COURT FILE NO.: CV-18-596320
DATE: 2019/11/25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
AVIVA CANADA INC.
Plaintiff
- and -
LYONS AUTO BODY LIMITED, JOHN C. LYONS, BRIAN MAJOCHA, FRED ZABALET, and RALEIGH APPRAISAL SERVICE
Defendants
Richard A. Tapp for the Plaintiff
Richard H. Shekter and Karina Wong for the Defendants
HEARD: November 13, 2019
PERELL, J.
REASONS FOR DECISION
Rule 21 (1) (b): woulda, coulda, shoulda
A. Introduction
[1] The Plaintiff, Aviva Canada Inc., is an automobile insurance company. In this action, Aviva pleads that in April 2016, after one of its insured’s vehicles was repaired at Lyons Auto Body Limited, the insured reported to Aviva and to the police that Lyons Auto Body had further damaged his vehicle and had charged for the falsified repair damage. Aviva pleads in its Amended Statement of Claim that prompted by the 2016 report from its insured, it decided to investigate and expose whether it was being defrauded by appraisers and automobile repairers retained to repair its insureds’ vehicles.
[2] In pursuit of its investigation, in 2017, Aviva purchased a Lexus and a Chrysler and damaged the vehicles in a controlled setting. Then, Aviva had the damaged vehicles appraised by an independent appraiser. Next, it took the vehicles to Lyons Auto Body for repairs, where the vehicles were first appraised by Fred Zabalet of Raleigh Appraisal Service. Aviva pleads that before the vehicles were repaired that Brian Majocha, one of Lyons Auto Body’s employees, intentionally further damaged the vehicles. The vehicles were then repaired by Lyons Auto Body and returned to Aviva, which was charged for the repairs.
[3] After the vehicles were returned to Aviva, it had them reappraised. Aviva pleads that it identified fraudulent misrepresentations in Mr. Zabelet’s appraisal and in the invoices submitted by Lyons Auto Body, and John Lyons, who is the owner of Lyons Auto Body, and Mr. Majocha, who is its manager.
[4] On April 20, 2018, Aviva commenced an action against Lyons Auto Body, Mr. Lyons, Mr. Majocha, Mr. Zabalet, and Raleigh Appraisal Service for: (a) damages for fraudulent misrepresentation; (b) breach of the duty of honest performance of a contract; (c) unjust enrichment; (d) trespass to property; and (e) conspiracy to commit fraud.
[5] Pursuant to rules 21.01 (1)(b), 25.06, and 25.11 of the Rules of Civil Procedure,[^1] Lyons Auto Body Limited and Mr. Lyons bring a motion for: (a) an order striking out the claim against Mr. Lyons in the Amended Statement of Claim as alleged at paragraphs 1, 4, 11, 12, 14, 17- 26, 28 and 29, without leave to amend; (b) an order striking out the trespass claim against Lyons Auto Body; and (c) an order striking out paragraph 9 and a portion of paragraph 10 of the Amended Statement of Claim without leave to amend.
B. Procedural Background
[6] On April 20, 2018, Aviva commenced its action against Lyons Auto Body, Mr. Lyons, Mr. Majocha, Mr. Zabalet, and Raleigh Appraisal Service.
[7] On May 3, 2018, Aviva served an Amended Statement of Claim.
[8] On May 16, 2018, Mr. Lyons and Lyons Auto Body served a Notice of Intent to Defend.
[9] Mr. Majocha, Mr. Zabalet, and Raleigh Appraisal Service did not defend and have been noted in default.
[10] On May 28, 2018, Mr. Lyons and Lyons Auto Body served Aviva with a Request to Inspect Documents.
[11] On July 25, 2018, Aviva provided Mr. Lyons and Lyons Auto Body with an unsworn draft Affidavit of Documents. The productions included hundreds of pages of documents and dozens of hours of video evidence derived from Aviva’s investigation.
[12] On October 12, 2018, Mr. Lyons and Lyons Auto Body served a Demand for Particulars on Aviva. The main focus of the demand for particulars was whether Aviva was including the 2016 incident as a substantive element of its claims against the Defendants. Aviva initially refused to provide any particulars.
[13] On October 25, 2018, Aviva provided a Response to the Request to Inspect which cross-referenced the documents in the unsworn draft Affidavit of Documents to the Response.
[14] In the fall of 2018, Mr. Lyons and Lyons Auto Body brought a motion for particulars, which was originally made returnable on January 17, 2019, but the motion was adjourned for the completion of cross-examinations.
[15] Before the commencement of the cross-examinations, Mr. Lyons and Lyons Auto Body made an offer to settle the demand for particulars, at least with respect to the removal of paragraph 9 and part of paragraph 10 from the pleading.
[16] On February 4, 2019, there were cross-examinations.
[17] There was an apparent agreement between the Lyons Auto Body Defendants and Aviva with respect to the removal of paragraphs 9 and 10, but on March 5, 2019, Aviva delivered a Response to the Demand for Particulars without amending its Amended Statement of Claim. The apparent agreement proved illusory.
[18] The motion for particulars was not brought on, and, instead, in June 2019, Mr. Lyons and Lyons Auto Body brought the motion that is now before the court to strike various claims from the Amended Statement of Claim.
C. The Amended Statement of Claim
[19] I set out below the complete text of the Amended Statement of Claim. For the purposes of a motion under rule 21.01 (1)(b) the facts in the pleading are assumed to be true:
l. The Plaintiff, Aviva Canada Inc., claims:
a. damages for fraudulent misrepresentation, breach of the duty of honest performance of a contract, unjust enrichment, and conspiracy to commit fraud, in the amount of $3,840.39 as against the Defendants, Lyons Auto Body Limited, John C. Lyons, and Brian Majocha;
b. damages for fraudulent misrepresentation, breach of duty of honest performance of a contract, unjust enrichment, and conspiracy to commit fraud, in the amount of $3,840.39 as against the Defendants Raleigh Appraisal Services and Fred Zabalet;
c. damages for trespass to property in the amount of $10,000 as against the Defendants Lyons Auto Body Limited, John C. Lyons, and Brian Majocha;
d. damages in the amount of $100,000 for investigative costs, as against all Defendants;
e. punitive and exemplary damages in the sum of $200,000, as against all Defendants;
f. prejudgment and post-judgment interest pursuant to the Courts of Justice Act, R.S.O. 1990, c, C.43, as against all Defendants;
g. costs of this action on a substantial indemnity basis, including HST, as against all Defendants; and
h. such further and other relief as counsel may advise and this Honourable Court may permit.
THE PARTIES
A. THE PLAINTIFF
- The Plaintiff, Aviva Canada Inc. (hereinafter referred to as "Aviva"), is an insurance company duly corporate and licensed by the laws of Ontario to carry on business as an automobile insurer. Aviva's head office is located in the City of Markham, in the Province of Ontario.
