Court File and Parties
Court File No.: CV-19-153 Date: 2021-02-10 Superior Court of Justice - Ontario
Re: 1890077 Ontario Inc., Plaintiff And: 2076748 Ontario Inc. and Edith Kroner, Defendants
Before: Justice D.A. Broad
Counsel: Matthew J. Lambert, for the Plaintiff Derek Sinko, for the Defendants
Heard: January 14, 2021
Endorsement
[1] The plaintiff 1890077 Ontario Inc. (the "tenant" or "189") was a commercial tenant of the defendant 2076748 Ontario Inc (the "landlord" or "207") from August 2013 to August 31, 2018 pursuant to a dated August 22, 2013 (the "Lease"). The defendant Edith Kroner ("Kroner") is the principal of 207.
[2] The tenant carried on business as a bar and restaurant known as Rocklings Tap and Grill (the "business") at a portion of a property owned by the landlord in the City of Brantford (the "premises").
[3] The Lease was for a term of 5 years and 9 days, terminating on August 31, 2018, with an option to the tenant, subject to conditions, to extend the term for a further 5 years.
[4] The Lease provided that the tenant was not entitled to effect a Transfer (defined to include an assignment or subletting) without the written consent of the landlord, not to be unreasonably withheld.
[5] In late 2017 the tenant expressed to the landlord an interest in exercising the right to extend the original term of the Lease. The landlord refused the tenant's request for an extension on the basis that the tenant was in breach of the Lease such that, under the terms of the Lease, it was not entitled to exercise the extension provision. In particular, the landlord alleged that the tenant was in breach of the term requiring the premises to be used only as a restaurant. The landlord took the position that the bar operation being carried on by the tenant, involving late hours and loud music, was not in compliance with the Lease and pointed to noise complaints received from residential tenants in the building in which the premises were situate. The parties and their respective counsel engaged in an exchange of correspondence concerning the tenant's request for an extension of the lease term and the breach of the Lease alleged by the landlord.
[6] The correspondence between counsel for the landlord and the tenant culminated in a letter from counsel for the landlord dated February 20, 2018 demanding written confirmation from the tenant that it would not require an extension of the lease term beyond August 31, 2018, failing which the landlord intended to commence an application for a declaration that the tenant was in breach of the Lease and was not entitled to an extension of the term and for an order requiring the tenant to vacate the premises on August 31, 2018.
[7] The landlord and tenant then entered into a written agreement dated March 13, 2018 (the "Acknowledgement Agreement") comprising the following terms:
(a) the tenant has not exercised its option for an extension of the Lease and is not entitled to an extension of the Lease;
(b) the tenant shall vacate the premises on or before August 31, 2018;
(c) the parties acknowledge having had an opportunity to obtain independent legal advice for the agreement and understand their obligations therein; and
(d) the parties agree that the agreement constitutes the entire terms of the agreement and no other representations or warranties except as expressly provided in the agreement form any part of the agreement between the parties.
[8] The principal of the tenant Rudrasingham Viplanarayanan ("Viplanarayanan") commenced efforts to find a purchaser for the business. A number of potential purchasers came forward to express interest and were introduced by Viplanarayanan to Kroner. One potential purchaser was introduced by Kroner to Viplanarayanan.
[9] The plaintiff alleges that it entered into an agreement of purchase and sale with a purchaser Ranj Lawrence ("Lawrence") on August 9, 2018 for the purchase of the business for price of $100,000 plus $40,000 for inventory with a closing date of August 31, 2018. The plaintiff says that the agreement of purchase and sale document was prepared by a real estate agent Thinash Paramsothy.
[10] The defendants deny that the plaintiff and Lawrence entered into an Agreement of Purchase and Sale and submit that the document produced by the plaintiff in response to a Request to Inspect Documents purporting to be a true copy of an agreement of purchase and sale was a forgery, as was subsequently acknowledged by the plaintiff. The defendant submits that the replacement document purporting to be a copy of the actual agreement of purchase and sale produced by the plaintiff was also unauthentic.
