COURT FILE NO.: CV-19-625513

MOTION HEARD: 20201020

REASONS RELEASED: 202101­20

SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

3 DOGS DAYCARE INC.

Plaintiff

• and-

DOGTOPIA ENTERPRISES CANADA INC., PETER HERBERT THOMAS, EASTERN CANADA DOGGY CARE LTD., MARK SONIK and ANITA SAMADIAN

Defendants

BEFORE: MASTER M.P. McGRAW

COUNSEL: D. J. MacKeigan E-mail: dan.mackeigan@siskinds.com -for the Defendants

A. Boudreau E-mail: aboudreau@sotosllp.com -for the Plaintiff

REASONS RELEASED: January 20, 2021

Reasons For Endorsement

I. Introduction

[1] These are motions by the Defendants to compel the Plaintiff to deliver a further and better response to the Defendants’ Demand For Particulars dated September 26, 2019 (the “Demand”) and to strike certain paragraphs of the Plaintiff’s Fresh As Amended Statement of Claim issued on July 23, 2020 (the “Amended Claim”).

[2] The motions arise from a contentious franchise dispute involving allegations of conspiracy. The Defendants’ 13-page Demand contains 57 paragraphs and a total of 75 demands. The Defendants also seek to strike 41 paragraphs of the Plaintiff’s 124-paragraph 32-page Amended Claim. Notwithstanding significant case management over 3 case conferences, responses to some of the demands and amendments to the Statement of Claim, the parties have been unable to finalize pleadings and proceed to documentary and oral discoveries leaving this litigation unnecessarily stalled.

II. Background

[3] The Plaintiff, 3 Dogs Daycare Inc. (“3 Dogs”) is a former franchisee of the Defendant Dogtopia Enterprises Canada Inc. (“DECI”). DECI is the Canadian franchisor of the “Dogtopia” franchise system which offers dog daycare, boarding and grooming with over 125 locations throughout the United States and Canada including 8 in Ontario. Robert Heaphy (“Rob”) and his wife Lisa Heaphy (“Lisa”, together, the “Heaphys”) are the principals of 3 Dogs.

[4] The Defendant Eastern Canada Doggy Care Ltd. (“ECDC”) is a regional developer for DECI which recruits and supports Dogtopia franchisees in Ontario. ECDC owned and operated 4 Dogtopia locations in Ontario and is amalgamated with DECI. The Defendant Mark Sonik (“Mark”) is the Eastern Canada Sales Director for DECI and an officer and director of ECDC. The Defendant Anita Samadian (“Anita”) is Mark’s wife who, through her corporation, was an independent consultant for ECDC. The Defendant Peter Herbert Thomas (“Peter”) resides in Arizona and is the President and a director of DECI and a director and officer of ECDC.

[5] The Plaintiff entered into a franchise agreement with DECI dated October 7, 2016 (the “Agreement”) for the operation of a 3 Dogs franchise located in Burlington, Ontario (“Dogtopia Burlington”). The Heaphys personally guaranteed 3 Dogs’ obligations under the Agreement. The Plaintiff also entered into a lease (the “Lease”), personally guaranteed by Rob, for the Dogtopia Burlington premises in Burlington (the “Premises”). Pursuant to the Agreement, the Plaintiff entered into a Conditional Agreement of Lease to permit ECDC to take over the Lease in the event of abandonment or termination.

[6] 3 Dogs experienced significant financial difficulties from the very beginning which jeopardized its ability to operate. The Plaintiff claims that it was in significant debt by the time of its grand opening due to initial costs to become a franchisee, outfitting the Premises, low initial customer volume and unanticipated additional costs.

[7] The Plaintiff alleges that the Defendants conspired to carry out a plan referred to as the “Burlington Takeover” by which they manufactured grounds to terminate the Agreement and take over operation of Dogtopia Burlington. Among other things, the Plaintiff alleges:

i.) Mark and Anita prevented the Heaphys from communicating with and attending training at Dogtopia’s head office in Phoenix, Arizona;

ii.) the canine handling and management training provided by ECDC was “dangerously substandard”, run by trainers who abused dogs, did not provide the Plaintiff with the tools to meet its franchisee obligations, and put dogs at Dogtopia Burlington at risk all with the hope that the Heaphys would be unable to operate, sell their location and/or inadvertently cause an injury or accident so serious that DECI would have legitimate grounds to terminate the Agreement;

iii.) the Brophys witnessed animal abuse at other Dogtopia locations including boarded dogs becoming ill; blood on walls from dog fights; staff deliberately traumatizing dogs; and accepting sexually intact dogs into Dogtopia locations and “open play” with other dogs;

iv.) after Anita agreed to hire a manager for Dogtopia Burlington, an ECDC manager working at the Mississauga Dogtopia location told staff that the hiring was part of the “Burlington Takeover”;

v.) efforts to complete the “Burlington Takeover” intensified after Plaintiff’s counsel sent a letter outlining the Heaphys’ concerns;

vi.) the Plaintiff was forced to hire a manager chosen by DECI and other staff who acted as “spies” for DECI and ECDC who were instructed to look for anything that could be used to terminate the Agreement including making secret recordings of conversations with the Heaphys and were required to make complaints about the Heaphys abusing dogs, violating Dogtopia policies, interactions with staff and the cleanliness of the Premises;

vii.) the Defendants created fake social media accounts to post negative reports about Dogtopia Burlington.

[8] The Plaintiff claims that over a period of approximately 6 months, DECI, ECDC and their principals manufactured evidence and documented incidents which they believed was sufficient to terminate the Agreement. The Plaintiff further alleges that DECI was aware that the Heaphys had a right to rescind the Agreement pursuant to the Wishart Act (Ontario) due to DECI’s failure to provide a compliant franchise disclosure document. As the Plaintiff was required to exercise its statutory right of rescission within 2 years of signing the Agreement, the Plaintiff alleges that DECI purposely waited until after this two-year period had lapsed to complete the “Burlington Takeover” and terminate the Agreement.

[9] On October 19, 2018, approximately 2 weeks after the expiration of the statutory rescission period, DECI assigned its rights under the Agreement to ECDC. Just after midnight on October 20, 2018, Mark and Anita entered the Premises with a locksmith and changed the locks then issued a Notice Pursuant to the Trespass to Property Act to 3 Dogs and the Heaphys to prohibit them from entering the Premises. Later on October 20, 2018, ECDC’s counsel delivered a Notice of Termination purporting to terminate the Agreement for cause. The Plaintiff submits that the Defendants had no legal right to enter or take possession of the Premises and that ECDC had no basis to terminate the Agreement, the grounds for which were fabricated. Although the Heaphys acknowledge that 3 Dogs had approximately $1 million in debt at the time of termination, they claim that it was current on all payments under the Agreement and the Lease.