B. THE DEFENDANTS
The Defendant Lyons Auto Body Shop Limited (herein after known as "Lyons'), is a corporation duly incorporated and caries on business as an auto body shop located at 1020 Burnhamthorpe Road West in Mississauga, Ontario.
The Defendant, John C. Lyons (herein after known as "John Lyons"), resides in Mississauga and is the named owner of Lyons.
The Defendant, Brian Majocha (herein after known as "Brian Majocha"). resides in Mississauga and was at all material times the manager of Lyons.
The Defendant Raleigh Appraisal Services (hereinafter known as "Raleigh") is an independent appraisal company carrying on business in Ontario with a head office located in the own of Uxbridge in the Province of Ontario.
The Defendant, Fred Zabalet (herein after known as "Fred Zabalet"), resides in the Town Newmarket and was at all material times a qualified automobile damage appraiser as well as the owner of Raleigh.
THE NATURE OF THIS ACTION
This action arises out of the Defendants' conspiracy to defraud Aviva through a series of fraudulent misrepresentations and unlawful actions in relation to repairs made to two motor vehicles, a 2010 Lexus RX350 (herein after known as “the Lexus") and a 2016 Chrysler 200 (hereinafter known as "the Chrysler"), owned by Aviva. The material events took place in January of 2017 and November of 2017 respectively.
Prior to the occurrence of the events giving rise to the causes of action referred to above, Aviva initially became concerned with the integrity of' repairs and invoices in relation to the work completed on an insured's vehicle in April of 2016. The insured's vehicle had been vandalized resulting in the second window on the driver's side and the third window on the passenger side being broken. However, when the insured arrived at Lyons several days later, he observed that his vehicle now had an additional broken window on the driver side, plus damage to the body panels which was not present before. Lyons denied causing the additional damage to the insured's vehicle and claimed that the vehicle arrived on the premises in this condition. The insured subsequently reported this information to Aviva, his insurer, as well as the police who investigated the incident.
As a result of the April 2016 incident, Aviva became concerned about the integrity of repairs and invoicing in relation to its insureds' vehicles and decided to investigate. Aviva purchased the Lexus and the Chrysler and then damaged the vehicles in a controlled setting. The vehicles were then appraised by an independent appraiser. The vehicles were taken to Lyons to have the damages appraised and repaired in the normal course of an insurance claim.
The Lexus and the Chrysler were taken to Lyons in January of 2017 and November of 2017 respectively. They were each appraised by Fred Zabalet of Raleigh after which time they were purportedly repaired. Upon completion of the repairs, the vehicles were appraised once again by an independent appraiser, at Aviva's request. Fraudulent misrepresentations were identified in the appraisal completed by Fred Zabalet. Fraudulent misrepresentations were also identified in the invoices submitted by Lyons, John Lyons, and Brian Majocha. Furthermore, it became known that Brian Majocha deliberately caused damage to the Lexus by striking it violently and repeatedly with an object with the intent to cause further damage and inflate the repair costs. This deliberate act was carried out with the knowledge of Fred Zabalet and with the knowledge of Raleigh.
THE FRAUDULENT ACTS
As described above, Aviva ascertained that there were fraudulent misrepresentations made in regards to the appraisals submitted by Fred Zabalet of Raleigh, as well as fraudulent misrepresentations made in the invoices submitted by Lyons, John C. Lyons, and Brian Majocha regarding the repairs completed to the vehicles in question.
In particular, it became clear to Aviva that in regards to the appraisals completed by Fred Zabalet of Raleigh:
a. to the knowledge of the Defendants, various parts were included on the appraisal as being required to be replaced which in fact were not damaged and did not need to be replaced;
b. to the knowledge of the Defendants, various parts were included on the appraisal as requiring refinishing when in fact they were not damaged and did not require refinishing.
c. to the knowledge of the Defendants, various parts were listed on the appraisal to be replaced and/or refinished which had not initially been damaged prior to the vehicle being taken to Lyons, but were deliberately damaged by Brian Majocha, with the knowledge of all other Defendants.
- In regards to the purported repairs to the vehicles, Aviva became aware that:
a. to the knowledge of the Defendants, various parts on the vehicles were intentionally damaged by Brian Majocha and then repaired and invoiced;
b. to the knowledge of the Defendants, various parts were reported to have been replaced but were not replaced and invoiced.
c. to the knowledge of the Defendants, various parts were reported to have been repaired but were not repaired yet invoiced.
A contract existed between Aviva, Fred Zabalet and Raleigh whereby the said Defendants agreed to perform appraisal services for Aviva for agreed upon fees. It was an implied term of the said contract that Fred Zabalet and Raleigh would perform the appraisals honestly and not participate in any fraudulent activity with an auto body shop in relation to the appraisals.
Furthermore, each time an auto body shop agrees with an insurer, such as Aviva, to carry out repairs to an insured's vehicle. a contract is created in which the auto body shop agrees to perform the repairs completely and honestly and the insurer agrees to pay the appropriate price for the work. Such contracts existed in the case of the Lexus and the Chrysler.
A. FRAUD & FRAUDULENT MISREPRESENTATION
As particularized above, the Defendants together and in concert designed, orchestrated and implemented a scheme to defraud Aviva and thereby obtain monies from Aviva under false pretences.
The made false representations, knowingly, without belief in their truth or recklessly, careless as to whether the representations were true or false. The Defendants intended that Aviva should act in reliance on the representations and Aviva has suffered damages as a result of such reliance.
B. BREACH OF DUTY OF GOOD FAITH/BREACH OF DUTY OF HONEST PERFORMANCE
The Defendants committed the tort of breach of duty of good faith in that they owed a duty to act honestly in the performance of contractual obligations and they failed to do so as described above.
They also failed to fulfil their duty of honest performance in contractual relations.
C CONSPIRACY
- The Defendants committed the tort of conspiracy in that:
a. the conduct of the Defendants was unlawful, planned and deliberate, was directed towards Aviva, and the Defendants knew or should have known in the circumstances that injury to Aviva was likely to, and did, result;
b. in the alternative, and in addition to (a.), the means planned, coordinated and agreed upon between and among the Defendants were both lawful and unlawful but the predominant purpose of the conduct was to cause injury to Aviva and such injury did result.
The Defendants agreed, or had a common intention, to pursue a course of action which has resulted in damage to Aviva. The Defendants committed overt acts referred to above in pursuance of their common design.
The acts and means by which the Defendants agreement was carried into effect were unlawful and were directed at Aviva. These acts included fraud and deceit resulting in the damages that Aviva has sustained.
Insofar as lawful means were used by the Defendants to achieve the object of the conspiracy, the Defendants intended to injure Aviva.
