Court File and Parties

COURT FILE NO.: CV-19-631800

MOTION HEARD: 20200730

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Setter Capital Inc., Plaintiff

AND:

Bridge Capital Inc., et al., Defendants

BEFORE: Master Abrams

COUNSEL: V. Strashko, for the Plaintiff

G.S. Kler, for the Defendants

HEARD: July 20, 2020 and July 30, 2020

REASONS FOR DECISION

[1] On July 20/20, the plaintiff’s motion for further and better particulars was to be argued. On the return of the motion, Mr. Strashko appeared both as counsel and as witness on his own affidavit. The propriety of his doing so was called into question. The motion was adjourned to July 30/20, in the circumstances.

[2] Mr. Strashko chose to withdraw his affidavit; but, no new affidavit from a representative of the plaintiff (or anyone else) was filed.

[3] On a motion for particulars, the onus is on the party seeking particulars to satisfy the court that the particulars sought are both necessary and not within its knowledge or that “the allegations [sought to be particularized] are so general and vague that the need for particulars is evident” (Ontario v. Rothmans Inc., 2016 ONSC 59, at para. 14). Here, a balance must be struck between “particulars [required] to limit the generality of the allegations and to define the issues to be tried” and an attempt to probe a party’s evidence with a view to “learn[ing] the knowledge of the [defendants]” (Ontario v. Rothmans Inc., supra, at para. 14).

[4] In the case at bar, particulars have already been provided. What is now being sought are further and better particulars.

[5] Dealing with each of the demands, seriatim, my rulings are as follows:

1. The defendants have agreed to provide the following answer (this without resiling from their position that their plea was already sufficiently particularized): Gurdeep Gill and Philip Leishman are the two partners, operating under the trade name Brant Street Capital. The partnership was formed in September of 2018. Gurdeep Gill was the person who originally founded Brant Street Capital. He was joined, a few months after the founding of the business, by Philip Leishman.

Nothing more is now required of them. With this answer, the plea will be sufficiently particularized.

2. The answers to Demand #1 (as further particularized above) and to Demand #2, when read with paragraph 69 of the statement of defence, are sufficient to enable the plaintiff to plead. Who hired Mr. Brar, as asked, is a matter for discovery.

3./4. The defendants have agreed to confirm (this without resiling from their position that their plea was already sufficiently particularized) that the allegation at paragraph 6 of the statement of defence means that ‘Brant Street Capital Ltd. has no business function, save as a holding company’.

Nothing more is now required of them. With this answer, the plea will be sufficiently particularized.

5. The plea is not defective on its face and there is nothing before me to persuade me that the information sought is necessary to permit the plaintiff to plead. Whether and where the trade name is registered can be explored at discovery.

6. In the course of arguing this motion, counsel for the defendants confirmed that the description of Brant Street Capital as a “company”, in Mr. Pinkus’ affidavit, is simply a description of what Brant Street Capital is, in every-day parlance. Brant Street Capital, he explained, is a business--not a corporation. That information is in keeping with the response to the demand for particulars and is sufficient for the purposes of pleading. There is no inconsistency that needs to be addressed by the defendants to permit the plaintiff to plead.

7. This request for particulars has been withdrawn.

8./9. In the course of argument, it became clear that the plaintiff and defendants disagree as to how Messrs. Gill and Leishman were paid. That does not mean that further particulars are required by the plaintiff for it to be able plead. The pleas at issue are not defective on their face; there is no evidence before me that the particulars are not within the knowledge of the plaintiff; and, in any event, how/when/in what amounts these two defendants were compensated by the plaintiff must necessarily be within the knowledge of the plaintiff.

10./11. Without resiling from their position that further particulars are not required, the defendants will clarify that the reference to “which he forced” is a reference to Peter McGrath and the fact that he is alleged to have dictated terms. This clarification, read together with the particulars already furnished, is sufficient to permit the plaintiff to plead.

12. The source of the quotation used by the defendants is something that is not required to permit the plaintiff to plead. It is a question more properly put to a party on discovery.

13.-16. The particulars already provided, when read together with the pleas in the statement of defence, are sufficient to permit the plaintiff to plead. There is no evidence before me of any limitation on the part of the plaintiff, in this regard.

17. Nothing more is required. The response provided to the original demand for particulars is sufficient and sets out the timeline at issue, as requested.

[6] The plaintiff posits that the particulars it seeks will provide information “as to the significance and reasoning for…statements”. But, these are issues for discovery. And while it is true that a supporting affidavit is not required on a motion where allegations are so general and devoid of detail that the need for particulars is patently obvious, this is not such a motion. The responses already given and to be given--when read with the pleadings and when looked at contextually (having regard to the relationship between the plaintiff and the defendants)--are, on their face, sufficient. “Particularity…does not mean that the plaintiff is required to have perfect knowledge nor that the plaintiff may be interrogated about the evidentiary basis for its claims” (Prior v. Sunnybrook and Women’s College Health Sciences Centre, [2006] O.J. No. 2070, cited with approval in Lebovic Enterprises Limited v. Negru, 2007 CanLII 695 (ONSC), at para. 9).

[7] The responses that the defendants have agreed to provide are to be provided to the plaintiff by August 21/20. The plaintiff shall have until September 3/20 to deliver any reply pleading.

[8] Failing agreement as to the costs of the motion, I may be asked to decide the issue. In this regard, counsel may contact me through my assistant, Ms. Mahase: jennifer.mahase@ontario.ca.

August 10, 2020 Original Signed by: Master Abrams