[11] The agreement of purchase and sale document relied upon by the plaintiff did not state that the purchase of the business was conditional upon the tenant securing the consent of the landlord to an assignment or subletting or upon Lawrence entering into a new lease agreement with the landlord. Schedule A to the document included the following provision:
"The Tenant shall have the right to assign its interest under this Lease to a limited company, partnership, or person. The Tenant agrees to send written notice to the Landlord and obtain the Landlord's written approval prior to any assignment. Such approval shall not be arbitrarily or unreasonably withheld or delayed."
The terms "Tenant" and "Landlord" were not defined in the agreement of purchase and sale document. 189 was described as the "Seller" and Lawrence was described as the "Buyer."
[12] There is no evidence that the plaintiff sought the consent of the landlord to an assignment of the Lease to Lawrence. There is similarly no evidence that the plaintiff executed an assignment of the lease in favour of Lawrence or that Lawrence ever submitted an offer to lease to the landlord.
[13] The proposed sale of the business to Lawrence did not proceed and the plaintiff vacated the premises without selling the business.
[14] The landlord took the position that the plaintiff breached the terms of the Lease by leaving the premises in a state of disrepair and on May 18, 2019 it commenced a Claim in the Small Claims Court at Brantford for damages in the sum of $25,000 against the tenant and Sharmini Viplanarayanan (Rudrasingham Viplanarayanan's spouse) pursuant to her written indemnity to be personally responsible for breaches by the tenant under the Lease.
[15] The tenant then commenced the within action by Statement of Claim issued July 5, 2019 claiming against the landlord 207 and Kroner:
(a) damages for breach of contract in the amount of $140,000;
(b) in the alternative, damages for intentional interference with contractual relations in the amount of $140,000; and
(c) aggravated and punitive damages in the amount of $50,000.
[16] The Statement of Claim alleged, inter alia, the following:
(a) the plaintiff received an offer to purchase the business from Lawrence;
(b) the plaintiff advised the defendants of the purchaser of the business, to whom the Lease would need to be assigned as part of any purchase and provided the defendants with all the information required in article 12 of the lease agreement;
(c) the defendants failed and refused to approve of the potential purchaser and tenant without any explanation for doing so;
(d) the defendant breached the lease agreement by unreasonably withholding their prior written consent to give effect to the transfer of the Lease to the prospective purchaser of the business;
(e) as result of the breach of the lease agreement by the defendants, the plaintiff has suffered damages, since it was unable to sell the business and the lease agreement expired on August 31, 2018; and
(f) Kroner interfered with the contractual relations between the plaintiff and the defendant 207 with the intent to cause 207 to breach its lease agreement with the plaintiff without legal justification and, as a consequence of the refusal by Kroner to approve the plaintiff's purchaser, the plaintiff has suffered damages as it was unable to sell its business.
[17] The tenant subsequently amended the Statement of Claim to claim "compensatory damages" in the amount of $140,000 and to allege, inter alia, the following:
"19. The plaintiff states that it relied on the defendants (sic) words and actions in attempting to sell the business, and transfer the lease, and states that as a result of relying on the defendant's words and actions it was unable to sell its business for the total amount of $100,000 plus inventory, which totalled $40,000, as the Lease Agreement expired and the plaintiff had no lease (sic) premises to offer as part of the sale of its business"; and
"20. The plaintiff states that had it not relied on the words and conduct of the defendant, Edith Kroner, that it would have renew (sic) its lease agreement so it could continue to operate the business and continue to attempt to sell it. By relying on the words and conduct of Edith Kroner, the plaintiff was unable to sell its business and it lost the value of that business as a result of no longer having a lease agreement for a premises from which the business could be operated."
Motion for Summary Judgment and Cross-Motion to transfer the Small Claims Court Action
[18] The defendants have brought a motion for summary judgment seeking dismissal of the action in its entirety against them.
[19] The plaintiff opposes the motion for summary judgment and has brought a cross-motion for the transfer of the Small Claims Court action to the Superior Court and for an order that it be consolidated with or heard at the same time as the within proceeding.
Nature of the plaintiff's claims
[20] In its Factum the plaintiff characterized its claim against the defendants as follows:
(a) claim against 207 for breach of contract;
(b) claim for compensatory damages against 207 based on promissory estoppel and/or fraudulent misrepresentation; and
(c) claim against for intentional interference with contractual relations.
