Court File and Parties
COURT FILE NO.: CV-18-589898 MOTION HEARD: 20190116 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Igor Keselman and 2264632 Ontario Inc., Plaintiffs AND: Marktech Services Inc., Datagenix Inc., Self Care Catalysts Inc., Grace Castillo-Soyao, Marktech Services U.S. Inc., MediSolutions Group LLC, Medi-Promotions Inc. o/a MediScripts and MediSolutions, PrintPad (2009) Inc. et al. Defendants
BEFORE: Master P. Tamara Sugunasiri
COUNSEL: Mazzuca, M. and Fraser, J., Counsel, for the Plaintiffs Conforti, J., and Counsel for the Marktech Services Inc. (Moving Party) Diskin, M., Frontini, M., Counsel for Medi-Promotions Inc. and PrintPad (2009) Inc. (Moving Parties)
HEARD: January 16, 2019
Reasons for Decision
Overview
[1] Mr. Keselman (“Keselman”) brings this action against Marktech Services Inc. (“Marktech”) for:
a. Damages for wrongful dismissal; b. Damages representing an unpaid bonus in the amount of $20,000; c. Damages for unpaid wages in the amount of $40,000; d. If necessary, a declaration that the employment agreement is void; and e. Special damages equal to costs incurred by Keselman in seeking to obtain alternative employment.
[2] In addition, Keselman and his company 2264632 Ontario Inc. (“Corporate Plaintiff”) seek relief jointly and severally from Marktech and all of the Defendants except for Soyao for:
a. A declaration that the Plaintiff(s) own 5% of the “Medi-Companies” which includes MPI and Print Pad; b. An accounting including its profits, expenses and distributions for 2014 to present; c. Disgorgement of any amounts earned by the Medi Companies or a constructive trust over such amounts; d. A tracing of all monies coming into or passing out of the Defendant Companies; e. Damages under the oppression remedy found in section 248 of the OBCA; f. Bad faith, aggravated, enhanced, and/or general damages in the amount of $250,000; and g. Punitive damages in the amount of $250,000.
[3] Medi-Promotions Inc. (“MPI”) and PrintPad (2009) (“Print Pad”) are American companies. They move to stay the action for want of territorial jurisdiction (jurisdiction simpliciter) and subject-matter jurisdiction with respect to the oppression remedy. In the alternative they seek to strike the claim as against them in its entirety as an abuse of process.
[4] Marktech seeks to strike portions of the Statement of Claim (“SoC”) that seek a tracing from it, that allege fraud and other unlawful activities, pursuant to Rule 25.11 of the Rules of Civil Procedure. MPI and Print Pad seek this as alternative relief should the action as against them not be stayed or struck in its entirety.
[5] For the reasons that follow, I dismiss the stay motion and strike portions of the SoC with leave to amend. I provide a summary of my reasons below.
Background
[6] Marktech Services Inc. is a British Columbia company conducting business out of Concord, Ontario. It is in the business of product management, distribution and support services for healthcare professionals. In particular it maintains a phone bank of physicians in the United States that place orders for prescription pads. It conveys orders to Print Pad to produce the prescription pads for these physicians. The personalized prescription pads contain marketing and advertising parameters provided by or on behalf of MPI’s US-based clients.
[7] MPI is a New Jersey corporation formed in 1981. It operates out of New Jersey. Its business is to market advertising space and promotional opportunities to its clients who are US-based pharmaceutical companies. Personalized prescription pads sold to Marktech’s customers are one advertising platform marketed to MPI’s US-based clients.
[8] Print Pad is a Delaware corporation that operates out of Plattsburgh, New York. It provides print services and manufactures print products for physicians. In particular Print Pad produces personalized prescription pads for US physicians that incorporate MPI’s client’s advertising.
[9] Igor Keselman commenced employment with Marktech in 2013 ad VP Operations. In 2014 he became Marktech’s Chief Operating Officer.
