Court File and Parties
COURT FILE NO.: CV-19-631473-A1
MOTION HEARD: 20221220
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jacek Napora, Plaintiff
AND:
Demilec Inc., Defendant
AND:
Daniel Clayton, Third Party
BEFORE: Associate Justice L. La Horey
COUNSEL: Martin J. Thompson, Counsel for the Moving Party, Defendant, Demilec Inc.
Krista Chaytor, Counsel for the Responding Party, Third Party, Daniel Clayton
Lluc Cerda, Counsel for the Responding Party, Plaintiff Jacek Napora, observing
HEARD: December 20, 2022 by videoconference
Endorsement
[1] The defendant, Demilec Inc. (“Demilec”), brings this motion for particulars of the third party defence of Daniel Clayton.
[2] Demilec has brought two similar motions for particulars of third party defences filed by Mr. Clayton in two other actions commenced against Demilec by two different plaintiffs: (i) Lance Brunk, Court File No. CV-19-00631455-00A1 (the “Brunk Action”); and, (ii) Stephen Lesperance, Court File No. CV-19-00631454-00A1 (the “Lesperance Action”). As in this action, Demilec is the only defendant and has issued a third party action against Mr. Clayton.
[3] At the outset of the hearing, the parties agreed that I would hear argument in this motion and that the result would apply in the motions in the Brunk Action and the Lesperance Action given that the actions are virtually identical for the purposes of this motion.
[4] The plaintiffs in each action allege, inter alia, that they were constructively dismissed by Demilec as a result of an alleged reassignment of a Demilec sales territory. Demilec denies that the plaintiffs were constructively dismissed. In this action, Mr. Napora alleges that he was constructively dismissed when a new permanent territory manager was appointed for Alberta. Demilec’s position is that the plaintiff had only been made responsible for Alberta on a temporary basis.
[5] Mr. Clayton was Demilec’s Vice President, Sales, Canada. He was the direct manager of each of the plaintiffs.
[6] When Mr. Napora was examined for discovery in the main action, he testified that Mr. Clayton told him that he would be permanently responsible for half of Demilec’s Alberta territory. The plaintiff also said that Mr. Clayton acted surprised when he told him that he had learned from Demilec officials in the U.S. that Demilec was hiring a permanent territory manager for Alberta.
[7] After the discovery of Mr. Napora, Demilec brought a third party claim against Mr. Clayton alleging that if the plaintiff reasonably believed that he had been made permanently responsible for half the Alberta territory, then he was deliberately misled by Mr. Clayton in breach of his duties to Demilec. Demilec seeks contribution and indemnity from Mr. Clayton and damages for breach of contract, gross negligence and breach of fiduciary duty.
[8] Demilec seeks particulars with respect to paragraphs 10 and 11 Mr. Clayton’s third party defence which state as follows:
In fact, Mr. Clayton did not think the timing was right to hire a new Alberta Territory Manager and communicated this to Demilec.
Mr. Clayton also communicated to Demilec that refusing to allow Mr. Napora the option to remain as one of the Alberta Territory Mangers would significantly impact Mr. Napora’s sales.
[9] For each of these paragraphs, Demilec seeks particulars of the date of any such communication, the person(s) to whom the communication was allegedly made, and the means of the alleged communication.
[10] Demilec submits that these issues are raised for the first time in the third party defence, the particulars are not within Demilec’s knowledge and that Demilec requires them to plead a different version of the facts in a reply to the third party defence.
[11] Demilec has submitted the affidavit of Elizabeth Lalli-Reese, a Vice President of Demilec’s parent company. Her evidence is that she oversaw the process through which Demilec sought to hire a permanent territory manager, in which Mr. Clayton participated and that any communications in this regard ought to have been directed to her or the Chief Executive Officer. She deposes that she was not aware of the alleged communications and that Demilec cannot respond to the communications without knowing the names of those who were the recipients of the alleged communications, and the dates and means by which the communications were made. Ms. Lalli-Reese was not cross-examined and her evidence is unchallenged.
[12] The parties agree on the test for particulars which is well-established. Particulars may be ordered when: (a) they are not within the knowledge of the party demanding them, and (b) they are necessary to enable the party requesting them to plead.[^1] The onus is on the party seeking the particulars to satisfy the court that they are necessary to plead.[^2]
[13] The role of particulars has been described by Justice Perell as follows:[^3]
Particulars are ordered primarily to clarify a pleading sufficiently to enable the adverse party to frame his or her answer, and their secondary purpose is to prevent surprise at trial. Particulars have the effect of providing information that narrows the generality of pleadings. Particulars define the issues, enable preparation for trial, prevent surprise at trial and facilitate the hearing. A function of particulars to a statement of claim is to define the claim sufficiently to allow a defendant to respond intelligently to it.