[21] In submissions Mr. Lambert abandoned the plaintiff's breach of contract claim against 207. It is clear on the evidence that the plaintiff made no request to 207 to consent to an assignment or subletting of the Lease and there is no term of the Lease requiring the landlord to enter into a new lease with a proposed purchaser of the business following expiry of the term of the lease on August 31, 2018.
[22] Mr. Lambert acknowledged that the plaintiff's claim against the landlord 207 is limited to a claim for compensatory damages based upon promissory estoppel and/or fraudulent misrepresentation. Neither promissory estoppel nor fraudulent misrepresentation was explicitly pleaded in the Amended Statement of Claim, however Mr. Lambert submitted that the material facts supporting those claims were set forth in the Amended Statement of Claim, specifically at paragraphs 19 and 20 quoted above.
[23] The plaintiff submitted in its Factum that it entered into the Acknowledgement Agreement, by which it agreed not to seek to extend the term of the Lease beyond August 31, 2018, on the basis of an assurance or representation made by Kroner that she would assist in "approving a tenant for the premises." The plaintiff also characterized the representation as "Kroner personally assured Viplanarayanan that it (sic) would work with him to approving (sic) a new tenant so that 189 could sell its business."
[24] The plaintiff submits that it would be illogical and commercially unreasonable for the court to find that the plaintiff entered into the Acknowledgement Agreement without the assurances or representations by Kroner.
[25] The plaintiff made no submissions in its Factum particularizing its claim based upon fraudulent misrepresentation except to state the legal elements of the tort. This claim was not pursued by Mr. Lambert in oral submissions.
[26] In its Factum the plaintiff submits that Kroner's assurance to it that she would act reasonably in approving a new tenant to purchase the business caused the plaintiff to sign the Acknowledgement Agreement. It says that Kroner then refused to accept Lawrence as a tenant of 207. The plaintiff submits that, as a result of the personal actions and interference of Kroner, it was unable to sell its business and it thereby suffered loss for which Kroner is personally liable.
Principles Governing Motions for Summary Judgment
[27] There is no controversy between the parties on the basic principles governing motions for summary judgment.
[28] Rule 20.04(2)(a) of the Rules of Civil Procedure provides that the Court shall grant summary judgment if it is satisfied that there is no issue requiring a trial. This will be the case where the summary judgment motion process provides the court with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportional procedure.
[29] If the court finds that there are genuine issues requiring a trial and the record on the motion is insufficient to permit the determination of the genuine issues requiring a trial, it must consider whether the issues can be decided using the fact-finding resources available under rule 20.04(2.1) and (2.2).
[30] The party responding to a motion for summary judgment is required to put its "best foot forward" and the court is entitled to assume that the evidence led on the motion for summary judgment will be the evidence at trial.
Analysis
(a) Evidence respecting the plaintiff's claim based upon promissory estoppel
[31] The evidentiary basis for the plaintiff's claim against 207 for compensatory damages based upon promissory estoppel is set forth at paragraphs 29 to 31 of Viplanarayanan's affidavit sworn/affirmed on February 20, 2020 as follows:
Given that Ms. Kroner insisted that I close the restaurant at 10 PM each night, I viewed the relationship with Ms. Kroner as broken down. I advised her that I had no choice but to attempt to sell the business. Ms. Kroner then advise me (sic) that she would work with me to sell the business to a person or entity that was mutually beneficial to both 189 and 207.
Before I signed the Agreement dated March 13, 2018, Edith Kroner advised me that despite the fact that 189 was not exercising its right to extend the Lease, that she would cooperate with me on my sale of 189, as it concerned having a new owner enter into or be assigned the Lease Agreement for the premises.
I signed the Agreement dated March 13, 2018, on behalf of 189, on the representations made by Edith Kroner to me and my understanding and belief that she would reasonably consider any potential purchaser of my business as a tenant of the premises.
[32] On cross-examination Viplanarayanan testified as follows at Questions 63-66:
Q. You said that when you signed this agreement Ms. Kroner had said something to you, that she would enter into a new lease with a new tenant right? A potential purchaser, is that right?