Aviva's damages are causally related to the acts taken pursuant to the agreement among the Defendants.
D. UNJUST ENRICHMENT
- The Defendants received a benefit as a result of their fraudulent actions while Aviva suffered a loss in direct relation to the benefit gained by the Defendants. There was also no legally justified reason for the benefit sustained by the Defendants resulting in the loss suffered by Aviva.
E. TRESPASS TO PROPERTY
- Brian Majocha committed the act of trespass to property in that he intentionally vandalised the Lexus when he was not acting under a right or authority conferred by law to do so, and he did not have the express permission of Aviva to engage in such an activity, which was prohibited.
PUNITIVE DAMAGES
The conduct of the Defendants is such as to justify an award of punitive and/or exemplary damages. The Defendants have behaved with arrogance and high-handedness, have shown a callous disregard and complete lack of concern for Aviva's rights and ought to be punished and deterred from this sort of misconduct. The Defendants' conduct was sufficiently reprehensible so as to justify an award of punitive and/or exemplary damages from the Defendants. The Defendants were aware of the probable consequences of their conduct and the damage such conduct would cause Aviva.
The Defendants' conduct was high-handed, reckless, without cause, deliberate, and in disregard of Aviva. They knew or ought to have known that their actions and omissions would have a significant adverse effect on Aviva.
PLACE OF TRIAL
The Plaintiff proposes that this action be tried at the City of Toronto in the Province of Ontario.
D. Observations about the Amended Statement of Claim
[20] It may be noted that in the Amended Statement of Claim, there is no alleged link between the Lyons Auto Body Defendants and the Raleigh Appraisal Defendants.
[21] It may be noted that in the Amended Statement of Claim, the only allegations that refer to Mr. Lyons specifically are as follows:
(a) The Plaintiff, Aviva Canada Inc., claims: damages for fraudulent misrepresentation, breach of duty of honest performance of a contract, unjust enrichment, and conspiracy to commit fraud, in the amount of $3,840.39 as against the Defendants, Lyons Auto Body Limited, John C. Lyons and Brian Majocha;
The Defendant, John C. Lyons (herein after known as "John Lyons"), resides in Mississauga and is the named owner of Lyons.
… Fraudulent misrepresentations were identified in the invoices submitted by Lyons, John Lyons, and Brian Majocha." . . .
As described above, Aviva ascertained that there were fraudulent misrepresentations made in regard to the appraisals submitted by Fred Zabalet of Raleigh, as well as fraudulent misrepresentations made in the invoices submitted by Lyons, John C. Lyons, and Brian Majocha regarding the repairs completed to the vehicles in question.
[22] It may be noted that the invoices incorporated into the pleadings by reference, are the corporate invoices of Lyons Auto Body. A review of those invoices reveals that there is no mention of Mr. Lyons’ name on any of the invoices.
[23] Other than the specific references above, the Amended Statement of Claim does not otherwise refer to Mr. Lyons specifically, but rather the pleading refers to the Defendants generally; i.e., the pleading groups (lumps together) Lyons Auto Body, Mr. Lyons, and Mr. Majocha.
[24] For a topic that I will return to below, it may be noted that the Amended Statement of Claim does not expressly plead that the corporate veil should be pierced so that Mr. Lyons should be treated as the alter ego of Lyons Auto Body.
[25] It may be noted that there are no specific allegations against Mr. Lyons or Lyons Auto Body with respect to the trespass perpetrated by Mr. Majocha. The only indirect references to the trespass are paragraph 13 (c), which pleads that all the Defendants had knowledge of the trespass, and paragraph 14 (a), which pleads that Aviva became aware of the knowledge of the Defendants.
[26] Finally, it should be noted that although not expressed in the Amended Statement of Claim, Aviva has acknowledged that the details of the 2016 repair of one of its insured’s vehicles were provided as “background information”. Aviva has acknowledged that no damages are being claimed in respect of the vehicle damaged and repaired at Lyons Auto Body in 2016. In its factum, Aviva states that the information about the 2016 repair is relevant to its claims for punitive and exemplary damages.
E. Discussion and Analysis
1. Introduction
[27] Putting aside Mr. Lyons and Lyons Auto Body’s challenge to paragraphs 9 and 10 of the Amended Statement of Claim, which I will discuss in the next section of these Reasons for Decision, in the main, their motion is brought pursuant to rule 21.01 (1) (b) of the Rules of Civil Procedure, which states:
WHERE AVAILABLE
To any Party on Question of Law
21.01(1) A party may move before a judge, …
(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence, and the judge may make an order or grant judgment accordingly.
(2) No evidence is admissible on a motion, …
(b) under clause (1)(b).
[28] Where pursuant to rule 21.01 (1)(b), a defendant submits that the plaintiff’s pleading does not disclose a reasonable cause or action, to succeed in having the action dismissed, the defendant must show that it is plain, obvious, and beyond doubt that the plaintiff cannot succeed in the claim.[^2] Matters of law that are not fully settled should not be disposed of on a motion to strike, and the court's power to strike a claim is exercised only in the clearest cases.[^3]
[29] In R. v. Imperial Tobacco Canada Ltd.,[^4] the Supreme Court of Canada noted that although the tool of a motion to strike for failure to disclose a reasonable cause of action must be used with considerable care, it is a valuable tool because it promotes judicial efficiency by removing claims that have no reasonable prospect of success and it promotes correct results by allowing judges to focus their attention on claims with a reasonable chance of success.
[30] On a motion under rule 21.01 (1)(b), the court accepts the pleaded allegations of fact in the statement of claim as proven, unless they are patently ridiculous or incapable of proof.[^5]
[31] The failure to establish a cause of action usually arises in one of two ways: (1) the allegations in the statement of claim do not come within a recognized cause of action; or (2) the allegations in the statement of claim do not plead all the elements necessary for a recognized cause of action.[^6] If a material fact necessary for a cause of action is omitted, the statement of claim is bad and the remedy is a motion to strike the pleadings, not a motion for particulars.[^7]
[32] I foreshadow here to say that in the immediate case, Aviva’s Amended Statement of Claim purports to plead recognized causes of action. As the discussion below will reveal, the problem, however, is that Aviva has not pleaded the necessary material facts with respect to its claims against Mr. Lyons in his personal capacity.