[10] The Corporate Plaintiff is an Ontario corporation owned by Keselman. It alleges that it provided consulting services to Prosoft Development Inc. (“PDI”) and its healthcare affiliates pursuant to a Consulting Agreement. PDI is a corporation incorporated pursuant to the laws of Barbados.
[11] Keselman and the Corporate Plaintiff alleged that MPI, Print Pad, PDI and other defendants except for Marktech form a group of companies referred to as the “Medi Companies” who are involved in the sales, advertisement, and promotion of pharmaceutical, healthcare and related products. According to the Plaintiffs, that these companies are part of a sophisticated corporate organizational arrangement with common management, common ownership and common assets with Joshua Lapsker at the helm.
[12] Mr. Lapsker is alleged to be the director and controlling mind of Marktech, MPI and Print Pad and operates these companies out of the Concord, Ontario. The Corporate Plaintiff claims that it is entitled to 5% ownership interest promised to it by Joshua Lapsker for additional consulting services to the group.
[13] The Plaintiffs complain that the Corporate Plaintiff has not been given its 5% ownership interest nor its ownership stake in the MediScript platform Keselman claims he developed. They therefore seek a tracing into MPI and Print Pad’s assets and the application of an oppression remedy against them.
[14] They also claims that the “Medi Companies” engaged in fraudulent and unlawful conduct and that Keselman’s refusal to participate lead to his wrongful termination warranting a higher scale of damages.
I. The Stay Motion
Applicable Law
[15] MPI and Print Pad submit that the Superior Court of Justice lacks both territorial and subject matter jurisdiction over this action. They rely on section 106 of the Courts of Justice Act and Rule 21.01(3)(a) of the Rules of Civil Procedure which states that a party may bring a motion to a judge to stay or dismiss an action on the grounds that the Court lacks jurisdiction over the subject matter.
[16] I agree with MPI and Print Pad (collectively the “Moving Parties”) that there is a difference between subject matter jurisdiction and territorial jurisdiction. The distinction is explained by the British Columbia Court of Appeal as follows:
Territorial jurisdiction, known at common law as jurisdiction simpliciter, is concerned with connection between the dispute and the court’s territorial authority… In contrast, subject-matter jurisdiction is concerned with the court’s legal authority to adjudicate the subject matter of the dispute. [1]
Subject Matter Jurisdiction
[17] Subject matter jurisdiction motions are governed by Rule 21.01(3)(a) of the Rules of Civil Procedure. The clear wording of that rule ousts my jurisdiction to determine such a motion. As an aside I observe that I do not think that what the Moving Parties are seeking falls under this sub rule in any event. They are arguing that they are not subject to the OBCA and that therefore this Court lacks the jurisdiction to determine this part of the claim. I suggest that the Superior Court of the province has jurisdiction to determine issues under section 248 of the OBCA. What the Moving Parties really seek is a substantive determination of whether or not that Act applies to them. They suggest it does not. This may fall under one of the other subsections of Rule 21. Either way, I lack jurisdiction to assist the parties. I dismiss this part of the motion without prejudice to the Moving Parties moving before a judge, if they so choose.
Jurisdiction Simpliciter
[18] The test for jurisdiction simpliciter is well-established. Our Court has jurisdiction simpliciter over an action where there is a “real and substantial connection” between the dispute and Ontario. [2] That determination is a two-stage inquiry:
a. The Plaintiff must demonstrate that there is a presumptive connecting factor tying the action to Ontario. In Ontario the courts looks to the enumerated heads in rule 17.02 of the Rules of Civil Procedure; and b. If so, can the Defendant rebut the presumption by showing that, on the facts of the particular case, the connecting factor is insufficient to establish a real and substantial connection. [3]
[19] The standard of proof to establish a connecting factor is a “good arguable case”. [4]
[20] According to the Plaintiff, the connecting factor is that the contracts in dispute were formed in Ontario, and breached in Ontario (rule 17.02(f)(i) and (iv) of the Rules of Civil Procedure). There are two contracts raised in the SoC. The first is the Consulting Contract between the Corporate Defendant and PDI for services to PDI and its healthcare related affiliates including MPI and Print Pad. The second is an alleged verbal contract made between the Corporate Plaintiff and Mr. Lapsker on behalf of all of the Medi Companies including MPI and Print Pad for a 5% ownership in those companies as remuneration for additional work done. The Plaintiffs refer to this as the “Ownership Agreement”.