A. Okay. That's not correct. I asked her to sign the -- I asked her to -- How can I -- Have to know the words, exactly words, because -- English is a little tough for me, because English is my third language.
Q. Take your time.
A. Yeah, and --What happened? That time, I asked her, to -- Okay, when you -- When I get a new buyer, please sign the lease with them so I can sell my business. So, it's not -- I didn't mean it for transfer the new lease or transfer lease. I just asking, 'Will you please help me to sell my business?' And that's -- That mean, you know, I didn't mention that is a new lease or maybe I -- I told her, I can get her what she expects to the new buyer, or she -- The new buyer have to agree with her terms. So, I tried to find the person who can agree with the terms and to buy my business.
Q. You knew, though, that Ms. Kroner and 207, they would be negotiating -- They would have to negotiate a new lease with any proposed purchaser? It would be up to them to decide on what rent was going to be, right?
A. Yes. Correct.
Q. It would be up to them to decide on what the use was going to be, right? All the normal terms of the lease.
A. Yes.
[33] At questions 104 -105 Viplanarayanan testified further as follows:
Q. Can you tell me precisely, as best as you can remember, the words that Ms. Kroner actually said to you at this verbal discussion a few days prior to signing this agreement?
A. I think what exact -- The problem is I can't translate. That's the problem. What she's saying -- Because, you know, when we had a verbal -- When we talk about that we got the agreements, and she told me, Okay Viplan. Please, if you can get me the client what my terms and conditions, who can agree, then she going to sign the lease with them. So, she helped me -- To sell the business. Her terms and conditions, who agree with that.
[34] In her Reply affidavit affirmed March 18, 2020 Kroner denied that she made any representations to 189 with respect to the sale of the business. She deposed as follows:
I deny that 207, or I personally, made any representations to 189 with respect to the sale of Rocklings Tap & Grill, including but not limited to any representation that I would co-operate or assist in the sale, approve of any potential purchaser put forth, or agreed to enter into a new lease with any potential purchaser put forth.
At all material times, 207 maintained sole and absolute discretion, as landlord and owner of the premises, to decide who it would lease the premises to following the end of 189's lease.
Despite the fact that 207 had no obligations to 189, I did correspond with 189 with respect to potential purchasers and meet with potential purchasers who were proposed by 189.
The decision to correspond with 189 and meet with potential purchasers was simply a prudent business decision. Given that 189's lease was ending on August 31, 2018, it was simply good business practice that 207 explore prospective new tenants to fill the commercial space (and to generate rental revenues for 207).
[35] On cross-examination Kroner testified as follows at questions 591-595:
Q. You know that in August 2018, when you -- when he's trying to sell the business and you're vetting tenants for the property, right?
A. Yes, I know. I know that.
Q. You know there's two potential tenants and one's prepared to pay more. Although, there is a disagreement on how much, but that's not really my point. You know that there's somebody prepared to pay more than another tenant, and you know that it's still a fraction of what Vip actually paid for that business five years ago, that you don't bother to give Vip and Mr. Lawrence an opportunity to be the tenant of the property, right? That's what happened? You did that with that knowledge??
A. I was not (inaudible) a business. I had to look out for my property's best interest and choose the best tenant that was the best fit for my property.
[36] In its Factum the plaintiff submits that "if there is a credibility issue which precludes a finding of fact on the motion as to whether a representation has been made, then there is a genuine issue which requires a trial."
(b) Would the representation relied upon by the plaintiff, if accepted, support a claim based upon promissory estoppel?
[37] In determining whether there is a credibility issue on a material fact supporting the existence of a genuine issue requiring trial, it is necessary to determine whether the representation that the plaintiff alleges Kroner made would give rise to a claim for compensatory damages based upon promissory estoppel at law.
[38] The plaintiff points to the case of Maracle v. Travelers Indemnity Co. of Canada, [1991] 2 S.C.R. 50 for the principles of the doctrine of promissory estoppel. At para. 13 the Court stated as follows:
The principles of promissory estoppel are well settled. The party relying on the doctrine must establish that the other party has, by words or conduct, made a promise or assurance which was intended to affect their legal relationship and to be acted on. Furthermore, the representee must establish that, in reliance on the representation, he acted on it or in some way changed his position.