[10] The grounds cited by ECDC for termination of the Agreement included, among other things: i.) abuse and mistreatment of dogs in the care of 3 Dogs (captured on live video stream on the Dogtopia website available for viewing by customers and the general public) and jeopardizing the reputation and goodwill of Dogtopia; ii.) mistreatment of employees and failing to operate in a manner safe for employees; and iii.) failure to conform with the Operating Standards Manual and other policies and procedures and putting staff, customers and dogs at risk by allowing the Heaphys’ own aggressive and dangerous dogs into open play resulting in injuries to customers, dogs and staff; accepting and allowing sexually intact dogs for day care and in open play and dogs whose immunizations were not current; and failing to quarantine sick dogs; and iv.) promoting and recommending a trainer who competed with the franchise.

[11] The Plaintiff commenced this action by Statement of Claim issued on August 14, 2019. As set out in the Amended Claim, the Plaintiff claims $5,000,000 for breach of contract; a declaration that the Agreement was wrongfully terminated; $500,000 from DECI and ECDC for breach of the duty of fair dealing pursuant to s. 3 of the Wishart Act; $3,000,000 for conspiracy; damages in the amount of the market value of converted assets as at October 20, 2018 and/or the market value as at the end of trial for the detention of the converted assets from October 20, 2018 to the end of trial or alternatively, disgorgement damages based on based on ECDC’s gain of the coverted assets; damages in an amount to be determined for unjust enrichment by ECDC; $250,000 in punitive damages; and declarations that Peter is personally liable for the acts of DECI and ECDC and Mark is personally liable for the acts of ECDC.

[12] On September 26, 2019, the Defendants delivered the Demand and the Request to Inspect. The Plaintiff provided a Response to the Request to Inspect on October 3, 2019 and a Response to the Demand For Particulars on October 7, 2019 (the “Response”).

[13] This matter first came before me on a telephone case conference on December 20, 2019. The Defendants sought to schedule a 3-4 hour motion with respect to both the Demand and the Request to Inspect. The Plaintiff had already agreed that Defendants’ counsel could inspect the documents at any time however, counsel had not done so. The parties were directed to revisit their discussions with a view to resolving the disputed issues so that pleadings could be finalized and documentary and oral discoveries could proceed.

[14] Another telephone case conference was held on February 14, 2020. No progress had been made on the particulars and Defendants’ counsel had still not attended to inspect the documents. I remained unconvinced that the parties had exhausted their efforts to resolve and/or narrow the disputed issues. The parties were directed to have further discussions and to consider whether amendments to the Statement of Claim would assist in resolving the motion so that discoveries could proceed. Another telephone case conference was scheduled for April 22, 2020, however, it did not proceed due to the suspension of regular court operations as a result of the COVID-19 pandemic.

[15] In the interim, the Plaintiff answered more particulars and delivered the Amended Claim on July 23, 2020 and Defendants’ counsel attended at Plaintiff’s counsel’s office to inspect the documents. This motion was scheduled during a telephone case conference on August 13, 2020.

III. The Law and Analysis

Pleadings and Demands For Particulars

[16] Rule 25.06 states:

“(1) Every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved.

(2) A party may raise any point of law in a pleading, but conclusions of law may be pleaded only if the material facts supporting them are pleaded.

(4) A party may make inconsistent allegations in a pleading where the pleading makes it clear that they are being pleaded in the alternative.

(7) The effect of a document or the purport of a conversation, if material, shall be pleaded as briefly as possible, but the precise words of the document or conversation need not be pleaded unless those words are themselves material.

(8) Where fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading shall contain full particulars, but knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred.”

[17] The contemporary approach to pleadings was explained by Flynn J. in Sleep Clinic London Inc. v. Merchea, 2012 ONSC 3004, [2012] O.J. No. 2471:

“22 Long gone are the days when pleadings motions could be approached in an overly technical manner. Generally speaking, a party should be at liberty to craft a pleading in the manner it chooses, providing that the Rules of pleadings are not violently offended and there is no prejudice to the other side.”

[18] In assessing the adequacy of pleadings under Rules 25.06 and 25.11, the purpose of the rules must be considered. Pleadings must:

i.) define clearly and precisely the questions in controversy between the litigants;

ii.) give fair notice of the precise case which is required to be met and the precise remedy sought; and

iii.) assist the court in its investigations of the truth of the allegations made. (See National Trust Co. v. Furbacher, [1994] O.J. No. 2385 at paras. 9 and 10)(Ontario Consumers Home Services v. Enercare Inc., 2014 ONSC 4154; Balanyk v. University of Toronto, 1999 14918 (ON SC), at para. 27).

[19] In Jacobsen v. Skurka, (2015) 2015 ONSC 1699, 125 O.R. (3d) 279, Perell J. described the distinction in Rule 25.06(1) between “material facts” and “the evidence by which those facts are to be proved”:

[43] Rule 25.06(1) draws a distinction between the "material facts" and "the evidence by which those facts are to be proved". [page291] A material fact may itself be relevant evidence and particulars of material facts may also be relevant evidence, so the distinction drawn in the rule is not a litmus test clear differentiation, but the essence of the directive of rule 25.06 is clear enough that a pleading is not the place for a party to lead relevant evidence and to present argument to prove his claim or defence.

[44] A pleading should not describe the evidence that will prove a material fact; pleadings of evidence may be struck out: Sun Life Assurance Co. of Canada v. 401700 Ontario Ltd. (1991), 1991 7050 (ON SC), 3 O.R. (3d) 684, [1991] O.J. No. 915 (Gen. Div.). The difference between pleading material facts and pleading evidence is a difference in degree and not of kind: Toronto (City) v. MFP Financial Services Ltd., [2005] O.J. No. 3214, [2005] O.T.C. 672 (Master), at para. 15. What the prohibition against pleading evidence is designed to do is to restrain the pleading of facts that are subordinate and that merely tend toward proving the truth of the material facts: Grace v. Usalkas, [1959] O.W.N. 237 (H.C.J.); Phillips v. Phillips (1878), 4 Q.B.D. 127 (C.A.). Even a pleading of an admission, which is a type of evidence, may be struck out: Davy v. Garrett (1878), 7 Ch. D. 473 (C.A.); Sun Life Assurance Co. of Canada v. 401700 Ontario Ltd., supra.”

