COURT FILE NO.: CV-19-632253
MOTION HEARD: 20200916
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: GASP Business Services Inc. carrying on business as GASP Design., Plaintiff
AND:
ARCA Design Inc. and Frank Bellini, Defendants
BEFORE: Master Jolley
COUNSEL: Paul Starkman, Counsel for the Moving Party Plaintiff
Gary Gibbs and Alex Michel, Counsel for the Responding Party Defendants
IN WRITING: 16 September 2020
REASONS FOR DECISION
[1] The plaintiff brings this motion for detailed particulars of eight paragraphs of the fourteen paragraph statement of defence which was served on 7 July 2020 (hereinafter, the “statement of defence”). It argues that the particulars are needed so that it may file a reply.
[2] For the reasons given below, this motion is dismissed.
[3] Each pleading must to contain a concise statement of the materials facts on which the party relies for its claim or defence, but not the evidence by which those facts will be proven (Rule 25.06(1)). A party is required to plead any matter on which the party intends to rely to defeat the claim of the opposite party and which if not specifically pleaded, might take the opposite party by surprise or raise an issue that has not been raised in the opposite party’s pleading (Rule 25.07(4)). Lastly, particulars are only ordered when they are necessary to enable a party to plead (Obonsawin v. Canada 2001 CarswellOnt 306 at paragraph 33, considering Rule 25.10).
[4] The plaintiff alleges that it retained the defendants to prepare a severance application of two lots into three and to design three new homes with minor variances. The application was not approved and the plaintiff alleges this was due to the defendants’ negligence and breach of contract. It seeks damages due to the alleged mismanagement and delay of the project. The defendants plead that they kept the plaintiff appraised of the design drawings and proposed variances and the plaintiff instructed the defendants to proceed on the basis of the material prepared. They deny any negligence and breach of contract and plead that they performed their services in accordance with the retainer and in keeping with industry standards.
[5] The threshold issue is whether the particulars are needed to enable the plaintiff to file a reply. In my view, they are not.
[6] I find that the particulars sought are not required for the plaintiff to understand the issues raised by the statement of defence or to plead to those issues. Nor does the defence consist of “bald assertions”, as alleged by the plaintiff. It contains sufficient detail to permit the plaintiff to reply appropriately, should it feel a reply is warranted.
[7] I provide but one example from the demand for particulars. Paragraph 6 of the statement of defence pleads:
- At all material times, the Plaintiff was kept apprised of the design drawings and proposed by-law design variances, and provided design and strategic review, input and instructions. The Plaintiff instructed ARCA to seek a number of variances for approval by the Committee of Adjustment and knew and understood and accepted that the granting of such variances was not a guaranteed process. Nonetheless, the Plaintiff understood an assumed the risk of proceeding.
[8] The plaintiff has demanded the following particulars of this paragraph:
- With respect to paragraph 6 of the Defence, full particulars of the meaning of “at all material times” including the month, year and date for beginning and end of the period. Full particulars of the allegation that “the Plaintiff was kept appraised [sic] of the design drawings and proposed by-law design variances, and provided design and strategic review, input and instructions” including when the Plaintiff was “kept appraised [sic] of” the above by the Defendants, particulars of the “design drawings” and “strategic review” allegedly provided to the Plaintiff including the dates of the drawings and what strategic review was provided and when it was provided, full particulars of the allegation that the Plaintiff “knew and understood and accepted that the granting of such variances was not a guarantee [sic] process” including when the Plaintiff was informed of such fact by the Defendants, the documents indicating the Plaintiff assumed the risk, which documents were sent to the committee of adjustment or the regulatory requirements with respect to the likelihood that the variance would be granted, which the Defendants sent to the Plaintiff or that the Defendants relied upon with respect to this issue.
[9] What the plaintiff seeks is evidence, i.e. as one example, to know by what means will the defendants prove that the plaintiff had input into the design process and the strategy to be used before the committee of adjustment. It is evident from a review of this paragraph that the particulars requested are in the nature of information that should be elicited during examinations for discovery. They are not required for the plaintiff to respond intelligently to the statement of defence, nor are they required to help define the issues to be tried or to delineate the scope of discovery. The other requests for particulars request similar evidence.
[10] The responding party shall have their costs of the motion. If the parties cannot agree on the quantum, they may file costs submissions no more than two pages in length, along with a costs outline, by September 30 with my acting assistant trial co-ordinator, Ms. Mahase at Jennifer.Mahase@ontario.ca.
Master Jolley
Date: 18 September 2020