[39] The plaintiff cited the case of Engineered Homes Ltd. v. Mason, [1983] 1 S.C.R. 641 for the proposition that "the promise must be unambiguous but can be inferred from the circumstances." The specific passage or paragraph number in Engineered Homes for the proposition that a promise supporting a finding of promissory estoppel can be inferred from the circumstances was not indicated. At paragraph 7 of Engineered Homes McIntyre, J. adopted the following passage from 16 Hals. (4th) 1017, para. 1514, as follows:
- Promissory estoppel. When one party has, by his words or conduct, made to the other a clear and unequivocal promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert to their previous legal relations as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he himself has so introduced. This doctrine, which is derived from a principle of equity enunciated in 1877, has been the subject to considerable recent development and is still expanding. It differs from estoppel in pais in that the representation relied upon need not be one of present fact.
(emphasis added)
[40] At para. 7 McIntyre, J. emphasised the requirement that the promise or assurance must be unambiguous in stating "to succeed in this case, then, the respondents must show that the appellant, by words or conduct, made an unambiguous promise..."
[41] The case of Rogers Cable TV Ltd. v. 373041 Ontario Ltd., [1996] O.J. No. 2033 (S.C.J.) (reversed in part [1998] O.J. No. 5125 (C.A.)) involved a claim by the plaintiff Rogers that the defendant was bound by the terms of a Rights Agreement by which Rogers was to be the exclusive provider of cable services for a term of 20 years to multi-unit apartment complexes with an automatic renewal period. Rogers submitted that, by failing to respond to a clear communication from the plaintiff about the Rights Agreement, the defendant was estopped from denying the application of its terms.
[42] Epstein, J. (as she then was), after referring to the cases of Reclamation Systems v. Ontario (1996) (sub nom. Reclamation Systems Inc. v. Rae), 27 O.R. (3d) 419 (Gen. Div.) (and the cases therein referred to) and Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1995), 25 O.R. (3d) 106 (Gen. Div.), approved at paras. 62-64 the principles that "the plaintiff cannot assert promissory estoppel as a claim, but rather, only a defendant can assert it as a defence to prevent a promisor from asserting legal rights which he or she otherwise would have been able to assert under the contract in the absence of the promise" and "estoppel can never be used as a sword but only as a shield. A plaintiff cannot found his claim in estoppel."
[43] At para. 68, Epstein, J., after referring to pertinent passages from Fridman, The Law of Contract. 3d ed., concluded that the plaintiff Rogers was, in essence, attempting to produce contractual relations where the essential ingredients of a contract were lacking, namely consideration and agreement as to terms. One of the passages from Professor Fridman's text was at p. 124 as follows
"numerous statements in English and Canadian cases can be cited to support the proposition that this use of estoppel can be made only to affect accrued or inchoate rights, not to produce contractual relations where these essential ingredients of a contract, such as consideration or a clear and ascertained agreement as to terms, are lacking."
[44] Epstein, J. at para. 69, also found that Rogers could not succeed on the basis that the alleged "promise" was not unambiguous, stating as follows:
Even if I am wrong in my view and Rogers can rely upon the doctrine of promissory estoppel, I find that on the facts of this case the claim cannot succeed. The February 5 letter is far from clear. A claim of promissory estoppel cannot be based on such a vague reference to a contract.
[45] The plaintiff in the case at bar seeks to use the representation or assurance allegedly made by Kroner to found its claim for damages. It is clearly using promissory estoppel as a sword rather than a shield. The plaintiff did not cite any authority to support the proposition that the sword/shield distinction no longer has application in Canadian law in reference to promissory estoppel.
[46] In the case of Tudale Explorations Ltd. v Bruce, (1978) 20 O.R. (2d) 593 (Div. Ct.) Grange, J., writing for the panel, noted at para. 16 that the sword/shield maxim has been heavily criticized and, in obiter, expressed doubt about the logic of the distinction. However, he concluded that on the facts of the case it did not matter as the promise in question was indeed set up as a shield and not as a sword (see para. 16).