[33] On motions brought under the procedure to strike a claim or defence as untenable in law, leave to amend the pleading may and usually will be given, and leave to amend will only be denied in the clearest cases when it is plain and obvious that no tenable cause of action is possible on the facts as alleged and there is no reason to suppose that the party could improve his or her case by any amendment.[^8]
2. Paragraphs 9 and 10 of the Amended Statement of Claim
[34] Rule 25.06 (1) provides that a plaintiff must plead the material facts on which it relies but not the evidence by which those facts are to be proved. Under rule 25.11, the court may strike out a pleading that may prejudice or delay the fair trial of the action or that is scandalous, frivolous, vexatious or an abuse of process of the court.[^9] The same test that is used for striking a pleading for the failure to show a reasonable cause of action; i.e., the plain and obvious test, is used to determine whether a pleading is scandalous, frivolous. vexatious or an abuse of process of the court.[^10]
[35] A claim may be found to be scandalous, frivolous, vexatious or an abuse of process when it asserts untenable pleas, is argumentative, contains insufficient material facts to support the allegations made, or is made for an extraneous or collateral purpose.[^11]
[36] For the purpose of rule 25.11, the term “scandalous”, includes allegations that are irrelevant, argumentative, simply inserted for colour or to impugn the behaviour or character of the other party unrelated to the issues in the litigation.[^12] A pleading that raises an issue that cannot influence the outcome of the action is scandalous.[^13] The pleading is struck out because it serves no purpose other than to add colour or argument and to disconcert or humiliate the opponent.[^14] The rule authorizing the court to strike out a pleading as prejudicial, scandalous, frivolous, vexatious, or an abuse of the process of the court is exercised only in the clearest of cases.[^15]
[37] Mr. Lyons and Lyons Auto Body submit that the allegations in paragraph 9 and in the first sentence of paragraph 10 are a pleading of irrelevant similar fact evidence about an event that occurred before the misconduct that is the basis of the Amended Statement of Claim.
[38] They submit further that in pleading its concerns about the Defendants’ integrity as an explanation for commencing an investigation, Aviva has both pleaded evidence and not a material fact and, moreover the evidence is irrelevant, scandalous, frivolous and vexatious.
[39] In my opinion, the allegations in paragraph 9 and in the first sentence of paragraph 10 are not scandalous, frivolous, vexatious or an abuse of process. The material facts in these paragraphs are part of the narrative of the case, which but for the claim of damages of $100,000 for the costs of the investigation and the $200,000 claim for punitive damages would have been a case within the monetary jurisdiction of the Small Claims Court.
[40] The material facts of these paragraphs explain why the Defendants are being sued for $300,000 for fraud and conspiracy in the Superior Court rather than being sued in Small Claims court for approximately $17,000 for breach of contract and trespass.
[41] The material facts of these paragraphs are related to the issues in the litigation and will have an effect on the outcome.
[42] I, therefore, decline to strike these paragraphs from the Amended Statement of Claim.
3. The Trespass Claim
[43] Trespass is an unlawful disturbance of the possession of goods by seizure, removal, or a direct act causing damages to the goods.[^16]
[44] In the immediate case, the pleaded act of trespass is that of Mr. Majocha, who it is alleged deliberately damaged two vehicles.
[45] Apart from the allegation that Lyons Auto Body and Mr. Lyons knew about Mr. Mojocha’s conduct, which knowledge is not itself an act of trespass, there are no material facts that identify any direct act of trespass by Lyons Auto Body or Mr. Lyons. The only allegation connecting Lyons Auto Body and Mr. Lyons to the trespass is that it was done with the knowledge of all other Defendants.
[46] There are no overt allegations of vicarious liability on the part of Lyons Auto Body for the misconduct of Mr. Mojocha. In order to establish vicarious liability on the part of an employer, the wrongful act must be done in the course and scope of the employee's employment. It is deemed to be done in the course of employment if it is either: (1) a wrongful act authorized by the employer, or (2) a wrongful and unauthorized mode of doing some act authorized by the employer.[^17] There are no such allegations in the Amended Statement of Claim.
[47] Therefore, Aviva’s claim of trespass should be struck out as against Mr. Lyons and Lyons Auto Body.
4. The Breach of Contract Claim
[48] In paragraph 1(a) of the Amended Statement of Claim, Aviva claims damages for the breach of duty of honest performance as against Lyons Auto Body, Mr. Lyons and Mr. Majocha. At paragraph 15 of the Amended Statement of Claim, Aviva pleads that there was a contract between it and Lyons Auto Body in which the auto body shop agrees to perform the repairs honestly.
[49] Apparently, relying on the Supreme Court of Canada’s decision in Bhasin v. Hrynew,[^18] Aviva in its Amended Statement of Claim groups all the Defendants together in paragraphs 19-20, and pleads that they committed the tort of breach of duty of good faith in that they owed a duty to act honestly in the performance of contractual obligations and they failed to do so.
[50] In Bhasin, the Supreme Court did not create a new tort, but rather the Court held that contracting parties must be able to rely on a minimum standard of honesty from their contracting partner in the performance of the contract. The Court added this principle of good faith to existing contractual doctrines about contractual performance.
[51] In the immediate case, Aviva does not make any allegation that Mr. Lyons was a party to the contract between Aviva and the auto body shop. The contracting parties are Aviva and Lyons Auto Body.
[52] It is trite law that a party to a contract cannot enforce its contract against non-parties. In short, a tort or a contract claim for a breach of a duty of honest performance is not made out against Mr. Lyons, and this claim should be struck out.
5. The Unjust Enrichment Claim
[53] A claim for unjust enrichment requires that the plaintiff show that: (a) the defendant has been enriched; (b) the plaintiff experienced a corresponding deprivation; and (c) there is no juristic reason for the defendant’s enrichment at the expense of the defendant.[^19]
[54] In paragraph l(a) of the Amended Statement of Claim, Aviva claims damages for unjust enrichment as against Lyons Auto Body, Mr. Lyons, and Mr. Majocha. The material facts for this claim are set out in paragraph 26, set out above.
[55] As may be noted there are no material facts that show that Mr. Lyons was enriched in his personal capacity.
[56] Apart from the fact that Aviva suffered a deprivation, there are no material facts that support an unjust enrichment claim against Mr. Lyons. This claim too should be struck out.
6. Piercing the Corporate Veil and Claims Against Corporation Owners, Directors, Officers, and Employees
[57] Before discussing the fraudulent misrepresentation and the conspiracy to commit fraud claims against Mr. Lyons, it is necessary to discuss the law associated with pleading a claim against a corporations, owners, directors, officers and employees.
