2020 ONSC 605
COURT FILE NO.: CV-18-00078398-0000
DATE: 20200128
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: OTTAWA-CARLETON STANDARD CONDOMINIUM CORPORATION NO. 977, Plaintiff
AND
SOHO CHAMPAGNE CONDOMINIUMS INC. c.o.b. 2222160 ONTARIO INC., OTTAWA-CARLETON STANDARD CONDOMINIUM CORPORATION NO. 986, OTTAWA-CARLETON STANDARD CONDOMINIUM COFPORATION NO. 995, 2122313 ONTARIO INC. c.o.b. CHAMPAGNE RESIDENCES INC., BRUCE MCMAHON, BRUCE C. GREENBERG, SHAUNA PETTIT AND JASON RYAN, Defendants
BEFORE: Madam Justice Heather J. Williams
COUNSEL: Rodrique Escayola and Graeme Macpherson for the Plaintiff
Shawn O’Connor for the Defendants McMahon, Greenberg, Pettit and Ryan
HEARD: December 19, 2019
ENDORSEMENT
[1] The moving parties are the four individual defendants, Bruce McMahon, Bruce C. Greenberg, Shauna Pettit and Jason Ryan.
[2] Their notice of motion, which stated that the motion would be heard on December 19, 2019, was served on August 12, 2019.
[3] The relief sought was:
(i) to strike the claim against Mr. Ryan and all but certain paragraphs of the claim against Mr. Greenberg on the basis that the claims against them were statute-barred;
(ii) to strike certain paragraphs of the claim against all four individual defendants on the basis that the paragraphs did not disclose a cause of action known to law; and
(iii) to strike other paragraphs of the claim against all four individual defendants on the basis that the facts are “alleged to have occurred prior to January of 2016, more than two years prior to the commencement of this action.”
[4] The moving parties served their factum on December 10, 2019.
[5] That same day, December 10, 2019, the plaintiff amended its statement of claim.
[6] The moving parties’ motion confirmation form dated December 16, 2019 said that the motion would proceed on December 19, 2019 on the basis of a hearing of the following issues only:
- (a) Does the amendment of paragraph 54 withdraw an admission made in the response to demand for particulars by alleging a time period in the amendment which is subsequent to the time period in the particulars?
(b) If so, should leave to amend be granted?
Does the amended statement of claim set out the essential allegations for a claim of negligent misrepresentation against the individual defendants?
Is the moving parties (sic) entitled to costs thrown away by reason of the plaintiff’s amendments to plead discoverability after delivery of the moving parties’ factum?
Issue #1: Does the amendment to paragraph 54 withdraw an admission?
The position of the moving parties
[7] When the plaintiff amended its statement of claim on December 10, 2019, it amended paragraph 54 to state that certain conduct of the defendants, or some of them, took place “at all relevant times and in particular (without being limited to) in the fall of 2017 and early part of 2018.”
[8] The moving parties say that in April 2019, when the plaintiff responded to demands for particulars served on behalf of the moving parties in March 2019, the plaintiff had stated that the conduct described in paragraph 54 took place earlier than the plaintiff was now alleging in its amended statement of claim.
[9] The moving parties argue that the timeframe within which the conduct is alleged to have taken place is relevant to their limitation period defences: the earlier the conduct is alleged to have taken place, the stronger the defences.
[10] The moving parties argue that the earlier dates in the responses to the demands for particulars, which were better for their limitation defences, were admissions by the plaintiff and cannot be replaced with the later dates in the absence of a motion to withdraw admissions.
Analysis and conclusion
[11] I do not accept the moving parties’ argument.
[12] I do not agree that the plaintiff, through the amendment to paragraph 54 of its statement of claim, withdrew any admissions.
[13] Rule 51.05 of the Rules of Civil Procedure deals with the withdrawal of admissions. It says that an admission made in response to a request to admit, a deemed admission under rule 51.03 or an admission in a pleading may be withdrawn on consent or with leave of the court.