[47] It is also noted that the swords/shield principle does not bar a claim based upon the doctrine of proprietary estoppel (which has no application to the current case) (see Dutertre Manufacturing Inc. v. Palliser Regional Park Authority, 2012 SKQB 335 (Sask. Q.B.)
[48] I find that the weight of Canadian authority continues to support the proposition that promissory estoppel may not be used to found an autonomous cause of action in support of a claim for damages, as the plaintiff seeks to do in the case at bar.
[49] In the event that I am wrong in the application of sword/shield distinction, I also find that the plaintiff has failed to demonstrate that the representation or assurance upon which it relies is sufficiently unambiguous to support its claim.
[50] As noted above, in his affidavit Viplanarayanan deposed that Kroner represented that she "would cooperate with me on my sale of 189, as it concerned having a new owner enter into or be assigned the Lease Agreement for the premises." Effectively the plaintiff asserts that Kroner on behalf of 207 promised to accept an offer to lease submitted to it by a purchaser of the plaintiff's choosing, regardless of the terms proposed by such tenant such as rent, use, term, renewal rights, assignment and subletting rights etc., and regardless of the experience and credit-worthiness of the proposed tenant. The alleged representation effectively constituted an "agreement to agree." Even the insertion of a "reasonableness" qualifier does not satisfy the requirement that the promise relied upon be unambiguous.
[51] Although not referred to in the parties' Facta or in submissions, there is a remaining impediment to the plaintiff's claim based upon the alleged representation by Kroner by means of the "entire agreement" clause in the Acknowledgement Agreement as follows:
"The parties agree that the agreement constitute the entire terms of the agreement and no other representations or warranties except as expressly provided in the agreement form any part of the agreement between the parties."
[52] The plaintiff has not suggested a basis upon which the "entire agreement" clause would not apply to bar reliance upon Kroner's alleged representation.
[53] In my view there is no genuine issue requiring a trial with respect to the plaintiff's claim against the defendant 207 founded on the doctrine of promissory estoppel.
(c) Would the representation relied upon by the plaintiff, if accepted, support a claim based upon fraudulent misrepresentation?
[54] As indicated above, the plaintiff's claim against the defendant 207 based upon fraudulent misrepresentation was not pleaded and was not pressed by Mr. Lambert in submissions.
[55] In outlining the elements of a claim of fraudulent misrepresentation in its Factum the plaintiff cited the recent case of Kraik v. Ungar, 2020 ONSC 7221 (S.C.J.).
[56] Bell, J. stated as follows in Kraik at paras. 25-26:
25 As set out in Saul v. Himel (1994), 120 D.L.R. (4th) 432 (Ont. Gen. Div.), at pp. 435-436, aff'd, (1996), 133 D.L.R. (4th) 767 (Ont. C.A.), the required elements of fraudulent misrepresentation are:
(i) the representations complained of were made by the defendant;
(ii) the representations were false in fact;
(iii) when they were made, the representations were known to be false or they were made recklessly, that is, without knowing whether they were true or false;
(iv) the representations induced the plaintiff to enter the contract to his prejudice; and
(v) within a reasonable time after the discovery of the falsity of the representations, the plaintiff elected to void the contract and, accordingly, repudiated it.
26 A representation is a statement of past or present fact, in contrast to a promise or a prediction: Fasteners & Fittings Inc. v. Wang, 2020 ONSC 1649 (Ont. S.C.J.), at para. 145. In Fasteners & Fittings, Perell J. found a party's statement that it would deliver the shipment of fasteners after receiving pre-payment when the party had no intention of doing so, to be a promise or a prediction, not a statement of a past or present fact. Perell J. concluded that the fraudulent misrepresentation claim should be struck without leave to amend.
[57] The representation by Kroner relied upon by the plaintiff in the case at bar, namely that 207 would enter into a lease with a purchaser proposed by the plaintiff, is clearly a promise or a prediction and not a statement of past or present fact. The claim based upon fraudulent misrepresentation cannot therefore succeed on that basis alone, quite apart from the issues identified above in respect of the claim based upon promissory estoppel, including the vagueness of the alleged representation, the fact that it is an "agreement to agree" and the effect of the "entire agreement" clause.