[58] A shareholder can be sued for the wrongs of the corporation only in very limited circumstances.[^20] To successfully sue the shareholder for the faults of his or her corporation, the plaintiff must “pierce the corporate veil”. The corporate veil may be pierced when the corporation is incorporated for an illegal, fraudulent or improper purpose, or where respecting the separate legal personality of the corporation would be flagrantly unjust.[^21]
[59] There is, however, no stand-alone just and equitable standard for piercing the corporate veil, and it is important that courts be rigorous in enforcing the principle that absent extraordinary circumstances a corporation is a separate legal entity distinct from its shareholders and from its subsidiary corporations.[^22]
[60] In order to pierce the corporate veil, two factors must be established: (1) the alter ego must exercise complete control over the corporation or corporations whose separate legal identity is to be ignored; and (2) the corporation whose separate legal identity is to be ignored must be instruments of fraud or a mechanism to shield the alter ego from its liability for illegal activity.[^23]
[61] Personal liability is not engaged solely because a corporation acts through human agency.[^24] Directors, officers, and employees, however, may be liable for their own tortious conduct.[^25] To properly plead a case of personal liability of an director, officer, or employee, the plaintiff must specifically plead a cause of action against the individual in his or her personal capacity.[^26]
[62] In Lobo v. Carleton University,[^27] the Court of Appeal stated for employees to be liable in tort for conduct associated with the work of their employee: (1) the actions of the employee must be in and of itself tortious; or (2) the actions of the employee must exhibit a separate identity or interest from those of the employer so as to make the employee’s conduct his or her own discrete conduct.
[63] If the claim against the officer or director is that his or her acts were themselves tortious, the pleading must be intensely scrutinized so that the court can strike out claims that are improperly pleaded or claims where the material facts do not justify the allegations of a personal tort.[^28] In Piedra v. Copper Mesa Mining Corp.,[^29] the Court of Appeal stated at paragraph 75:
- Since the plaintiffs' claims against the Directors rest solely on the assertion that the Directors' acts were themselves tortious, the plaintiffs' pleadings against the Directors must withstand a high degree of scrutiny. See for example, Abdi Jama (Litigation Guardian of) v. McDonald's Restaurants of Canada Ltd., [2001] O.T.C. 203 (S.C.), at para. 10. This accords with the responsibility of the courts to be "scrupulous in weeding out claims that are improperly pleaded or where the evidence does not justify an allegation of a personal tort": Adga, at p. 114. As this court has indicated, were it otherwise, there is a risk that corporate officers and directors could be "driven away from involvement in any respect in corporate business by the potential exposure to ill-founded litigation": Adga, at pp. 104-105.
[64] When a plaintiff sues both a corporation and individuals within that corporation, including officers, directors or employees, the plaintiff must plead sufficient particulars that disclose a basis for attaching liability to the individuals in their personal capacities.[^30]
7. The Fraudulent Misrepresentation Claim
[65] The elements of a claim of fraudulent misrepresentation are: (1) a false statement by the defendant; (2) the defendant knowing that the statement is false or being indifferent to its truth or falsity; (3) the defendant having an intent to deceive the plaintiff; (4) the false statement being material and the plaintiff having been induced to act; and, (5) the plaintiff suffering damages.[^31]
[66] Rule 25.06 (8) of the Rules of Civil Procedure provides that where fraud is pleaded, the pleading must contain full particulars. Fraud is a serious allegation, and where a party alleges conduct akin to fraud or intentional misconduct, particulars of the specific facts that are required to ground such an action must be pleaded.[^32] Fraud involves dishonest and moral wrongdoing, and a party alleging fraud must plead the required elements of the tort along with specific facts that would constitute fraud.[^33]
[67] At the fundamental core of fraud, deceit, or fraudulent misrepresentation is the moral turpitude or the defendant. In Washburn v. Wright,[^34] Justice Riddell said, at p. 147:
Fraud is not mistake, error in interpreting a contract; fraud is "something dishonest and morally wrong, and much mischief is ... done, as well as much unnecessary pain inflicted, by its use where 'illegality' and 'illegal' are the really appropriate expressions:" Ex p. Watson (1888), 21 Q.B.D. 301, per Wills, J., at p. 309.
[68] The moral turpitude of fraud, deceit, or fraudulent misrepresentation are found in the constituent elements that: (1) the defendant knows that his or her statement is false or the defendant is indifferent to the statements truth or falsity; and (2) the defendant having an intent to deceive the plaintiff.
[69] That the moral turpitude elements of fraud are fundamental to liability was demonstrated by the Supreme Court of Canada’s judgment in Bruno Appliance and Furniture Inc. v. Hryniak,[^35] which was the companion case to Hryniak v. Mauldin.[^36] In Hryniak v. Mauldin, the Supreme Court upheld a summary judgment for fraud, and in Bruno Appliance and Furniture Inc. v. Hryniak, the Supreme Court upheld the dismissal of a summary judgment motion for fraud precisely because there was a genuine issue for trial about the moral turpitude elements of fraud.
[70] Justice Karakatsanis for the Court confirmed the importance of these constituent elements of a fraud claim. At paragraphs 18 to 21 of her judgment, she stated:
- The classic statement of the elements of civil fraud stems from an 1889 decision of the House of Lords, Derry v. Peek (1889), 14 App. Cas. 337, where Lord Herschell conducted a thorough review of the history of the tort of deceit and put forward the following three propositions, at p. 374:
First, in order to sustain an action of deceit, there must be proof of fraud, and nothing short of that will suffice. Secondly, fraud is proved when it is shown that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false... . Thirdly, if fraud be proved, the motive of the person guilty of it is immaterial. It matters not that there was no intention to cheat or injure the person to whom the statement was made.
This Court adopted Lord Herschell's formulation in Parna v. G. & S. Properties Ltd., 1970 CanLII 25 (SCC), [1971] S.C.R. 306, adding that the false statement must "actually [induce the plaintiff] to act upon it" (p. 316, quoting Anson on Contract). Requiring the plaintiff to prove inducement is consistent with this Court's later recognition in Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311, at pp. 319-20, that tort law requires proof that "but for the tortious conduct of the defendant, the plaintiff would not have sustained the injury complained of".
Finally, this Court has recognized that proof of loss is also required. As Taschereau C.J. held in Angers v. Mutual Reserve Fund Life Assn. (1904), 1904 CanLII 44 (SCC), 35 S.C.R. 330 "fraud without damage gives ... no cause of action" (p. 340).
From this jurisprudential history, I summarize the following four elements of the tort of civil fraud: (1) a false representation made by the defendant; (2) some level of knowledge of the falsehood of the representation on the part of the defendant (whether through knowledge or recklessness); (3) the false representation caused the plaintiff to act; and (4) the plaintiff's actions resulted in a loss.
[71] Applying the above law to the circumstances of the immediate case, the analysis may begin by noting that the misrepresentation in the immediate case appears to be the false charging in the corporate invoices. These invoices are from the corporate Defendant, Lyons Auto Body, and apart from the unhelpful appellation “named owner” what role, if any, Mr. Lyons had in the preparation of the invoices is not pleaded.
[72] As noted above, it is not pleaded that Mr. Lyons is the alter ego of Lyons Auto Body or that he created it as an instrument of fraud or that he has absolute control over it. The acts of repairing the vehicle and charging for the repairs are the acts of the employer, and it is not pleaded whether Mr. Lyons was an officer, director, or employee. If Mr. Lyons played any of these roles, then there is no pleading of a discrete wrongdoing by him independent of his employer’s wrongdoing. It cannot be said that Mr. Lyons personally made the misrepresentations found in Lyons Auto Body’s invoice. There is no allegation that he personally intended to deceive Aviva. There is no pleading of actions by Mr. Lyons that exhibit a separate identity or interest different from that of Lyons Auto Body.