[20] Rule 25.10 states:

“Where a party demands particulars of an allegation in the pleading of an opposite party, and the opposite party fails to supply them within seven days, the court may order particulars to be delivered within a specified time.”

[21] The law of particulars can be summarized as follows:

i.) an order for particulars is discretionary and the court must make the order which is just, reasonable and fair in the circumstances of each case;

ii.) the party seeking particulars bears the onus of establishing that the particulars are not within their knowledge and are necessary to enable the party to plead;

iii.) the court should ask itself in reference to the whole of the statement of claim: “are there sufficient facts present to formulate a defence”?

iv.) any determination of the minimum level of material fact disclosure will vary depending on the kind of action and pleading under review including the relief sought;

v.) while recognizing the need for defendants to understand the case they have to meet, the courts take a realistic and pragmatic approach when considering whether to order particulars recognizing that not every claim is capable of being pleaded with the same degree of particularity and that subsequent stages in the litigation process may also function to clarify and narrow the issues;

vi.) Rule 25.06(1) requires that a pleading be a concise statement of the material facts, not all of the material facts;

vii.) Rule 25.10 requires that a claim be sufficiently particularized in order to allow the defendant to understand the case it is to meet and to provide an adequately prepared statement of defence; unparticularized pleadings which work against the purpose of pleadings – to define the issues between the parties as precisely as possible – will not be permitted. Particulars should be considered in light of the principle that each party is entitled to know the case that is intended to be made against it at trial and that particulars help to ensure that litigation is conducted fairly, openly and without surprise;

viii.) if a specific fact is not set out, but can be properly inferred from other statements in the pleading, that is sufficient for the purposes of a statement of claim;

ix.) particulars also help to limit the generality of allegations, define and narrow the scope of issues to be decided, guide the discovery process and help to streamline the litigation process, however, they are not akin to an examination for discovery which should not be seen as a substitute for particulars but nor should a demand for particulars be used to compel a plaintiff to disclose evidence or the legal nature of its argument;

x.) it is especially important that the court adopt a realistic and pragmatic approach at the pleadings stage in complex litigation to ensure that litigation is not unduly delayed;

xi.) particulars should not be permitted to turn into a delay tactic or a substitute for what can be obtained through a request to inspect documents or oral and documentary discovery, otherwise, litigation will be stonewalled at an early stage through excessive particularization;

xii.) to strike a balance between competing considerations in large and complex litigation, case management judges must have some “elbow room” to keep the litigation moving forward and prevent it from getting bogged down in interlocutory matters, such that litigation management orders can sometimes be more effective than particulars in providing an efficient structure to determine a claim;

xiii.) a court should not order a party to provide particulars that are in the nature of evidence because to do so would offend Rule 25.06(1);

xiv.) Rule 25.06(1) mandates a minimum level of material fact disclosure which if not reached calls for a motion to strike the pleading as irregular, not a motion for particulars. It is only where the minimum level of material fact disclosure has been reached that the pleading becomes regular and thereafter the remedy of particulars under Rule 25.10 becomes available;

xv.) if a party is limited in terms of the detail it can include in its pleading because it does not have access to the books and records of the other party, this is an important factor in determining the extent of particulars that may be required (1440195 Ontario Inc. v. 1440194 Ontario Inc., [2016] O.J. No. 2220 at paras. 10-12; Ontario v. Rothmans Inc., [2016] O.J. No. 253 at paras. 12-16; 84; Taylor v. Canada Cartage Systems, 2018 ONSC 617 at para. 21; Copland v. Commodore Business Machines Ltd., 1985 2190 (ON SC), [1985] O.J. No. 2675 at para. 17).

[22] Consistent with a flexible, realistic and pragmatic approach to pleadings and particulars, in exercising its discretion the court must also consider Rule 1.04(1) which requires the court to liberally construe the rules to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

[23] A.J. O’Marra J. described the law of pleadings as it relates to civil conspiracy in Ontario Consumers:

“21 To allege unlawful conspiracy material facts must be pleaded in support of the following elements:

a)The defendants must act in combination, that is, in concert, by agreement or with a common design;

b)Each defendant's conduct must be unlawful and in furtherance of the conspiracy;

c)The defendants' acts must be directed towards the plaintiff;

d)The defendants should have known that in the circumstances injury to the plaintiff would likely result; and

e)Each defendant's conduct causes injury to the plaintiff.

22 To make out a claim for conspiracy to injure the plaintiff must plead material facts as outlined with respect to an unlawful conspiracy. However, the overt act(s) of each defendant need not be unlawful, but the predominant purpose of each defendant must be to inflict harm on the plaintiff as noted by Moldaver J.A. (as he then was) in Harris v. Glaxosmithkline Inc., 2010 ONCA 872 at para. 39.

23 The defendant's predominant purpose must be to inflict harm on the plaintiff. It is not enough if the harm is the collateral result of acts pursued predominantly out of self-interest. The focus is on the actual intent of the defendant and not the consequences that the defendant either realized or should have realized would result.

24 To plead civil conspiracy a statement of claim must state with precision and clarity material facts as to:

a)the parties to the conspiracy and their relationship of one to the other;

b)the agreement between or amongst the defendants to conspire, including particulars as to the time, place and mode of agreement;

c)the precise purpose or object of the conspiracy;

d)the overt acts alleged to have been done by each of the alleged conspirators in pursuance and furtherance of the conspiracy, including the time, and place and nature of the acts; and

e)the injury and damage caused to the plaintiff as a result of conspiracy.

25 Conspiracy is an intentional tort and a serious allegation as such the material facts must be pleaded with heightened particularity. In Ballard v. Stavro, the court stated at para. 31:

Under Rule 25, a statement of claim must contain a concise statement of all the material facts on which a party relies for the claim. The issues in dispute must be sufficiently identified as to enable the parties to plead a response without having to speculate. Where this minimum level of disclosure is not satisfied, the pleading is irregular. In certain circumstances, it may be appropriate to grant leave to amend or order that particulars be granted. In others the pleading is ordered to be struck. In an action such as this where there are serious allegations of conspiracy, the level of disclosure of material facts is required to be higher.

26 It is insufficient to simply "lump some or all of the defendants together into a general allegation that they conspired". (See Penson Financial Services Canada Inc. v. Connacher, [2010] O.J. No. 2114 at para. 15; Normart Management Ltd. (1998), 1998 2447 (ON CA), 37 O.R. (3rd) 97 (OCA), and J.G. Young and Son Ltd. v. Tec Park Ltd., [1999] O.J. No. 4066 at 451. )

27 Further, it was noted in J.G. Young and Sons, that the plaintiff is under a heavy burden as a consequence of seeking to plead such a serious cause of action as that of conspiracy. In Balanyk v. University of Toronto, at para. 29 Cameron J. stated:

If the plaintiff does not, at the time of the pleading, have knowledge of the facts necessary to support the cause of action, then it is inappropriate to make the allegations in the statement of claim.”

