Court File and Parties

COURT FILE NO.: CV-21-00659880 DATE: 20210531

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LINEHAUL LOGISTICS INC. AND: QUICK STEP LOGISTICS INC.

BEFORE: Mr. Justice Chalmers

COUNSEL: J. Lo Faso for the Applicants

HEARD: May 31, 2021

Endorsement

[1] The Applicant seeks to schedule a date for the hearing of an Application. The matter was submitted to short motion triage. The request was rejected because there was no agreement with the Respondent with respect to the timetable. The Applicant was also advised that a claim for damages cannot be made in an Application.

[2] The case conference took place today. The Applicant has not yet served the Notice of Application and as a result no one appeared on behalf of the Respondent.

[3] The case involves damage to the Applicant’s trucks. It is alleged that the trucks were in the possession or control of the Respondent at the time of the damage. The Applicant seeks damages in the amount of $120,000 for the cost to repair the trucks along with damages for loss of income.

[4] The Applicant states that he is proceeding under R. 14. 05(3)(h) on the basis that it is unlikely that there will be any material facts in dispute. Counsel concedes that he does not know the position that may be taken by the Respondent. He expects that the Respondent may dispute the damages claim. If so, the Application could proceed to a trial of the damages issue pursuant to R. 38.10(1)(b).

[5] Rule 14.05(3)(h) allows a matter to proceed by Application if it is unlikely that there are any material facts not in dispute. Although this Rule has been liberally construed to permit Applications, the rule is not limitless. The rule must be read with R. 14.02 which provides that every proceeding shall be by way of Action, except where a statute or the Rules allow otherwise.

[6] Here, the Applicant is seeking to recover damages allegedly caused by the fault or neglect of the Respondents. I am of the view that a proceeding to recover damages arising out of negligence or breach of contract should be brought by Action and not Application.

[7] I decline to schedule the Application.

[8] I am of the view that the proper approach is for the Applicant to proceed by Action. If there are no material facts in dispute, the Plaintiff/Applicant may then proceed with a motion for Summary Judgment. Should the parties agree, I am prepared to hear the Summary Judgment motion.

DATE: MAY 31, 2021