[73] In the immediate case, Mr. Lyons is apparently connected to the causes of action of trespass, unjust enrichment, fraudulent misrepresentation, and conspiracy simply by the allegation that his is the “named owner.” This appellation is vague to the point of meaningless, because even if one assumes that Mr. Lyons is a shareholder, that status tells us nothing about whether he has any role at the corporation. Further, there is nothing in the Amended Statement of Claim that describes what Mr. Lyons did personally, there is nothing to support that he was controlling the corporation and using it as his alter-ego to perpetrate wrongdoing.
[74] In Aviva et al v. Assessment Direct et al,[^37] another and similar action brought by Aviva against an automobile repairer, Aviva alleged that the corporate defendant submitted fraudulent invoices. In that case, unlike the immediate case, Aviva pleaded that the individual human defendants were the “controlling minds of the corporate defendant and responsible for supervising its day to day operations”. Justice Glustein struck the pleading with leave to amend because he found that it did not meet the standard of pleading a minimal level of material facts to support a claim against the individual defendants.[^37]
[75] The Amended Statement of Claim in the case at bar is even more deficient than the statement of claim in Aviva et al v. Assessment Direct et al in pleading a case of personal liability against Mr. Lyons and I, therefore, strike the personal claims against Mr. Lyons for fraudulent misrepresentation.
8. The Conspiracy Claim
[76] The elements of a claim of civil conspiracy are: (1) two or more defendants make an agreement to injure the plaintiff; (2) the defendants: (a) use some means (lawful or unlawful) for the predominate purpose of injuring the plaintiff, or (b) use unlawful means with knowledge that their acts were aimed at the plaintiff and knowing or constructively knowing that their acts would result in injury to the plaintiff; (3) the defendants act in furtherance of their agreement to injure; and, (4) the plaintiff suffers damages as a result of the defendants' conduct.[^38]
[77] The second element of a civil conspiracy cause of action has come to identify two distinct types of civil conspiracy; i.e., the illegal means conspiracy and the predominate purpose of injuring the plaintiff conspiracy.
[78] Each individual defendant is entitled to know the case they must meet; this is particularly true for the conspiracy pleading because, although conspiracy is a tort committed by a group, the liability of each defendant arises because they individually participated as a member of the group.[^39] A conspirator is not liable vicariously for what somebody else did; he or she is liable for having participated and contributed to the conspiracy. In a conspiracy pleading, it is necessary to set out discretely the particular acts of each co-conspirator.[^40]
[79] A pleading of conspiracy should specify: (1) who the parties are and their relationship with each other; (2) the agreement between the defendants to conspire; (3) purpose or objects of the conspiracy; (4) the overt acts that are alleged to have been done by each of the conspirators in furtherance of the conspiracy; and (5) describes the damages occasioned to the plaintiff by the conspiracy.[^41]
[80] In the immediate case, Aviva has not specified or properly pleaded a conspiracy claim against Mr. Lyons. Indeed, the Amended Statement of Claim does not specify the discrete overt acts alleged to have been done by any of the conspirators. All the allegations of conspiracy are against the Defendants collectively and, as indicated above, fraudulent misrepresentations by Mr. Lyon personally are not supported by the material facts that have been pleaded.
[81] The pleading of conspiracy to defraud as against Mr. Lyons is seriously deficient. It should be struck out.
F. Should Leave to Amend be Granted?
[82] Because of the deficiencies described above and summarized again below, I have struck out the claims against Mr. Lyons personally and also the trespass claim against Lyons Auto Body. The last question to consider on this motion is whether Aviva should be granted leave to deliver a Fresh as Amended Statement of Claim to replead some or any of the stricken causes of action.
[83] With one exception, the answer to this question is no. The exception is that I grant leave for Aviva to plead a claim of vicarious liability against Lyons Auto Body with respect to the trespass perpetrated by Mr. Majocha.
[84] After an intensive and expensive investigation and a sting operation, without specifying Mr. Lyons’ discrete acts, Aviva pleads that Mr. Lyons is the “named owner” and that he knew or must have known about the fraudulent misrepresentation and the conspiracy to fraud. As noted above, this pleading is deficient in making out a case against Mr. Lyon in his personal capacity.
[85] Insofar as the claims of breach of contract and trespass are concerned, Mr. Lyons cannot be a perpetrator, because he is not a party to the contract and he personally did not damage the two vehicles. The claim for unjust enrichment as pleaded also does not reach Mr. Lyon.
[86] In the immediate case, the material events took place between January 2017 and November of 2017 and after commencing its action in April 2018, rather than demonstrating that it could plead additional material facts that would cinch Mr. Lyon’s personal liability, Aviva adamantly submitted that after careful consideration and after providing Mr. Lyons with the details of the claims about the two damaged and fraudulently repaired vehicles and the fraudulent invoices that it had learned from its investigation, it asserted that it had pleaded viable causes of action against Mr. Lyons.
[87] Aviva, however, never pled that Mr. Lyon had complete control over Lyons Auto Body. It never pled that Mr. Lyon was personally involved in the fraudulent misrepresentation or what was his discrete role, if any, in the conspiracy to commit fraud. Aviva has never pled a case for piercing the corporate veil. It has never pled that Mr. Lyons established Lyons Auto Body as a sham to perpetrate frauds or that it was Mr. Lyons’ alter-ego absolutely controlled by him. It has never described Mr. Lyons’ role in the alleged conspiracy.
[88] Aviva’s essential position throughout has been that reading the Amended Statement of Claim generously, it is an satisfactory pleading. For the reasons set out above, I disagree. Although the case law about rule 21.01 (1)(b) requires speaking in double negatives, the immediate case is not a case in which the party whose pleading is under attack suggests additional facts that could be pleaded to establish that it has a viable cause of action against Mr. Lyons personally.
[89] The action is, in any event, going to proceed against Lyons Auto Body, but in the circumstances of the immediate case, I would not exercise my discretion to allow Aviva to plead personal claims against Mr. Lyon. If these personal claims could have been pleaded, in the circumstances of the immediate case, it would have been expected that Aviva would have and should have pleaded those claims from the outset.
G. Conclusion
[90] For the above reasons, I dismiss the request to strike paragraph 9 and a part of paragraph 10 from the Amended Statement of Claim. I grant the request for an order striking out the claims against Mr. Lyons in the Amended Statement of Claim without leave to amend. I grant the request for an order striking out the trespass claim against Lyons Auto Body but with leave to amend. With these claims removed, I grant Aviva leave to deliver a Fresh as Amended Statement of Claim with Mr. Lyons deleted from the style of cause.