Motion To Strike

[24] Rule 25.11 states:

“The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,

(a) may prejudice or delay the fair trial of the action;

(b) is scandalous, frivolous or vexatious; or

(c) is an abuse of the process of the court.”

[25] The law with respect to Rule 25.11 can be summarized as follows:

i.) a document that demonstrates a complete absence of material facts will be declared to be frivolous and vexatious;

ii.) portions of a pleading that are irrelevant, argumentative or inserted for colour, constitute bare allegations or that contain only argument and include unfounded and inflammatory attacks on the integrity of a party, and speculative, unsupported allegations or defamation should be struck as scandalous and/or vexatious;

iii.) documents that are replete with conclusions, expressions of opinion, provide no indication whether information is based on personal knowledge or information and belief and contain many irrelevant matters will be rejected in their entirety;

iv.) anything which can have any effect at all in determining the rights of the parties can be proved, and consequently can be pleaded, however, the court will not allow any fact to be alleged which is wholly immaterial and can have no effect on the result;

v.) a pleading of fact will be struck if it cannot be the basis of a claim or a defence in the action and is designed solely for the purpose of atmosphere or if the only purpose is to cast the opposing party in a bad light;

vi.) pleadings of historical facts, whether those facts are true or not, that have no relevance to the proceeding, will be struck;

vii.) one of the purposes of Rule 25.11 is that since pleadings define the issues in an action if a party is required to respond to irrelevant facts, inquire into those facts on discovery and respond to evidence of those facts at trial, the litigation and trial will be diverted by inquires that have no connection to the real issues before the court;

viii.) if the plaintiff does not, at the time of pleading, have knowledge of the facts necessary to support the cause of action, then it is inappropriate to make the allegations in the statement of claim as it is improper to allow conclusions to be pleaded baldly and without any supporting facts;

ix.) a pleading should be read generously with the applicable principles in mind so as not to unfairly deny a party the benefit of the pleading and motions under Rule 25.11 should only be granted in the clearest of cases;

x.) only portions of a pleading that are irrelevant, argumentative or inserted for colour that constitute bare allegations should be struck as scandalous;

xi.) to establish that there is an “abuse of process” the moving party must demonstrate that there is a collateral and improper purpose and a definitive act or threat in furtherance of a purpose not legitimate in the use of the process and some overt act or threat distinct from the proceedings themselves in furtherance of the improper purpose (Ontario Consumers at paras. 12-17; Taylor at paras. 20-31; Balanyk at paras. 27-30; George v. Harris, [2000] O.J. No. 1762 at para. 20; Canadian National Railway v. Brant, 2009 32911 (ON SC), [2009] O.J. 2661 at paras. 27-29; National Energy Corporation v. Eco Energy Home Services Inc., 2014 ONSC 3778 at para. 10; Toronto (City) v. MFP Financial Services Ltd., [2005] O.J. No. 3214 at paras. 17-18).

[26] The Defendants submit that some paragraphs of the Amended Claim or portions thereof should be struck as disclosing no cause of action under Rule 21.01(b). The Defendants acknowledge that a Master has no jurisdiction to grant this relief which must be sought from a Judge. Similar relief is not available to the Defendants under Rule 25.11 and as such it will not be considered here. The Defendants also advised that, to the extent to which I determine that any parts of the Amended Claim should be struck, they do not oppose the granting of leave to amend.

Application to the Present Case

[27] The Defendants submit, among other things, that the Amended Claim is deficient and lacks material facts to support the Plaintiff’s claims for conspiracy, conversion, trespass and punitive damages and to pierce the corporate veil. The Defendants further assert that the Amended Claim is replete with evidence, opinions, irrelevant facts, speculation, hearsay, legal conclusions and inflammatory statements. The Plaintiff submits that many of the particulars demanded are already pleaded in the Amended Claim, have already been provided, constitute evidence, are within the knowledge of the Defendants and/or are not required to plead.

[28] The challenge with particulars is striking a balance between providing a plaintiff with the requisite flexibility to draft a Statement of Claim in the manner it chooses as long as the rules of pleadings are not violently offended with a defendant’s right to know the case it must defend and have sufficient particulars in order to plead a defence. In striking this balance, it is important to identify when further particulars, specifics and information are more properly left to examinations for discovery. This is consistent with a plaintiff’s right to not to be subject to pre-discovery discovery and the most pragmatic, efficient, cost-effective and proportionate approach. This balance is more pronounced where, as here, the Plaintiff has advanced serious allegations of conspiracy and the Defendants have made voluminous, wide ranging demands for particulars. While enhanced particularity is required when pleading claims such as conspiracy, the underlying rules of pleadings still apply including the prohibition against pleading evidence. In my view, as the courts have recognized, case management can be more effective than ordering particulars especially in ensuring that particulars do not morph into examinations for discovery and delay the litigation. In this regard, I adopt the comments of Flynn J. in Sleep Factory that motions for particulars and ongoing demands may be premature particularly where it becomes apparent that the defendant has already formulated its defence:

“11 It occurred to me as the Defendant developed his argument that he was unveiling the fact that he mostly knew how he would plead his defence. And in many respects much of his motion is premature. He should be required to defend the Sleep Clinic action, discoveries should be held and then, if advised, appropriate motions could be brought whether to strike or to dismiss and so forth.

12 The trouble is that the Defendant is trying in many instances, in his demands for particulars and by this motion, to cause the Plaintiff to plead not just so that the Plaintiff's pleadings define the parameters of the action, but so as to cause the Plaintiff's to ignore the rule about pleadings containing material facts but not evidence.

13 Moreover, the refusal to accept the answers to the Demand for Particulars means that what the Defendant seeks here is something more than pleadings and much more like discovery. So, for example, when he complains about the answer that Sleep Clinic provided in respect of paragraph 1(a) of the Statement of Claim he misses the clear indication that the Plaintiff's pleadings at the very least imply "in the alternative" and if the parties are not satisfied that that is clear enough from these pleadings then the Plaintiff ought to be given leave to amend that paragraph to reflect that.

14 In many ways, this scrambled mess of litigation is a contest of sabre rattling stratagems meant to cause the party opposite the most hurt financially, without much concern for the righteousness of a cause or the practical realities and expense of litigation in the Superior Court.”

