Court File and Parties
COURT FILE NO.: CV-22-00690636-0000 DATE: 20240122 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: FILLER DEPOT, Plaintiff AND: COPART CANADA INC., Defendant
BEFORE: VERMETTE J.
COUNSEL: Shahryar Mazaheri, for the Plaintiff Adam Raikes, for the Defendant
HEARD: November 6, 2023
Endorsement
[1] The Defendant moves for an order striking out the Statement of Claim in its entirety or, in the alternative, an order striking specific paragraphs of the Statement of Claim. While the Defendant acknowledges that a couple of causes of action have been sufficiently pleaded, it alleges that the Plaintiff has failed to plead material facts and essential elements for its claims based on the following causes of action: (1) unlawful means tort, (2) oppression, (3) conspiracy, (4) deceit, fraudulent misrepresentation and civil fraud, and (5) breach of fiduciary duty. The Defendant does not object to leave to amend being granted.
[2] I agree with the Defendant’s position. The causes of action in issue have not been properly pleaded. The Plaintiff’s claims based on these causes of action are struck with leave to amend. Because of the manner in which the Statement of Claim is drafted and structured, it is not possible to strike specific paragraphs or even sentences of the Statement of Claim. As a result, the Plaintiff is ordered to deliver a Fresh as Amended Statement of Claim that complies with this decision within 30 days of the date of this decision.
A. Recusal Motion
[3] At the beginning of the hearing, counsel for the Plaintiff asked that I recuse myself. The only ground that he advanced in support of his request was that I had presided over another matter where he had represented clients who were unsuccessful in the litigation and had appealed my decision. When I asked counsel whether there were any other grounds supporting his request, he confirmed that there were no other grounds.
[4] I note that the other matter relied upon by counsel involved different parties/clients and a different area of law. I also note that since the hearing of this motion, the Court of Appeal has dismissed the appeal from my decision from the bench: see York Condominium Corporation No. 221 v. Mazur, 2024 ONCA 5 at para. 3.
[5] Impartiality reflects a state of mind in which the judge is disinterested in the outcome and is open to persuasion by the evidence and submissions. In contrast, bias reflects a state of mind that is closed or predisposed to a particular result on material issues. See Marchand (Litigation guardian of) v. Public General Hospital of Chatham (“Marchand”). The test for apprehension of bias is an objective test and has been formulated as follows: What would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude? Would the person think that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide fairly? See Peart v. Peel Regional Police Services at paras. 36-37 (“Peart”).
[6] As stated, the test is an objective one. While it is not unusual that a losing litigant (or counsel) honestly and, from their perspective, reasonably perceives the proceedings as unfair and the judge as partial, to equate that personal perception of bias with a reasonable apprehension of bias is to incorrectly use a subjective and inherently partial perspective to decide whether a proceeding was conducted impartially: see Peart at para. 54.
[7] An allegation of a reasonable apprehension of bias must overcome the strong presumption of judicial impartiality: Peart at para. 39. The party that makes the allegation must establish a reasonable apprehension of bias on the balance of probabilities: Peart at para. 40. Cogent evidence is required to make out an allegation of judicial bias. Suspicion is not enough. See Marchand at para. 131.
[8] In light of the foregoing principles, I dismissed the Plaintiff’s recusal motion at the beginning of the hearing. In my view, an informed person, viewing the matter realistically and practically, and having thought the matter through, would not conclude that it is more likely than not that I would not decide this matter fairly, whether consciously or unconsciously. There is no connection or similarity between this matter and the other matter. Further, the fact that a lawyer was unsuccessful before a judge in one matter and appealed the judge’s decision does not give rise to a reasonable apprehension of bias for every other matter in which the lawyer may be appearing before the judge. The ground raised by the Plaintiff does not even come close to overcome the strong presumption of judicial impartiality.
B. The Action
[9] The Statement of Claim was issued on November 22, 2022. The body of the Statement of Claim is six pages long and contains 41 paragraphs.