[91] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with Mr. Lyons and Lyons Auto Body’s submissions within twenty days from the release of these Reasons for Decision followed by Aviva’s submissions within a further twenty days.
Perell, J.
Released: November 25, 2019
COURT FILE NO.: CV-18-596320
DATE: 2019/11/25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
AVIVA CANADA iNC.
Plaintiff
- and -
LYONS AUTO BODY LIMITED, JOHN C. LYONS, BRIAN MAJOCHA, FRED ZABALET, and RALEIGH APPRAISAL SERVICE
Defendants
REASONS FOR DECISION
PERELL J.
Released: November 25, 2019
[^1]: R.R.O. 1990, Reg. 194.
[^2]: Dawson v. Rexcraft Storage & Warehouse Inc. (1998), 1998 4831 (ON CA), 164 D.L.R. (4th) 257 (Ont. C.A.); Hunt v. Carey Canada Inc. (1990), 1990 90 (SCC), 74 D.L.R. (4th) 321 (S.C.C.).
[^3]: Dawson v. Rexcraft Storage & Warehouse Inc. (1998), 1998 4831 (ON CA), 164 D.L.R. (4th) 257 (Ont. C.A.); Temelini v. Ontario Provincial Police (Commissioner) (1990), 1990 7000 (ON CA), 73 O.R. (2d) 664 (C.A.).
[^4]: 2011 SCC 42 at paras. 17-25.
[^5]: Folland v. Ontario (2003), 2003 52139 (ON CA), 64 OR (3d) 89 (C.A.); Nash v. Ontario (1995), 1995 2934 (ON CA), 27 O.R. (3d) 1 (CA); Canada v. Operation Dismantle Inc., 1985 74 (SCC), [1985] 1 S.C.R. 441; A-G. Canada v. Inuit Tapirisat of Canada, 1980 21 (SCC), [1980] 2 S.C.R. 735.
[^6]: 2106701 Ontario Inc. (c.o.b. Novajet) v. 2288450 Ontario Ltd., 2016 ONSC 2673 at para. 42; Aristocrat Restaurants Ltd. v. Ontario, [2004] O.J. No. 5164 (S.C.J.); Dawson v. Rexcraft Storage & Warehouse Inc., 1998 4831 (ON CA), [1998] O.J. No. 3240 at para. 10 (C.A.).
[^7]: Balanyk v. University of Toronto, 1999 14918 (ON SC), [1999] O.J. No. 2162 (S.C.J.); Regional Plaza Inc. v. Hamilton-Wentworth (Regional Municipality) (1990), 1990 6761 (ON SC), 12 O.R. (3d) 750 (Gen. Div.); Copland v. Commodore Business Machines Ltd. (1985), 1985 2190 (ON SC), 52 O.R. (2d) 586 (Master), appeal dismissed (1985), 52 O.R. (2d) 586n (H.C.J.).
[^8]: Mitchell v. Lewis, 2016 ONCA 903 at para. 21; Conway v. Law Society of Upper Canada, 2016 ONCA 72 at para. 16; Sheridan v. Ontario, 2015 ONCA 2281; 1523428 Ontario Inc. v. TDL Group Corp., 2018 ONSC 5886 (S.C.J.)Adelaide Capital Corp. v. Toronto-Dominion Bank (c.o.b. TD Canada Trust), 2006 39459 (ON SC), [2006] O.J. No. 4705 at para. 6 (S.C.J.), varied 2007 ONCA 456, [2007] O.J. No. 2445 at para. 6 (C.A.); Miguna v. Ontario (Attorney General), 2005 46385 (ON CA), [2005] O.J. No. 5346 (C.A.).
[^9]: 876502 Ontario Inc. v. I.F. Propco Holdings (Ontario) 10 Ltd. (1997), 1997 12196 (ON SC), 37 O.R. (3d) 70 (Gen. Div.); R. Cholkan & Co. v. Brinker (1990), 1990 6865 (ON SC), 71 O.R. (2d) 381 (H.C.J.); Demeter v. British Pacific Life Insurance Co. (1983), 1983 1838 (ON SC), 43 O.R. (2d) 33 (H.C.J.), affd (1984), 1984 1996 (ON CA), 48 O.R. (2d) 266 (C.A.); Foy v. Foy, (1978), 1978 1394 (ON CA), 20 O.R. (2d) 747 (C.A.).
[^10]: Resolute Forest Products Inc. v. 2471256 Canada Inc. (c.o.b. Greenpeace Canada), 2016 ONSC 5398 (Div. Ct.); Miguna v. Toronto (City) Police Services Board, 2008 ONCA 799.
[^11]: Carney Timber Co. v. Pabendinskas, 2008 63163 (ON SC), [2008] O.J. No. 4818 (S.C.J.); Hainsworth v. Ontario, [2002] O.J. No. 1380 (S.C.J.); Panalpina Inc. v. Sharma, [1988] O.J. No. 1401 (H.C.J.).
[^12]: Holder v. Wray, 2018 ONSC 6133; Carney Timber Co. v. Pabendinskas, 2008 63163 (ON SC), [2008] O.J. No. 4818 (S.C.J.); George v. Harris, [2000] O.J. No. 1762 (S.C.J.).
[^13]: Caras v. IBM Canada Ltd., [2004] O.J. No. 3009 (Master); Everdale Place v. Rimmer (1975), 1975 337 (ON SC), 8 O.R. (2d) 641 (H.C.J.).
[^14]: Sequin v. Van Dyke 2011 ONSC 2566 (Master); Dugal v. Manulife Financial Corp., 2011 ONSC 387; Williams v. Wai-Ping, [2005] O.J. No. 1940 (S.C.J.), aff’d, [2005] O.J. No. 6186 (Div. Ct.); Jane Doe v. Escobar, [2004] O.J. No. 2760 (S.C.J.); Hodson v. Canadian Imperial Bank of Commerce, [2001] O.J. No. 4378 (Div. Ct.); George v. Harris, [2000] O.J. No. 1762 (S.C.J.).
[^15]: Tarion Warranty Corp. v. Brookegreene Estates Inc., [2006] O.J. No. 923 (S.C.J.); Wernikowski v. Kirkland, Murphy & Ain (1999), 1999 3822 (ON CA), 50 O.R. 124 (C.A.).
[^16]: Hudson's Bay Company v. White, [1997] O.J. No. 307 (Gen. Div.).
[^17]: Bazley v. Curry, 1999 692 (SCC), [1999] 2 S.C.R. 534.
[^18]: 2014 SCC 71.
[^19]: Garland v. Consumers' Gas Co., 2004 SCC 25, [2004] 1 S.C.R. 629.