[29] I have concluded that the bulk of the particulars demanded by the Defendants are not necessary to plead, can be characterized as evidence or subordinate facts and are inquiries more appropriately left for examinations for discovery. In numerous instances, the Defendants also attempt to argue the merits raising what would appear to be some of their defences to the Plaintiff’s allegations. This supports the conclusion that the Defendants already know in large part how they will defend the Plaintiff’s claims and therefore are able to plead.

[30] In some cases, I agree that clarification is required as to timing and other details but not at the granular level of minutae often demanded by the Defendants. Many of their requests can be characterized as evidence and a de facto examination for discovery in writing to which they are not entitled and do not require to plead. While the law of pleading conspiracy requires heightened particularity, precision and clarity, at the same time it does not impose an obligation on the Plaintiff to plead every date, the specific manner in which every act was carried out or the exact words that were used. All of this is inconsistent with a pragmatic, flexible approach to pleadings and contrary to the rule against pleading evidence. The Defendants do not require this level of specificity to plead, with some minor exceptions have notice of the case they have to meet and such inquiries are more appropriately left for examinations for discovery where additional particulars will emerge.

[31] With respect to the motion to strike, the Defendants largely submit that the Amended Claim or parts of it are scandalous, frivolous or vexatious or, to a lesser extent, an abuse of process. The Defendants have not provided any evidence or made any submissions that the Amended Claim would prejudice or delay trial a fair trial. I have largely declined to strike many of the paragraphs requested except with respect to certain paragraphs or words where there is no connection to a cause of action and/or it functions only to inflame or cast the Defendants in a negative light.

[32] The Defendants submit that I should place extra weight on the fact that as a franchisor DECI is required to disclose this litigation to potential franchisees. The Defendants argue that this leaves franchisors vulnerable to inflammatory, potentially damaging allegations made by disgruntled franchisees who know that litigation must be disclosed to potential franchisees and therefore use it as leverage in the litigation. While the underlying franchisor-franchisee relationship is a fundamental component of this case, it does not change the principles and factors applicable to this motion. In my view, while there are some specific statutory provisions unique to franchise law which may apply to certain issues, franchisors are in a position similar to other litigants who are required to disclose litigation for various reasons including to lenders, shareholders and regulatory bodies. The Defendants were unable to refer me to any case law which creates a special consideration in the context of franchise litigation and I am not convinced that one is necessary. Rule 25.11 and the existing case law provides adequate protection from pleadings which function only to cast a party in a negative light or for atmosphere based on the circumstances of each case including the nature of the relationship between the parties.

[33] The Defendants have demanded both heads of relief, particulars and striking (with leave to amend), with respect to paragraphs 50, 56, 59, 69, 70, 76, 77 and 79. In making the determinations below I have applied the principle that the pleadings must satisfy the rules and cannot be irregular before particulars are ordered. Specifically, where a pleading fails to meet the minimum requirements of the rules, particularly material fact disclosure, the remedy is not particulars but rather striking out the pleading as irregular usually with leave to amend (Copland at para. 17; P.M. Perell and J.W. Morden, The Law of Civil Procedure In Ontario (Markham: LexisNexis Canada Inc., 2010) at 349).

Disposition on Motion For Particulars

[34] Demands #1, 2, 3, 4 and 5 (Damages) – The Defendants initially demanded particulars of how each damage claim in paragraph 1 of the Amended Claim was calculated. However, they resiled from this demand during oral submissions, advising the court that they were not requesting how damages were calculated but rather seeking clarification of what portion of the damages are for breach of contract. The Plaintiff has confirmed that it is claiming $5,000,000 for breach of contract from ECDC as set out at paragraph 1(i) of the Amended Claim. Any further particulars regarding damages are more appropriately left to examinations for discovery and expert evidence. The Defendants also argue that section 20.10 of the Agreement provides that the parties waived punitive, exemplary, multiple or consequential damages and that the Plaintiff’s damages are limited to the recovery of actual damages sustained. This is an argument on the merits which is misplaced on this motion and supports the conclusion that the Defendants already know how they will plead their defence. The Defendants also urge me to apply the doctrine of merger given the Plaintiff’s allegation that there was a conspiracy to commit a tort which was actually committed (Jevco Insurance Company v. Pacific Assessment Centre Inc., 2015 ONSC 7751 (Div. Ct.) at para. 20). Some cases have held that since a conspiracy claim is merged in the tort claim if the tort is committed and the plaintiff receives only one damage award, damages caused by the conspiracy must be “special” or distinct from the damages caused by the underlying tort (Jevco para. 2). However, in Jevco, cited by the Defendants, the Divisional Court held that the merger doctrine does not apply at the pleadings stage and I decline to apply it here (Jevco at paras. 11 and 52). No particulars are ordered.

[35] Demands #8, 10, 11, 14 and 17 (Conduct of Mark and Anita) – With respect to Demand #8, the Defendants requested the dates, manner and specific wording or actions by Mark and/or Anita that were allegedly rude and/or threatening including if oral or in writing (para. 32 of the Amended Claim). They demanded the same information with respect to the allegations that Mark and Anita told the Heaphys not to contact Dogtopia’s head office in Phoenix, travel to Phoenix for franchisee training and made repeated warnings and efforts to ensure the Heaphys had no contact (Demands #10, 11, 14 and 17; Amended Claim at paras. 32, 35-36, 40 and 42). While I disagree with the Plaintiff that this information should be within the knowledge of Mark and Anita, I agree that it is not required to plead. In my view, the particulars sought are also of the degree that they constitute evidence required to prove the Plaintiff’s allegations and are more properly the subject of inquiry on examinations for discovery. No particulars are ordered.

[36] Demands #22 and 25 (Animal Abuse) – With respect to Demand #22, the Defendants demand the identity of the trainer and the date of the training sessions where the trainer allegedly picked up a dog and threw it into a wall (Amended Claim at para. 50). Although the Defendants have also requested that paragraphs 50 and 56 be struck, as set out below, this relief has been denied, therefore, I have considered whether particulars should be ordered. Given that DECI and other Defendants organized this training for the Plaintiff, I am satisfied that this is within the Defendants’ knowledge. In Demand #25, the Defendants’ demand has 4 sub-categories constituting 20 demands for particulars with respect to alleged animal abuse set out at paragraph 56 of the Amended Claim including the specific Dogtopia locations, dates of the incidents and the manner and basis for which the Heaphys saw each instance as “abuse”. In my view, the only properly demanded particular is the identity of the Dogtopia locations where the alleged abuse occurred. I am satisfied that this information is not necessarily within the knowledge of the Defendants as the Amended Claim appears to refer to incidents at training sessions other than those organized by DECI. The balance of the particulars requested are not necessary for the Defendants to plead, in some cases are within their knowledge and are more properly the subject of questions on examinations for discovery. The Plaintiff shall provide the identity of the locations within 30 days.

