Court File and Parties

Court File No.: CV-19-00629052 Date: 2021-03-11 Superior Court of Justice - Ontario

Re: Serpa Automotive (2017) Corporation and Frank Serpa And: 20336644 Ontario Limited, Kapil Dilawri and Toyota Canada

Before: Mr. Justice Chalmers

Counsel: M. Buccioni for the Plaintiffs C. Shammas for the Defendants 20336644 Ontario Limited and Kapil Dilawri D. Cox for the Defendant, Toyota Canada

Heard: Videoconference

Amended Endorsement

[1] The Defendants bring separate motions seeking a dismissal of the Plaintiffs’ action. Toyota Canada (“Toyota”) seeks an order pursuant to R. 21 of the Rules of Civil Procedure striking the Plaintiffs’ claim on the basis that even assuming the facts pled to be true, the causes of action have no reasonable prospect of success. 20336644 Ontario Limited and Kapil Dilawri (the “Dilawri Defendants”) seek an order pursuant to R. 21 of the Rules of Civil Procedure striking the Plaintiffs’ claim because another proceeding is pending in Ontario between the same parties and in respect of the same subject matter.

[2] The Plaintiffs requested an adjournment of the motion brought by Toyota. The Plaintiffs are proceeding with a motion for leave to amend the Statement of Claim. The motion is scheduled for June 15, 2021, before a Master. The Plaintiffs argue that if leave is granted, the amended claim will address some if not all of the issues raised in the Toyota Motion. The Plaintiffs argue that there is no prejudice to Toyota if the matter is adjourned.

[3] Toyota argues that even if leave is granted to amend the claim in accordance with the draft amended claim, its motion will continue to be necessary. Counsel states that in the draft amended claim the Plaintiff proposes to add a claim for intentional interference with economic relations. Although the proposed draft responds to some of the issues in its motion, it does not withdraw the claims which Toyota says disclose no reasonable cause of action.

[4] The Plaintiff does not request an adjournment with respect to the motion brought by the Dilawri Defendants. He states that the proposed amendments do not directly relate to the claim against Dilawri. Counsel for the Dilawri Defendants was also prepared to proceed with the motion today.

[5] The motion brought by the Dilawri Defendants was to be heard at the same time as the Toyota motion. The parties agree that there is value in having the motions heard at the same time. Both motions involve the same parties, and the same basic underlying facts. Both require a consideration of the sufficiency of the pleadings. For reasons of judicial economy, the parties had intended that the motions be heard together.

[6] I adjourn the motion brought by Toyota. I am satisfied that there is little point in proceeding with a motion to strike a pleading pursuant to R. 21 when the Plaintiff has a pending motion for leave to amend the claim. The motion is scheduled to be heard on June 15, 2021. The parties have co-operated with respect to a timetable. I am satisfied that there is no prejudice to Toyota.

[7] The adjournment is at the request of the Plaintiff. Toyota is entitled to its costs thrown away for today. I fix costs thrown away in the amount of $1,000 inclusive of counsel fee, disbursements and HST. The costs are payable by the Plaintiffs to Toyota within 30 days of the date of this endorsement.

[8] I am also satisfied that the motions brought by Toyota and the Dilawri Defendants are be heard at the same time. Although the motions involve different arguments, both involve the same pleadings, and underlying facts. If heard together there will be no duplication of time for the parties in preparing for the motions and for the judge hearing the matters. There is no prejudice to the Dilawri Defendants if the motion is adjourned. Neither party requested the adjournment. I reserve the costs of today to the hearing of the motion.

[9] I adjourn both motions to August 3, 2021. I am seized and I will hear both motions.

[10] All materials have been filed for the motions. There may be a need to file supplementary materials or factums following the results of the motion for leave to amend. The additional materials will be filed in accordance with the Rules. If the parties require further direction or a timetable for the motions, they may request a further case conference before me.

Date: March 11, 2021