[^20]: Yaiguaje v. Chevron Corp, 2018 ONCA 472; Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 1996 7979 (ON SC), 28 O.R. (3d) 423 (Gen. Div.), affd [1997] O.J. 3754 (C.A.) Kosmopoulos v. Constitution Insurance Co. of Canada, 1987 75 (SCC), [1987] 1 S.C.R. 2.
[^21]: Shoppers Drug Mart Inc. v. 6470360 Canada Inc. (c.o.b. Energyshop Consulting Inc./Powerhouse Energy Management Inc.), 2014 ONCA 85; Parkland Plumbing & Heating Ltd. v. Minaki Lodge Resort 2002 Inc., 2009 ONCA 256 at paras. 49-54; Kosmopoulos v. Constitution Insurance Co. of Canada, 1987 75 (SCC), [1987] 1 S.C.R. 2; Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 1996 7979 (ON SC), 28 O.R. (3d) 423 (Gen. Div.), affd [1997] O.J. 3754 (C.A.).
[^22]: Yaiguaje v. Chevron Corp, 2018 ONCA 472.
[^23]: Transamerica Life Insurance Co. v. Canada Life Assurance Co. (1996), 1996 7979 (ON SC), 28 O.R. (3d) 423 (Gen. Div.), affd [1997] O.J. No. 3754 (C.A.); Gregorio v. Intrans-Corp. (1994), 1994 2241 (ON CA), 18 O.R. (3d) 527 (C.A.); Parkland Plumbing & Heating Ltd. v. Minaki Lodge Resort 2002 Inc., 2009 ONCA 256 at paras. 49-54.
[^24]: Scotia McLeod Inc. v. Peoples Jewellers Ltd. (1995), 1995 1301 (ON CA), 26 O.R. (3d) 481 (C.A.), leave to appeal to S.C.C. refd [1996] S.C.C.A. No. 40.
[^25]: Adga Systems International Ltd. v. Valcom Ltd., 1999 1527 (ON CA), [1999] O.J. No. 27, 43 O.R. (3d) 101 (Ont. C.A.)
[^26]: Twelve Gates Capital Group Inc. v. Mizrahi Development Group (The One) Inc., 2018 ONSC 7656 at para. 25; TSSC Corporation No. 2123 v. Times Group Corporation, 2018 ONSC 4799; ACI Brands Inc. v. Aviva Insurance Co., 2014 ONSC 4559; Lobo v. Carleton University, 2012 ONSC 254; 460635 Ontario Ltd. v. 1002953 Ontario Inc., 1999 789 (ON CA), [1999] O.J. No. 4071 (C.A.).
[^27]: 2012 ONCA 498. See also Tran v. University of Western Ontario, 2014 ONSC 617, varied on other grounds 2015 ONCA 295.
[^28]: Lobo v. Carleton University, 2012 ONCA 498; Piedra v. Copper Mesa Mining Corp., 2011 ONCA 191 at para. 75; Kay Aviation v, Rofe (2001), 2001 PESCAD 7, 202 D.L.R. (4th) 683, at para 25 (P.E.I.C.A.).
[^29]: 2011 ONCA 191 at para. 75
[^30]: Tran v. University of Western Ontario, 2014 ONSC 617 at para. 31, varied on other grounds 2015 ONCA 295 at para. 17; 460635 Ontario Ltd. v. 1002953 Ontario Inc., 1999 789 (ON CA), [1999] O.J. No. 4071 at para. 8 (C.A.); Normart Management Ltd. v. West Hill Redevelopment Co. (1998), 1998 2447 (ON CA), 37 O.R. (3d) 97 at p. 102 (C.A.).
[^31]: Parna v. G. & S. Properties Ltd. (1970), 1970 25 (SCC), 15 D.L.R. (3d) 336 at p. 344 (S.C.C.); Fiorillo v. Krispy Kreme Doughnuts, Inc. (2010), 2009 29902 (ON SC), 98 O.R. (3d) 103 at paras. 66-67 (S.C.J.); Derry v. Peek (1889), 14 App. Cas. 925 (H.L.).
[^32]: D.G. Jewelry Inc. v. Cyberdiam Canada Ltd., [2002] O.J. No. 1465 at para. 41 (S.C.J.); Balanyk v. University of Toronto, 1999 14918 (ON SC), [1999] O.J. No. 2162 (S.C.J.); Corfax Benefit Systems Ltd. v. Fiducie Desjardins Inc. (1997), 1997 12195 (ON SC), 37 O.R. (3d) 50 at p. 59 (Gen. Div.).
[^33]: Global Initiatives Inc. v. Transglobe Property Management Services Ltd., 2007 50874 (ON SC), [2007] O.J. No. 4584 at para. 14 (S.C.J.).
[^34]: (1913), 1914 525 (ON CA), 31 O.L.R. 138 (App. Div.).
[^35]: 2014 SCC 8.
[^36]: 2014 SCC 7.
[^37]: Aviva et al Assessment Direct et al, (September 25, 2015) CV-13-473179 (S.C.J.).
[^38]: Pro-Sys Consultants v. Microsoft, 2013 SCC 57; Normart Management Ltd. v. West Hill Redevelopment Co. (1998), 1998 2447 (ON CA), 37 O.R. (3d) 97 (C.A.); Knoch Estate v. John Picken Ltd. (1991), 1991 7320 (ON CA), 4 O.R. (3d) 385 (C.A.); Hunt v. T & N plc, 1990 90 (SCC), [1990] 2 S.C.R. 959; Canada Cement Lafarge Ltd. v. British Columbia Lightweight Aggregate Ltd., 1983 23 (SCC), [1983] 1 S.C.R. 452.
[^39]: EnerWorks Inc. v. Glenbarra Energy Solutions Inc., 2012 ONSC 414 at para. 76.
[^40]: D.G. Jewelry Inc. v. Cyberdiam Canada Ltd., [2002] O.J. No. 1465 at para. 34 (S.C.J.); J.G. Young & Sons Ltd. v. TEC Park Ltd., [1999] O.J. No. 4066 at paras. 9-10 (S.C.J.).
[^41]: Tran v. University of Western Ontario, 2014 ONSC 617 at para. 31, varied on other grounds 2015 ONCA 295; Robinson v Medtronic Inc., 2009 56746 (ON SC), [2009] O.J. No. 4366 at para. 106 (S.C.J.); Mosher v. Ontario, [2004] O.J. No. 5412 (S.C.J.); Normart Management Ltd. v. West Hill Redevelopment Co. (1998), 1998 2447 (ON CA), 37 O.R. (3d) 97 at p. 104 (C.A.); H.A. Imports of Canada Ltd. v. General Mills (1983), 1983 1722 (ON SC), 42 O.R. (2d) 645 at pp. 646-47 (H.C.J.).