[37] Demand #26 (Appropriate Techniques) – The Defendants seek particulars regarding the “appropriate techniques” which the Heaphys allegedly learned to keep all dogs under their care safe and happy because DECI failed to provide training and support required under the Agreement (Amended Claim at para. 57). This reference is vague and without more detail, it is not clear, even generally, what these appropriate techniques are. I am satisfied that this is a proper particular which is necessary for the Defendants to plead and not otherwise within their knowledge. The Plaintiff shall provide these particulars within 30 days.

[38] Demand #27 (Re-Zoning) – The Defendants demand the date and manner when Mark and Anita advised the Plaintiff that although the Premises was not zoned for boarding dogs that a minor variance was easily obtainable (para. 59, Amended Claim). The Defendants also requested that paragraph 59 be struck, however, as set out below, I have denied this relief. I am not satisfied that this information is necessary to plead and in any event it is evidence. No particulars are ordered.

[39] Demand #28 (Advice Re: Takeover) – The Defendants demand particulars with respect to who allegedly learned that Talin was advising staff at Dogtopia Mississauga about the “Burlington Takeover”, who told the Heaphys and the relevant dates (Amended Claim at para. 69). As set out below, I have rejected the Defendants’ request to strike paragraph 69. While I conclude that this demand is largely evidence which is not required to plead, I am satisfied that given the allegations of conspiracy, the timing is material and the Plaintiff shall advise within 30 days as to when (approximate month/year) the Heaphys allegedly learned that Talin was doing so to the extent to which this is known and has not already been provided.

[40] Demands #29, 32, 33 and 35 (Further Conduct) – The Defendants seek particulars related to the Plaintiff’s allegations that Mark and Anita took steps to position themselves as the owners and operators of Dogtopia Burlington and Mark’s conduct including bullying (Amended Claim at paras. 70, 77 and 79). The Defendants also request that paragraphs 70-79 of the Amended Claim be struck. In my view, the relief ordered below on the motion to strike is sufficient to regularize the Amended Claim and address any deficiencies. The additional particulars including specific dates and words are not required to plead, constitute evidence and are inquiries for examinations for discovery. No particulars are ordered.

[41] Demands #40 and 41 (Harassment and Next Phase of The Takeover) – The Defendants demand the dates and manner with respect to the Defendants’ alleged attempts to harass the Plaintiff into abandoning the franchise (Amended Claim at para. 82). The Plaintiff states in the Response that these particulars are contained throughout the Amended Claim and are within the knowledge of the Defendants. Again, I conclude that the bulk of this demand such as specific dates and manners constitutes evidence not required to plead. However, I am satisfied that, although the Plaintiff argues that the alleged attempts to harass are contained throughout the Amended Claim, clarification is required as to what alleged conduct of the Defendants the Plaintiff characterizes as harassment. The Plaintiff shall provide this information within 30 days. The Defendants also demand particulars regarding elements of the “next phase” of the “Burlington Takeover” including dates and manner when the Plaintiff was forced to hire a manager and other staff, specific conduct reported by the staff to the Defendants; dates, parties and content of recorded phone calls; who told the Heaphys they were not required to work at their own store; and which Defendants created fake social media accounts (Amended Claim at para. 84). In my view, sufficient particulars are contained in the Amended Claim to permit the Defendants to plead, including the date when the next phase occurred. Any further specifics other than what has already been pleaded would cross over into evidence and, in many cases these are not in the Plaintiff’s knowledge given the nature of the allegations and the stage of the proceedings. Again, this is all properly deferred to examinations for discovery. No particulars are ordered.

[42] Demands #42, 45, 47 and 48 (Manufactured Evidence and Fabricated Termination) – The Defendants demand particulars of how each Defendant allegedly manufactured and documented evidence of the Plaintiff’s misconduct including full particulars of each instance (Amended Claim at para. 85). In the Response, the Plaintiff states that apart from what is already pleaded elsewhere in the Amended Claim, it has no further particulars which, in any event, are in the knowledge of the Defendants. In my view, sufficient particulars of how evidence of misconduct was manufactured are pleaded throughout the Amended Claim (including at paragraphs 84 and 105) taking into consideration what it would be reasonable to expect the Plaintiff to know at this stage before documentary and oral discovery and that the Plaintiff is not required to plead all material facts in support of its claim. The Defendants also demand particulars of each of the specific “fabricated” grounds set out in the Notice of Termination including the identity of the Defendants who fabricated any ground (Amended Claim at paras. 93 and 101). The Plaintiff submits that all grounds are fabricated (as set out at paragraph 94 of the Amended Claim) and that it has no further information other than what has already been pleaded. I am satisfied that no further particulars are required for the Defendants to plead. I also reject the Defendants’ submission that it is improper for the Plaintiff to refer to the Defendants collectively when pleading allegations of conspiracy. Referring to the Defendants collectively in certain instances because the reference calls for it is a drafting issue which is distinct from “lumping” them together to advance generalized conspiracy claims without ever distinguishing their respective roles. The Plaintiff has sufficiently distinguished between the Defendants as appropriate in the Amended Claim and the Defendants’ objections are overly technical and inconsistent with the flexibility to which the Plaintiff is entitled. I also reject the Defendants’ demand for the specific words that Mark used when he allegedly threatened to “buy out” Dogtopia Burlington (Amended Claim at para. 103). Again, this is evidence which is not required for the Defendants to plead and is appropriately dealt with at examinations for discovery. No particulars are ordered.

[43] Demand #49 (Conspiracy) – The Plaintiff pleads at paragraph 105 of the Amended Claim that the overt acts of each conspirator are known only to the Defendants and lists various conduct of each Defendant “in pursuance and furtherance of this conspiracy”. This includes Mark and Anita’s campaign to separate the Heaphys from control of the franchise or incent them to leave; Peter, Mark and Anita taking steps to fabricate grounds to terminate the Agreement including placing employees to spy, commissioning negative social media reviews and soliciting negative feedback from employees; Peter directing DECI to assign its rights under the Agreement to ECDC and DECI assigning its rights; and ECDC terminating the Agreement without grounds. The Defendants submit that they are entitled to the dates, manners and specific steps taken by each Defendant, including steps taken by Mark and Anita to place employees as spies and solicit negative feedback, commission negative social media reviews and how assignment of the Agreement was an overt act. In my view, between the specifics and details pleaded elsewhere in the Amended Claim, particulars I have ordered and the Response and answers provided, no further particulars are required. The Plaintiff has pleaded the elements of conspiracy namely the parties and relationship, agreement, purpose, acts and damages, all of which is supported bv relevant material facts pleaded elsewhere in the Amended Claim. It is not required to plead all of the facts or evidence and more will be revealed through documentary and oral discoveries. Further, some of the particulars sought are within the knowledge of the Defendants, including details of the negative social media reviews, copies of which are in the possession of their counsel. The Plaintiff has also advised in the Response that the assignment of the Agreement was an overt act as it allowed ECDC to take control of Dogtopia Burlington. In all of the circumstances, to the extent to which the Defendants are seeking more than what has already been provided, they are requesting evidence which is unnecessary to plead and a subject for examinations for discovery. No particulars are ordered.

