows: 1. That the defendants’ motion to have Thomas Lammer re-attend for a re-examination for discovery is dismissed; 2. That the defendants’ motion to strike out the plaintiff’s claim on the basis of perjury, intimidation and abuse of process is dismissed; 3. That the defendants’ motion for an order permitting the laying of a criminal Information is dismissed; 4. That leave is hereby denied to amend the defendants’ counter-claim to add punitive damages on the basis of perjury, intimidation and abuse of process; 5. That the defendants’ motion for an order declaring Katharine and Thomas Lammer in contempt of court is dismissed. [19] The plaintiff shall serve and file written submission on costs within 20 days. The defendants shall serve and file their response within 20 days. The plaintiff shall serve and file any reply within 10 days. --- FRAGOMENI J. DATE: April 11, 2019