[21] The Moving Parties argue that the first step in determining whether a contract connected with a dispute was made in Ontario is to identify the dispute. The dispute, as against MPI and Print Pad, is about a proprietary interest promised by Mr. Lapsker. MPI and Print Pad submit that any such promise has nothing to do with them.
[22] Nevertheless, the issue is whether the Ownership Agreement, as described, and the underlying evidence with respect to its formation and breach, demonstrates a good arguable case that it was formed, and/or breached in Ontario. There is no dispute that the Ownership Agreement was formed at the Concord office. There is also no dispute that it was breached in Ontario. On this basis alone, the Plaintiffs have demonstrated a presumptive connecting factor to Ontario.
[23] Beyond that, a motions court must be careful not to tread upon the ground to be covered by a trier of fact by making findings of fact on material disputes in the SoC. Whether or not MPI and Print Pad were bound by the Ownership Agreement is a material dispute in the litigation. The onus is on the Plaintiffs to demonstrate a good arguable case that there is a connecting factor. Based on the record before me, I find that the Plaintiffs have met that onus. Further, I am not satisfied that the Moving Parties have met their onus of rebutting the presumption of connection to Ontario. The Moving Parties may succeed at the end of the day in extricating themselves from the litigation by way of other interlocutory mechanism but not because Ontario lacks territorial jurisdiction over the claims made against them.
Forum Non Conveniens
[24] It is clear from Van Breda that the Moving Parties must demonstrate that New Jersey or New York is clearly the more convenient forum. [5] In my view, the Moving Parties have failed to meet their burden.
[25] The non-exhaustive list of factors to consider in determining forum are succinctly articulated by my colleagues Master McGraw in We Serve Health Care LP v Onasanya [6] and Nishikawa, J. in Neger: [7]
a. The location of the parties, witnesses and evidence; b. The applicable law and its weight in comparison to the factual questions to be decided; c. The location where the bulk of the evidence will come from; d. The existence of any contractual provisions determining forum; e. The importance of avoiding a multiplicity of proceedings; f. Any geographical factors suggesting the natural forum; g. Whether declining jurisdiction would deprive the plaintiff/applicant of a legitimate juridical advantage; h. The cost of transferring the case to another jurisdiction of declining the stay; i. The impact of the transfer on the conduct of litigation or on related parallel proceedings; j. The possibility of conflicting judgments; k. Problems related to the recognition and enforcement of judgments; and l. The relative strength of the connection of the two parties.
[26] As in all discretionary matters, I add that the Court must consider the overall fairness of litigating the dispute in the forum selected by the Plaintiffs. Further, I note that the threshold for displacing the Plaintiff’s choice of forum is high and that the Court should adopt a cautious approach to fact-finding particularly with respect to matters that are at the heart of the lawsuit. [8]
[27] The Moving Parties have not raised any serious arguments or evidence that there is another forum that is clearly better. Their affiant simply attests that the companies’ books and records for the purposes of the tracing claim are all in New Jersey and New York. Their witnesses are also outside of Ontario. This is balanced with the Plaintiffs’ submissions that at least some of the other related companies operate exclusively in Ontario. If this action is stayed as against the Moving Parties, it would lead to a costly bifurcation of the proceedings. The Plaintiffs also argue that Mr. Lapsker is a Canadian citizen who is in the habit of travelling between Ontario and New Jersey and New York. There is no suggestion that he could not attend in Ontario to testify or that it would be unduly onerous to do so. I conclude that an analysis of these factors favour Ontario.