[44] Demands #50, 51 and 52 (Control of DECI and ECDC) – The Defendants demand particulars of how Peter and Mark completely dominate and control DECI and ECDC such that there is a lack of distinct identity and how they used the corporations to shield improper conduct including the expropriation of the franchise and termination of the Agreement, or, in the alternative, orchestrated and induced the breach of the Agreement (Amended Claim at paras. 108-110). In the Response, the Plaintiff cites approximately 34 paragraphs of the Amended Claim referencing 8 categories of improper conduct identifying Peter and Mark by name including the execution of the “Burlington Takeover” (paras. 82-84) and taking unlawful possession of the Premises (paras. 91-92). I am satisfied that the answer provided by the Plaintiff is a sufficient and appropriate response and no further particulars are required to plead. The Defendants’ reliance on the prohibition of claims against non-parties in Section 21.12 of the Agreement as a bar to the Plaintiff’s claims against Peter and Mark personally is another argument on the merits which demonstrates that the Defendants already know how they will plead and is not a basis for particulars. No particulars are ordered.

[45] Demand #53 (Improper Purpose) – The Plaintiff pleads that the termination of the Agreement and the expropriation of the franchise were for Peter and Mark’s own benefit or some other improper purpose (Amended Claim at para. 111). The Defendants demand particulars of what Peter and Mark derived or the improper purpose. The Plaintiff responded that they obtained control of the franchise and access to the resulting proceeds. In my view, this is a sufficient response, no further particulars are necessary to plead and further specifics can be obtained on discovery. No particulars are ordered.

[46] Demand #54 (Equipment) – The Plaintiff pleads at paragraph 117 of the Amended Claim that chattels detained and converted by the Defendants include “all equipment, totaling approximately $250,000”. The Defendants demand particulars of the specific equipment. Again, this is not necessary for the Defendants to plead and constitutes evidence which can be canvassed on discovery. Further, this is within the knowledge of the Defendants since there is no dispute that they took possession of the Premises and therefore should know what equipment of the Plaintiff they detained. No particulars are ordered.

Disposition on Motion To Strike

[47] Paragraph 9 – The Defendants submit that this paragraph is inflammatory and speculative due to the references to the Heaphys’ “dream business” and the allegation regarding the Defendants’ “arrangement” to expropriate the business which the Defendants claim is vague and unsupported. I decline to strike this paragraph. This is all pleaded under the heading “Overview” and, on a generous reading, is within the parameters of a flexible, non-technical approach. Further, I disagree that the reference to a “dream business” is inflammatory or irrelevant and the reference to an “arrangement” is not vague but rather a preview for the particulars and specifics which follow regarding the conspiracy allegations.

[48] Paragraphs 16-19, 80, 87 and 89 – The Defendants argue that these paragraphs are irrelevant and an abuse of process because they contain allegations of an alleged deficiency in DECI’s disclosure document even though the Plaintiff is not claiming liability or damages for non-disclosure or a deficiency in the disclosure documentation. I reject the Defendants’ relevance argument given that the Plaintiff pleads at paragraphs 18, 80 and 87 that had it been aware of the alleged deficiency in the disclosure document it could have rescinded the Agreement within the statutory rescission period. On any analysis, this is not an abuse of process, particularly since there is no evidence that the Plaintiff has a collateral or improper purpose separate from the litigation in making this allegation. Further, the Defendants’ assertion that the Plaintiff’s failure to plead that any of the Defendants owed them a duty to advise the Plaintiff of its rescission rights or is inconsistent with paragraphs where the Plaintiff refers to legal advice are more arguments on the merits.

[49] Paragraph 41 – The Plaintiff alleges that Mark and Anita “feared” that if the Heaphys contacted representatives at Dogtopia’s head office in Phoenix that they would discover the plan to take over Dogtopia Burlington. The Defendants submit that this paragraph contains opinions and unsupported conclusions without material facts regarding Mark and Anita’s feelings. In my view, this allegation is fully canvassed with supporting facts at paragraphs 35-42. The Defendants’ assertion that this is inconsistent with the Plaintiff’s allegation that Dogtopia’s head office was involved in the conspiracy is another argument on the merits which demonstrates that the Defendants already know their defence. I decline to dismiss this paragraph.

[50] Paragraphs 43-49 – The Defendants submit that these paragraphs are inflammatory, irrelevant and plead evidence and opinion with respect to Rob’s desire to attend training, devote his time to the success of the franchise and that the alleged failure to provide proper support and training was part of the “Burlington Takeover”. I do not accept the Defendants’ submissions and decline to strike these paragraphs. These paragraphs are relevant to the allegations that the failure to provide training and support is an example of DECI/ECDC’s breach of the duty of fair dealing (Amended Claim at para. 103b) and that it was commercially unreasonable as not in accordance with the Agreement (Amended Claim at para. 55). While these paragraphs could be clearer, they are within the flexibility and generous reading afforded to the Plaintiff and do not offend the rules of pleadings or rise to a level which requires striking.

[51] Paragraphs 50-56 and 103(b) – The Defendants submit that the paragraphs in which the Plaintiff makes allegations of dog abuse are highly inflammatory, irrelevant, an abuse of process, intended to cause harm to the reputation of the franchisor and do not support any cause of action advanced by the Plaintiff. However, paragraph 103(b) explicitly states that DECI/ECDC’s failure to take steps to protect the Dogtopia brand in the face of multiple instances of animal abuse and mistreatment are examples of their breach of the duty of fair dealing and at paragraph 56 that this imperiled the Dogtopia brand which the franchisor had a duty to remedy. However, I am satisfied that paragraph 52 should be struck with leave to amend. The entirety of this paragraph states: “Rob and Lisa were horrified at these displays of animal cruelty”. This paragraph serves no purpose other than to unnecessarily inflame and cast the Defendants in a negative light and whether the Heaphys were “horrified” is not relevant or connected to any cause of action (they are not claiming for mental distress). Other than paragraph 52, I conclude that the balance of these paragraphs should remain supported by the particulars ordered above.