[58] In my view there is no genuine issue requiring a trial with respect to the plaintiff's claim against the defendant 207 founded on fraudulent misrepresentation.
(d) The plaintiff's action against the Defendant Kroner for intentional interference with contractual relations
[59] In the case of Bram Enterprises v. A.I. Enterprises Ltd., 2014 SCC 12 Cromwell, J., writing for the Court, outlined the elements of the tort of intentional interference with contractual relations as follows at para. 5
In light of the history and rationale of the tort and taking into account where it fits in the broader scheme of modern tort liability, the tort should be kept within narrow bounds. It will be available in three-party situations in which the defendant commits an unlawful act against a third party and that act intentionally causes economic harm to the plaintiff.
[60] Cromwell, J. went on to state that the conduct towards the third party is unlawful if it would be actionable by the third party or would have been actionable if the third party had suffered loss as a result of it.
[61] The plaintiff in the case at bar submits that the defendant Kroner is personally liable to it for intentional interference with contractual relations between it and the defendant 207. The plaintiff led no evidence of any actionable conduct on the part of Kroner against 207 (the third party for the purpose of the analysis).
[62] I find that there is no genuine issue requiring a trial with respect to the plaintiff's claim against the defendant Kroner based upon intentional interference with contractual relations.
(e) Summary re motion for summary judgment
[63] Based upon the foregoing, I find that there are no genuine issues requiring a trial with respect to the plaintiff's claims against the defendants in the Amended Statement of Claim.
[64] In light of this finding it is not necessary to deal with the defendants' submission that the versions of the purported agreements of purchase and sale between the plaintiff 189 and Lawrence which have been produced by the plaintiff are fraudulent, and that the entire action is frivolous, vexatious and an abuse of process.
[65] The summary judgment motion process has provided the court with the evidence required to fairly and justly adjudicate the dispute and it is a timely, affordable and proportional procedure for making a final determination of the dispute. The plaintiff's action should therefore be dismissed.
(f) Plaintiff's motion to transfer the Small Claim's Court action to the Superior Court
[66] In light of my finding that the action should be dismissed it is unnecessary to rule upon the plaintiff's motion that the Small Claims Court proceeding be transferred to the Superior Court of Justice to be consolidated with or heard together with the within proceeding.
[67] However, in the event that I am wrong in granting summary judgment dismissing the action, I would not exercise the jurisdiction to transfer the Small Claims Court proceeding to the Superior Court to be consolidated or tried together with the within action.
[68] In Autometric Autobody Inc. v. High Performance Coatings Inc., 2014 ONSC 6073 (Div. Ct.) D. Brown, J. (as he then was), writing for the panel, confirmed at paras. 7 to 9 that a judge of the Superior Court of Justice possesses the inherent jurisdiction to transfer a Small Claims Court action to the Superior Court without the consent of the plaintiff (in this case 207) but, prior to doing so, the judge should inquire whether the issues raised in the Small Claims Court claim are capable of being justly and fairly resolved by the procedures available in the Small Claims Court.
[69] Nothing has been shown to indicate that 207's Small Claims Court action is not capable of being justly and fairly resolved by the procedures available in the Small Claims Court. The issues in the two actions are distinct and no appreciable judicial economy would be achieved by consolidating the actions or trying them together.
Disposition
[70] In accordance with the foregoing, it is ordered as follows:
(a) the defendants' motion for summary judgment is granted and the action is dismissed;
(b) the plaintiff's motion to transfer the Small Claims Court action in court file number SC-19-181 at Brantford, is dismissed.
Costs
[71] Counsel for the parties have requested that the question of costs be addressed in an oral hearing rather than by written submissions. The parties are directed to arrange a hearing date with the Trial Coordinator. The defendants shall serve and file a Bill of Costs or Costs Outline and a Factum and Book of Authorities (if applicable) at least 14 days prior to the hearing. The plaintiff shall serve and file a Factum and Book of Authorities (if applicable), and its own Costs Outline 4 days prior to the hearing. The Factums shall not exceed 10 double-spaced pages.
D.A. Broad
Date: February 10, 2021