[28] It is not for the Court to evaluate further factors that have not been raised by the Moving Party. Given the dearth of argument and evidence on this issue, I dismiss this part of MPI and Print Pad’s motion and conclude that Ontario is the convenient forum.
[29] I now turn to the Moving Parties’ motion to strike the claim as against them as an abuse of process.
II. The Pleadings Motions
MPI and Print Pad motion to strike SoC as an abuse of process
[30] Rule 25.11(c) of the Rules of Civil Procedure allows the Court to strike a statement of claim for abuse of process. The Moving Parties argue that the SoC should be struck as against them because:
a. There is no consideration alleged in the claim related to the alleged promise to give the plaintiff 5% ownership interest; b. The Moving Parties are not party to any promise allegedly made to the Plaintiffs nor are they party to the Consulting Agreement which at one point Keselman testified was the basis for the alleged 5% ownership promise; c. The Consulting Agreement does not contain terms about the 5% promise; d. The Plaintiffs’ claim is based on the OBCA which does not apply to the Moving Parties; and e. The Plaintiffs’ claim asks the Court to adopt a group enterprise theory of liability which has been consistently rejected by the courts.
[31] A Rule 25.11 is a pleadings motions, not a motion for summary judgment motion or a determination of a point of law. The pleadings are to be read generously and the materials facts are taken as proved. Claims that are doubtful in law or factually weak should not be foreclosed. [9] The Moving Parties’ arguments essentially ask the Court to make substantive determinations on material issues raised in the pleadings.
[32] The only ground that requires consideration is that there are no material facts pleaded to support the claim for 5% ownership interest. I respectfully disagree. It is clear from the SoC that consideration has been pleaded. Paragraphs 27-43 describe additional work that is alleged to form the consideration for the 5% promise. Whether at the end of the day the Plaintiffs will be successful in establishing the existence of an Ownership Agreement or that it is binding on MPI and Print Pad, is another matter. For the time being, there is no basis to strike the SoC in its entirety as against MPI and Print Pad.
[33] There are, however, portions of the SoC that should be struck with leave to amend. I discuss this part of the motion below.
Marktech, MPI and Print Pad motion to strike portions of the SoC
[34] MPI and Print Pad rely on Marktech’s motion to strike.
[35] Marktech divides the impugned paragraphs of the SoC into three categories: The Tracing Claim (paras. 4(a) and (b)), the Fraudulent Activities (paras. 44 -52, the first and fourth sentence of para. 62 and the second sentence of para. 70), and the Bad Faith Allegations (paras. 75-78 and 82). I will address each in turn.
[36] This again is a pleadings motions that speaks to the sufficiency of the pleading. Marktech has not delivered an affidavit in support of its motion and need not do so. The facts from the SoC are to be taken as proved. The relevant portions are as follows:
i. Keselman resides in Vaughan (para.5); ii. The Corporate Plaintiff is an Ontario company. Keselman is the sole director, owner and operator of it (para. 6); iii. Marktech is a BC company conducting business in the Greater Toronto Area (“GTA”) in Ontario. It is in the business of product management, distribution, and support services for healthcare professionals (para. 7); iv. The Defendants, Marktech Services U.S. Inc., MediSolutions Group LLC and Medi-Promotions Inc. o/a MediScripts and MediSolutions (USA) (collectively “Medi-Solutions”), Print Pad (2009) Inc., MSR U.S. Inc., Hooray Health LLC, Quremedy LP, Mobilus Technologies LLC, and Intel-Scripts LLC, are US corporate entities (para. 9) v. All of the Defendants (except Marktech and Soyao) are collectively referred to as the “Medi Companies” unless otherwise stated (para. 16); vi. All the Defendants (except Soyao) are collectively referred to as the “Defendant Companies” unless otherwise stated (para. 15); vii. On or about October 28, 2013, Keselman commenced employment with Marktech as Vice President Operations (para. 18); viii. On or about late 2014, Keselman started a new role at Marktech as its Chief Operating Officer. Keselman was provided at that time a new compensation package, which included, inter alia, an increase to his salary (para. 19); ix. Despite the start of his new role and compensation package, it was not until October 2015 in which Keselman received the increase to his pay and was required to sign an employment agreement (“2015 Employment Agreement”)(para. 20); x. The 2015 Employment Agreement is void (para. 21); xi. Keselman claims damages representing unpaid wages (para. 22); xii. On or about October 15, 2014, the Corporate Plaintiff entered into a consulting agreement with the Defendant Prosoft Development Inc. (“PDI”) to provide various services including searching for and identifying technology investment opportunities for PDI, identifying business alliances, joint ventures and partnerships, establishing best practices for the creation and protection of intellectual property and consultation on strategic talent acquisition (paras. 