[14] In Griffiths v. Canaccord Capital Corp.,2005 CanLII 42485 (ON SCDC), [2005] O.J. No. 4897 (Ont. Div. Ct.), the Divisional Court adopted the definition of Master MacLeod, as he then was, in Hughes v. Toronto Dominion Bank, [2002] O.J. No. 2145, when he described an admission as being “an unambiguous concession to the opposing party” as well the then-Master’s view that “such an admission would be rare in a statement of claim”.
[15] “An admission contemplated by rule 51 occurs when the plaintiff admits that a set of facts posed by the defendant is correct. An admission must be an intentional concession to the other side and not simply the result of the words chosen in the claim. A factual pleading made in error cannot fairly be characterized as a deliberate admission.” (Yang (Litigation Guardian of) v. Simcoe (County), [2011] O.J. No. 4773 (Ont. S.C.J.) at para. 45.)
[16] The moving parties argue that the plaintiff made admissions in its responses to the moving parties’ demands for particulars, when it attached dates to the conduct alleged in paragraph 54 of the statement of claim. I find that it did not. These dates were merely facts pleaded by the plaintiff, which the plaintiff was entitled to update, revise or correct. Leave of the court was not required to change these dates or to otherwise amend the statement of claim in December 2019; pleadings were not closed at the time.
Issue #2: Does the amended statement of claim set out the essential allegations for a claim of negligent misrepresentation against the individual defendants?
The notice of motion
[17] In the relief sought in their notice of motion, the moving parties did not request an order to strike the allegations of negligent misrepresentation against them.
[18] In the grounds listed for the motion, however, they stated that the pleading, as particularized, alleges that misrepresentations were made, without providing the particulars required by Rules 25.06(7) and (8.)
[19] In their factum, the moving parties listed the following as one of the issues:
“Should the allegations of negligent misrepresentation against all the individual defendants be struck out for failing to set out the full particulars of the misrepresentations alleged to have been made by the individual defendants as required by Rule 25.06(8)?”
[20] I have already noted that the misrepresentation issue was listed on the moving parties’ motion confirmation form.
[21] The issue was canvassed in paragraphs 42 and 43 of the moving parties’ factum and in paragraphs 71, 72 and 73 of the plaintiff’s responding factum.
[22] Although the plaintiff mentioned in oral argument that the relief had not been requested in the notice of motion, the issue was argued fully by both parties.
[23] I am satisfied that the plaintiff was on notice of this issue and that the issue was properly before me. In the circumstances, I consider the moving parties' failure to have requested this relief to be an irregularity. Under Rule 2.01(1)(a), I will treat the notice of motion as though it has been amended to request an order striking the misrepresentation claim against the individual defendants.
The positions of the parties
[24] The moving parties argue that when negligent misrepresentation is alleged, the following particulars must be pleaded: the alleged misrepresentation; when, where, how, by who and to whom it was made; its falsity; the inducement; the intention that the plaintiff should rely on it; the plaintiff’s alternation of its position in reliance on the misrepresentation; and the resulting loss or damage to the plaintiff. (Horfil Holdling Corp. v. Queen’s Walk Inc., 2019 ONCA 1381, at paras. 24-28.)
[25] The moving parties argue that neither the statement of claim nor the plaintiff’s response to the moving parties’ demands for particulars includes the required facts.
[26] The plaintiff’s misrepresentation pleading is set out in paragraphs 82 to 86 of the statement of claim.
[27] In response to the moving parties’ demands for particulars, the plaintiff replied that “the acts described in paragraph 82-86 of the Statement of Claim were committed by some or all of the corporate defendants.”
[28] The plaintiff’s amended statement of claim did not add any additional facts to shed further light on any misrepresentations the moving parties were alleged to have made.