[14] In oral argument, Ms. Chaytor submitted that the “knowledge of the party”, for the purposes of the test, is not the knowledge of the affiant officer of the corporation. As I understand her argument, the party, Demilec, necessarily has the knowledge of its representatives and therefore “it knows” whether or not the communications took place and with whom etc., and consequently does not need particulars, regardless of the knowledge of the affiant.[^4] I do not accept this argument. For the practical purposes of particulars, it is not always to be expected that those responsible for the litigation will always be in a position to know or able to find out the particulars of interactions between the corporation and others. I accept Ms. Lalli-Reese’s unchallenged evidence that she is not aware of the alleged communications (but would have expected to be aware of any communications given her role) and that Demilec requires the particulars to plead.
[15] Mr. Clayton takes the position that the particulars are not necessary for pleading but instead seek evidence which is properly obtained during the discovery process. Particulars will be refused if the demand for particulars is being used as a way to discover evidence before examinations for discovery.[^5]
[16] Rule 25.06(1) of the Rules of Civil Procedure provides that every pleading must contain a concise statement of the materials facts on which the party relies for its claim or defence, but not the evidence by which those facts are to be proved. In the spectrum between “material facts” and “evidence” is the concept of “particulars”.[^6] Particulars are not evidence, but “additional bits of information, or data, or detail, that flesh out the ‘material facts.’”[^7]
[17] As Mr. Clayton has specifically referred to communications in paragraphs 10 and 11, he must believe that these communications are material facts. Demilec is seeking the basic details of the alleged communications: the other party to the communication, the date of the communication and the mode of communication.
[18] I disagree with the third party’s proposition that Demilec is trying to get a jump on discovery by its request. At discovery, Demilec will likely seek evidence about the alleged communications, such as the precise words spoken, the circumstances of the communication, if it was an oral communication, what the other party wrote or said in response, etc.
[19] Demilec submits that the particulars are required for its reply. Pursuant to Rule 25.08(1) a party who intends to prove a version of the facts different from that pleading in the opposite party’s defence, shall deliver a reply setting out the different version, unless it has already been pleaded in the claim. A reply is required where a party might take the opposite party by surprise or raise an issue that has not been raised by a previous pleading (Rule 25.08(2)).
[20] The alleged communications are not mentioned in Demilec’s third party claim. Therefore, it says that it will need particulars in order to deliver a reply as Demilec intends to prove a different version of the facts.
[21] Mr. Clayton responds by saying that Demilec is denying the allegations and no further particulars are required to deny the alleged communications, nor is a reply necessary.
[22] In my view this is too simplistic. Once provided with the particulars there are a number of alternate versions of the facts that Demilec may plead. It could plead a denial – the conversation did not happen. It could also accept that the communication took place, but plead that the plaintiff has mischaracterized the communication, or that the person to whom the communication was made was not a representative of the company at the material time, or the email if sent, was not received, etc. as the case may be.
[23] Mr. Clayton argues that an order requiring him to provide the requested particulars “would unfairly deprive him of the investigations afforded by the discovery process” and that he “is retired and does not have access to the emails and other documents which would assist in his recollection and articulation of the particulars of his case.” Mr. Clayton has not filed an affidavit, but instead has submitted a law clerk’s affidavit who deposes that she has “been advised by Mr. Clayton that he believes that he has virtually no records from when he worked at Demilec.” To the extent that this argument is relevant and available given the limited evidence filed, which I need not decide, the answer is that Mr. Clayton may respond by saying that he cannot recall the precise time of the communication without access to records, etc. if that is in fact the case.
[24] Demilec’s motion is granted and Mr. Clayton shall provide the requested particulars in this action within 30 days of the release of this endorsement. As agreed by counsel, the result in this action applies to the Brunk Action and the Lesperance Action and Mr. Clayton shall provide responses to the particulars in those actions within 30 days of the release of this endorsement.
[25] The parties are encouraged to agree to costs. If they cannot, Demilec may make written costs submissions of no more than three pages (exclusive of attachments) with 21 days and Mr. Clayton may respond within 21 days thereafter.
L. La Horey, A.J.
Date: January 4, 2023
[^1]: Obonsawin v Canada, 2001 CanLII 28431 (ON SC), [2001] O.J. 369 (S.C.J.) at para 33 [^2]: Obonsawin at para 36 [^3]: Brigaitis v IQT Ltd., 2012 ONSC 6584 at para 36 [^4]: Neither counsel was able to point me to any case supporting or refuting this argument. [^5]: Brigaitis at para 38 [^6]: Obonsawin at para 30 [^7]: Abbasbayli v. Fiera Foods Company, 2021 ONCA 95 at para 48 citing Copland v. Commodore Business Machines Ltd.(1985), 1985 CanLII 2190 (ON SC), 52 O.R. (2d) 586 (Master), appeal dismissed (1985), 52 O.R. (2d) 586n (H.C.J.); Obonsawin at para 30