23, 24); xiii. During 2014 onwards, Keselman and his company’s services increased but were not being compensated. These additional services were separate from Keselman’s employment with Marktech; xiv. Keselman was also part of the Office of the General Manager, a senior executive team that was responsible for the overall management and oversight of the Medi Companies (which does not include Marktech, I note)(para. 28); xv. In consideration for Keselman’s and the Corporate Plaintiff’s services, Joshua Lapsker, on behalf of the Medi Companies, promised a 5% interest in them (para. 31, 32); xvi. Keselman and the Corporate Plaintiff also developed a “Mediscripts Platform” for the Medi Companies (para. 34-36); xvii. The Mediscripts Platform is a comprehensive application for doctors, healthcare professionals, and their clients. It permits the use and sharing of patient information, prescription tools, and automated prescription pads (para. 38); xviii. Keselman and the Corporate Plaintiff were not compensated for this work and claim an ownership interest in the Mediscripts Platform (para. 43); xix. The Defendant Companies engaged in unlawful and fraudulent activities that lead to the effective termination of Keselman’s employment and the Corporate Defendant’s consulting services (para. 44 -52); xx. Prior to termination and after Keselman continued to oppose the Defendant Companies’ unlawful and fraudulent activities, Erez Lapsker began to strip Keselman of his duties including the removal of his computer access and removal of employees reporting directly to him (para. 62) xxi. Just prior to his termination, Joshua Lapsker also attempted to convince Keselman and or the Corporate Plaintiff to resign (para. 64) xxii. On February 8, 2017, Keselman’s employment with Marktech was terminated on a without cause basis (65); xxiii. Keselman and the Corporate Plaintiff state that the Defendant Companies terminated their respective agreements in bad faith due to their opposition and refusal to participate in the Defendant Companies’ unlawful and fraudulent activity (para. 75-78) xxiv. The conduct of the Defendant Companies was high-handed, harsh, vindictive, reprehensible and/or malicious and is deserving of condemnation and punishment (para. 82).
Law and Analysis
III. Rule 25.11 states:
STRIKING OUT A 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.
IV. A leading case in interpreting Rule 25.11 is *Carney Timber Co. v Pabedinskas*. [10] In that case, Justice Strathy sitting then as a motions judge articulated a concise summary of the jurisprudence interpreting the rule:
a. a fact that is relevant to a cause of action cannot be scandalous, frivolous or vexatious; b. a pleading that has no material facts is frivolous and vexatious; c. a pleading that is superfluous or can have no effect on the outcome of the action is scandalous, frivolous and vexatious; d. portions of a pleading that are irrelevant, argumentative, inserted only for colour or are bare allegations without material facts in support, will be struck as scandalous; e. a pleading that is purely argumentative will be struck out; f. a pleading that contains unfounded and inflammatory attacks on the integrity of a party, and speculative and unsupported allegations of defamation will be struck as scandalous and vexatious; g. a pleading may be struck on the ground that it may prejudice or delay the fair trial of the action where the probative value of the evidence would be outweighed by the time and effort involved and would seriously interfere with the fair and focused trial of the issues; h. striking a pleading on the ground that it may prejudice or delay the fair trial of an action is an exercise in discretion - the court must balance the added complexity of the pleading against the potential probative value of the facts alleged; i. pleadings that are replete with conclusions, expressions of opinion and contain irrelevant matters will be struck in their entirety; and j. pleadings that are clearly designed to use the judicial process for an improper purpose are an abuse of process - these include harassment and oppression of other parties by multifarious proceedings, the re-litigation of issues previously decided and the litigation of matters that have been concluded.