[29] In its factum, the plaintiff stated that all required particulars had been provided. The plaintiff argued that the alleged misrepresentations were not statements but rather silence when something should have been said. In its factum, the plaintiff explained that the alleged misrepresentations were comprised of “really a total lack of representation or disclosure over a consistent period of time, rather than particular statements made at any one time or place. It is not a case where one can point to who said what and when. No one said anything. The JUMA (Joint Use and Maintenance Agreement) was buried in an extremely complex corporate structure.”
[30] I make the following observations about the plaintiff’s claim for misrepresentation:
(i) In their response to the moving parties’ demands for particulars, the plaintiff appears to be saying that the corporate defendants, and not the individual defendants, are alleged to have committed the acts described in paragraphs 82 to 86 of the statement of claim;
(ii) The explanation for the misrepresentation claim the plaintiff provided in its factum, that, effectively, “no one said anything” is not set out in the statement of claim;
(iii) If the plaintiff’s explanation for the misrepresentation claim in its factum had been set out in the statement of claim, it would not meet the requirements for a negligent representation pleading specified in Horfil Holding, supra; saying, in effect, that someone should have said something about something at some point but didn’t, is not enough.
(iv) The required particulars for a negligent misrepresentation claim were not included in the statement of claim, the responses to the moving parties’ demands for particulars or the amended statement of claim; and
(v) The plaintiff is not asking for a further opportunity to amend its statement of claim to include the required particulars; in its factum it states that it has already provided them.
[31] Despite having had several opportunities, the plaintiff has not pleaded a sustainable claim for negligent misrepresentation against the individual defendants; to the extent that the plaintiff has pleaded a claim approaching negligent misrepresentation, it appears to be pointing to the corporate defendants.
[32] I consider it to be “plain and obvious” (Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959) that the plaintiff’s claim for negligent misrepresentation against the moving parties cannot succeed.
[33] It shall be struck.
[34] If the parties cannot agree on the mechanics of striking this claim against these defendants, which may be complicated by the out come of a motion by the corporate defendants, they may arrange to make further submissions.
Costs
[35] I have already noted that the moving parties identified one of the issues on the motion as being costs thrown away as a result of the relative timing of service of the moving parties’ factum and the plaintiff’s amended statement of claim.
[36] The parties filed costs outlines and made some preliminary submissions with respect to costs. I said that I would provide them with an opportunity to make further submissions following the release of this decision.
[37] If the parties are unable to agree on costs:
(i) The moving parties may deliver written submissions of no more than three pages in length within 14 days of the date of this decision;
(ii) The plaintiff may deliver written submissions in response of no more than three pages in length within 14 days of the date of receipt of the moving parties’ submissions;
(iii) The moving parties may deliver any reply submissions of no more than three pages in length within seven days of the date of receipt of the plaintiff’s submissions.
[38] The costs submissions may be filed by sending them to me, care of the trial coordinator.
Date: January 28, 2020
2020 ONSC 605
COURT FILE NO.: CV-18-00078398-0000
DATE: 20200128
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: OTTAWA-CARLETON STANDARD CONDOMINIUM CORPORATION NO. 977, Plaintiff
AND
SOHO CHAMPAGNE CONDOMINIUMS INC. c.o.b. 2222160 ONTARIO INC., OTTAWA-CARLETON STANDARD CONDOMINIUM CORPORATION NO. 986, OTTAWA-CARLETON STANDARD CONDOMINIUM COFPORATION NO. 995, 2122313 ONTARIO INC. c.o.b. CHAMPAGNE RESIDENCES INC., BRUCE MCMAHON, BRUCE C. GREENBERG, SHAUNA PETTIT AND JASON RYAN, Defendants
BEFORE: Madam Justice H.J. Williams
COUNSEL: Rodrique Escayola and Graeme Macpherson for the Plaintiff
Shawn O’Connor for the Defendants McMahon, Greenberg, Pettit and Ryan
ENDORSEMENT
Madam Justice H.J. Williams
Released: January 28, 2020