[52] Paragraphs 58-62 – The Plaintiff alleges in these paragraphs that although Mark and Anita advised that only a “minor variance” which was “easily obtainable” was required to have the Premises zoned for boarding dogs, obtaining the variance was not straightforward and was strenuously contested by several established dog boarding companies requiring the Plaintiff to retain specialized consultants and lawyers at a cost of “tens of thousands of dollars”. The Defendants submit that these paragraphs are irrelevant, inflammatory and an abuse of process. I have some difficulty with the allegations at paragraph 62 that Mark “antagonized and bullied the organizations that were opposed to the variance” and that in a meeting with a representative of Escarpment Pet Retreat Mark was “rude, antagonistic and aggressive” which made this representative more firmly resolved and determined to prevent the Plaintiff from offering boarding services. In my view, without clarification of its connection to a cause of action these characterizations of Mark’s alleged conduct serve only to inflame and cast him in negative light. Paragraph 62 is struck with leave to amend.

[53] Paragraphs 66-67 and 69 – The Defendants submit that these paragraphs contain feelings, concerns and hearsay. This includes the Heaphys’ concerns that sales were not being generated quickly, that they had no choice but to raise their concerns with Mark and Anita and that they became “alarmed” that Talin was telling staff at Dogtopia Burlington that the hiring of a manager was part of the “Burlington Takeover”, the first time they heard this phrase. I reject the Defendants’ assertion that these paragraphs should be struck. In my view, these are material facts which are relevant to causes of action pleaded. The fact that the Amended Claim states that the Heaphys “felt” they had to do something, were “alarmed” or that they had “concerns” does not offend any rules of pleadings and is not scandalous, frivolous or vexatious. I am also not satisfied that these paragraphs plead evidence and the Defendants were unable to provide any authority, case law or any other grounds to strike these paragraphs on the basis that the information was obtained from another person or is hearsay.

[54] Paragraphs 70-79 – These paragraphs set out the Plaintiff’s allegations that Mark and Anita tried to position themselves as the owners and operators of Dogtopia Burlington at the location’s grand opening (para. 70); the Heaphys’ unsuccessful attempts to have Mark and Anita address their concerns regarding training, boarding and costs (paras. 71-77); and Mark’s reaction when Plaintiff’s counsel sent him a letter outlining their concerns with respect to Dogtopia Burlington (paras. 78-79). The Defendants argue that these paragraphs are inflammatory, an abuse of process and improperly contain opinions as to Mark’s emotions, intentions and goals. With respect to paragraph 70, I agree with the Plaintiff that the allegation that Mark and Anita positioned themselves as the owners and operators of Dogtopia Burlington is relevant and that the bulk of this paragraph provides supporting facts. However, in my view paragraph 70(ii), where the Plaintiff alleges that Mark and Anita insisted that they spend significant time loading dog crates to limit Rob’s interaction with customers crosses over into evidence. Paragraph 70(ii) is struck with leave to amend. With respect to the balance of these paragraphs, I am generally satisfied that the allegations regarding the rejection of the Plaintiff’s efforts to have its concerns addressed are relevant and material. However, in my view references to Mark trying to “bully” the Heaphys, that the lawyer’s letter sent him into a “rage”, and references to “yell(ing)” and “scream(ing)”, without more, including a connection to the causes of action only serve to cast Mark in a negative light particularly given the language used. The Plaintiff is not claiming damages for harassment, bullying or mental distress. If the Plaintiff wishes to allege that Mark acted in an aggressive manner then it should do so with language that is less inflammatory and connects the alleged conduct to causes of action. The references to “bully”, “rage”, “yell(ing)” and “scream(ing”)” are struck with leave to amend.

[55] Paragraphs 86-87 – The Plaintiff alleges that the Defendants believed after 6 months that they had a sufficient number of incidents to terminate the Agreement and waited until the lapse of the two-year rescission period. I disagree with the Defendants’ suggestion that these references are inflammatory and an abuse of process. There is no evidence of a collateral, unrelated purpose to these paragraphs which set out allegations as to how the Defendants carried out the “Burlington Takeover”.

[56] Paragraph 95 – The Plaintiff alleges that ECDC’s counsel refused to provide particulars of the termination of the Agreement and only permitted Plaintiff’s counsel to inspect the supporting evidence briefly. I disagree with the Defendants that this paragraph is inflammatory, an abuse of process or somehow hearsay evidence. However, I question the relevance of some of what is pleaded. I am satisfied that the allegation that counsel refused to provide the information requested and only permitted inspection is relevant and material. However, the additional details cross over into evidence and are unnecessary. These additional parts of the paragraph are struck with leave to amend.

[57] Paragraph 121 – This paragraph is under the heading “Punitive Damages”. The Defendants object to the allegation that they wanted to transfer Dogtopia Burlington for their own uses and the reference to the Heaphys’ “severe” financial losses and life savings. I reject the Defendants’ submissions. The allegation that the Defendants wanted the transfer for their own uses is related to causes of action and supportive of punitive damages. Further, there is nothing inflammatory, irrelevant or evidentiary about references to the Heaphys’ severe financial losses and their life savings.

[58] Paragraphs 38, 69 and 95 – I reject the Defendants’ submissions that these paragraphs contain evidence, let alone hearsay evidence, and the Defendants are unable to provide any authority, case law or other ground to strike on the basis that the information pleaded was obtained can be considered hearsay

IV. Order and Costs

[59] Consistent with Rule 1.04(1) and the fact that more particulars will be revealed as this action progresses, it is imperative that pleadings be finalized. To minimize further delays, Order to go as follows (the dates may be amended on consent of the parties):

i.) the Plaintiff shall deliver the particulars ordered above and its Amended Amended Statement of Claim within 30 days;

ii.) the Defendants shall deliver their Statement of Defence within 45 days of receipt of the particulars and the Amended Amended Statement of Claim;

iii.) the Plaintiff shall deliver its Reply, if any, within 30 days of receipt of the Statement of Defence;

iv.) the parties shall deliver their Affidavits of Documents on or before June 30, 2021;

v.) examinations for discovery shall be completed by November 30, 2021.

[60] If the parties cannot agree on the costs of this motion, they may file written costs submissions not to exceed 4 pages (excluding Costs Outlines) on a timetable to be agreed upon by counsel. Counsel may schedule a telephone case conference, if necessary.

Released: January 20, 2021

Master M.P. McGraw