The Tracing Claim against Marktech is struck with leave to amend (paras. 4(a) and (b))
[37] As I understand it, the Plaintiffs’ Tracing Claim is tied to the Corporate Plaintiff’s Consulting Agreement with PDI, the alleged 5% ownership interest in the Medi Companies, and the claim to an ownership interest in the MediScripts Platform. However, the Plaintiffs have not connected Marktech to PDI nor the Medi Companies. In fact the Plaintiffs go out of their way to exclude Marktech from the definition of “Medi-Companies”.
[38] The Plaintiffs address this deficiency by submitting that “the named corporate defendants, including Marktech, are deeply embedded within a complicated web of interrelated corporate entities, all of which are owned or managed, directly or indirectly, by Joshua Lapsker and have shared employees and senior personnel.”
[39] Unfortunately, this is not pleaded in the existing SoC as against Marktech. Paragraph 17 pleads the interrelatedness of the other defendants including MPI and Print Pad but not Marktech. I disregard the Plaintiff’s evidence on this point. The materials facts must be in the SoC for the SoC to survive scrutiny. If important facts such as this were omitted, the Plaintiffs should have sought to amend their claim instead of tendering evidence on a pleadings motion to support what is missing. On this basis I strike the Tracing Claim as described. I rely on the principle that a pleading unsupported by material facts is frivolous and vexatious.
[40] I do not strike the Tracing Claim as against MPI nor Print Pad. They are differently situated. Paragraph 16 of the SoC defines “Medi Companies” to include MPI and Print Pad. Paragraph 17 pleads the interrelatedness of the Medi Companies. Paragraph 31 alleges that Joshua Lapsker gave one or both of the Plaintiffs an ownership interest in the Medi Companies. Further, the Plaintiffs allege that Mr. Lapsker did so on behalf of the Medi Companies. The consideration for that ownership interest is pleaded in paragraphs 27-43. However inelegant, the SoC contains material facts to support a Tracing Claim against MPI and Print Pad.
The Fraudulent Activities claim as against Marktech, MPI and Print Pad is struck with leave to amend (paras. 44 -52, the first and fourth sentence of para. 62 and the second sentence of para. 70)
[41] In pleading fraud, the rules require a more specific pleading. In particular, rule 25.06(8) of the Rules of Civil Procedure requires a pleading to contain full particulars. The Plaintiffs argue that particulars have been subsequently provided and now form part of the pleading. While I agree that in some context particulars may form part of the pleadings, particulars should not be used to bolster an otherwise deficient statement of claim. [11] A statement of claim is the roadmap to the litigation. As much as possible, it should be a single document that clearly sets out the causes of action and the material facts underlying them. It is not in the interests of the parties, nor the trier of fact, to have to review multiple documents to understand what the allegations are. This is more so where serious allegations of fraud are made.
[42] In the present SoC, the majority of the fraud allegations are set out at paragraphs 44-52 of the SoC. As against Marktech, I strike paragraphs 44, 45, 47, 48, 49, 50, 51 and 52. There is no mention of Marktech in para. 45. I do not strike paragraph 46 as it specifically explains the alleged conduct of Marktech. Paragraph 47 relates to recruiting for the Medi Companies of which Marktech is not a member. Paragraphs 48, 49 and 50 relate either to Joshua Lapsker individually, to PDI or the Medi Companies. Paragraphs 51 and 52 fail to identify which of the Defendant Companies engaged in the allegedly fraudulent conduct. It is scandalous, frivolous and vexatious to allege fraud against a group of companies as if they were one. Other than alleging that the Ownership Agreement was entered into by Mr. Lapsker on behalf of the Medi Companies, there is no other allegation that Mr. Lapsker is the controlling mind of any or all of the Defendant Companies such that his conduct can be attributable to them.
[43] For the same reasons, I strike paragraphs 44-52 as against MPI and Print Pad. Paragraphs 45-49 have no allegations against them at all. Paragraph 50-52 lack the specificity required to plead fraud against a defendant. There are no material facts as to each of their alleged fraudulent actions. While some details may be left to discovery, the Plaintiffs have failed to provide the appropriate road map required to sustain fraud allegations against these defendants.
[44] I also strike the phrase “after Keselman continued to oppose the Defendant Companies’ unlawful and fraudulent activities…” in paragraph 62 and the second sentence in paragraph 70.
Bad Faith allegations are struck
[45] Finally, I strike paragraphs 75-78 of the SoC for the same reasons as I struck the fraudulent activities allegations. Bad faith is predicated on the fraud allegations and I find them to be equally non-specific and prejudicial to Marktech, MPI and Print Pad.
Plaintiffs are granted leave to amend
[46] At this early stage, it would be unjust to deny the Plaintiffs an opportunity to cure the defects in their SoC. None of the moving parties have argued otherwise. Rule 25.11 of the Rules of Civil Procedure is a drastic remedy to be exercised in the clearest of cases. Drafting failures should not be used to deprive a plaintiff of having an adjudication on the merits of the claim. In the present case, it is just to allow the Plaintiffs to attempt to cure the defects identified.
Disposition
[47] I order as follows:
a. MPI and Print Pad’s motion to stay the action as against them is dismissed without prejudice to moving before a judge pursuant to Rule 21.01(3)(a) of the Rules of Civil Procedure to address subject matter jurisdiction; b. MPI and Print Pad’s motion to strike the claim as against them as an abuse of process is dismissed; c. As against Marktech, I strike paragraphs 44, 45, 47, 48, 49, 50, 51 and 52, the phrase “after Keselman continued to oppose the Defendant Companies’ unlawful and fraudulent activities…” in paragraph 62, the second sentence in paragraph 70, and paragraphs 75-78; d. As against MPI and Print Pad, I strike paragraphs 44-52, the phrase “after Keselman continued to oppose the Defendant Companies’ unlawful and fraudulent activities…” in paragraph 62, the second sentence in paragraph 70, and paragraphs 75-78; and e. The Plaintiffs are granted 45 days from the date of this order to deliver an Amended Statement of Claim.
Costs
[48] I strongly urge the parties to resolve the issue of costs. If they are unable to do so, they may provide written submissions within 30 days of today’s date. The submissions shall be no longer than three-pages double spaced plus costs outlines.
Original signed Master P. Tamara Sugunasiri Date: May 16, 2019
[1] Conor Pacific Group Inc. v Canada (Attorney General), 2011 BCCA 403 at 38. See Real Crowd Capital Inc. v. 1034179 BC Ltd., 2019 ONSC 2908 for a fulsome discussion. [2] Club Resorts Ltd v Van Breda, 2012 SCC 17 at 80-81 and 94-95. [3] Ibid. and see also Nishikawa’s most recent articulation of the test in Neger v Neger, 2018 ONSC 6739 at 18-19. [4] King v Giardina, 2017 ONSC 1588 at 17 and 20 citing Ontario v Rothmans Inc., 2013 ONCA 353 at 54, 110 118-9. [5] Van Breda, supra note 2 at 108-109. [6] We Serve Health Care LP v Onasanya, 2018 ONSC 1758 at 61 and 62. [7] Neger, supra note 5 at 33. [8] We Serve, supra note 11 at 63. [9] See for example, the commentary on Rule 25.11 of the Rules of Civil Procedure in Archibald and Sugunasiri, Ontario Superior Court Practice (Toronto:LexisNexis, 2019) at page 1207. [10] Carney Timber Co. v Pabedinskas, , [2008] OJ No 4818. [11] Active Operation Management (AOM) NA Inc. v Reveal Group Operations Management Ltd., 2013 ONSC 8014 at 9.