[10] The Plaintiff seeks the following relief in the Statement of Claim (reproduced verbatim):
i) Payment in the sum of $500,000.00 for breach of contract, unjust enrichment, loss and damages;
ii) Damages, in the amount to be particularized, for conspiring alone or with others unknown to the Plaintiff but known to the Defendant, to make changes to the Plaintiff’s online Copart account;
iii) An Order for disgorgement and restitution for unjust enrichment and any profit by the Defendants be transferred to the Plaintiff,
iv) A declaration that the Defendant or an individual working for with Defendant acted negligently and or in collaboration with the Defendant conspired to defraud the Plaintiff;
v) A declaration that the Defendant alone or in collaboration with others changed Plaintiff’s online Copart account with a scheme to defraud the Plaintiff;
vi) An Order for damages in the amount to be determined prior to trial for breach of fiduciary duty, breach of trust, tort of deceit, fraudulent misrepresentation and Civil fraud;
vii) a declaration that the defendants are liable for breach of trust committed during the time the Defendant was trusted with Plaintiff's Lots/vehicles in their possession;
viii) punitive damages against the Defendants in the amount of $100,000.00;
ix) In addition, and in the alternative, damages in the amount of $100,000.00 for economic interference, breach of contract, breach of fiduciary duty, unjust enrichment, breach of trust, and inducing the Plaintiff to sign Power of Attorney for tort of deceit, fraudulent misrepresentation and Civil fraud;
x) Interim and permanent injunctive relief against the Defendants from dealing with, exercising distrain over, profiting from, and undertaking of the Defendants from selling or assigning the vehicles in possession of the Defendant as particularized in this Statement of Claim;
xi) Payment of pre-judgment and post-judgment interest on the total amount due and found to be owing by the Defendant pursuant to the Courts of Justice Act, R.S.O. 1990, c. C.43 as amended;
xii) costs of this action on the basis of complete, or alternatively, substantial indemnity basis plus HST; and
xiii) such further and other relief as this Honourable Court may deem just.
[11] The allegations in the Statement of Claim primarily pertain to two vehicles owned by the Plaintiff that were sold by the Defendant at an auction. The following is a summary of the factual allegations in the Statement of Claim:
a. The two vehicles were erroneously placed by the Defendant as “pure sales” instead of “approved sales”.
b. On November 16, 2021, the Plaintiff’s owner notified the Defendant of its error and instructed the Defendant to remove the “pure sale” status.
c. The Defendant was aware of these instructions prior to the sale of the vehicles, but it negligently or intentionally proceeded with the transactions as “pure sales”.
d. Other vehicles of the Plaintiff were on “approval sale”, but the Defendant claimed that it never received an approval notification.
e. There were five other vehicles belonging to the Plaintiff in the Defendant’s possession. The whereabouts of two of these vehicles are currently unknown. The other three vehicles are on identified lots.
f. On January 5, 2022, the Plaintiff received an unknown charge of $1,504.00, even though the Plaintiff had already paid $346.50 for owner retain delivery for three lots. The Plaintiff’s owner notified the Defendant on January 7, 2022 about the unknown charge.
g. The Plaintiff has made several attempts to communicate with the Defendant and has advised the Defendant that it had fraudulently, unilaterally and intentionally changed the terms of the sale to “pure sale”, hence causing substantial financial loss to the Plaintiff.
h. The Defendant caused damages to the vehicles, including missing parts, when the vehicles were moved to the Defendant’s yard.
i. The Defendant charged for lots that were not sold, which is contrary to the parties’ agreement.
j. The Defendant overcharged for delivery of the vehicles in Edmonton and failed to comply with its contractual obligations.
k. The Defendant, unlawfully and without authorization of the Plaintiff, accessed the Plaintiff’s account and changed the status of the lots for sale thereby causing financial damage.
l. As a result of the “pure sale” of the two vehicles, they were sold well below retail value. The retail value of each vehicle was $90,000.00.
m. The Defendant was unjustly enriched when it charged the Plaintiff $1,504.00 without any valid reason.
[12] The following causes of action are mentioned in the Statement of Claim: breach of contract, unjust enrichment, conspiracy, negligence, deceit, fraudulent misrepresentation, civil fraud, breach of fiduciary duty, breach of trust, intentional infliction of economic loss by unlawful means/intentional interference with economic relations, and oppression.
C. General Principles Applicable on a Motion to Strike
[13] On a Rule 21.01 (1)(b) motion, a pleading will only be struck out if, assuming the facts pleaded to be true, it is plain and obvious that it discloses no reasonable cause of action – that is, where the pleading has no reasonable prospect of success: Potis Holdings Ltd. v. The Law Society of Upper Canada, 2019 ONCA 618 at para. 18.
[14] The Court of Appeal set out the principles applicable to a motion to strike in McCreight v. Canada (Attorney General), 2013 ONCA 483 at para. 39 (“McCreight”): [1]
- In the interests of efficiency and correct results, there is a need to weed out hopeless claims – this housekeeping dimension underlies Rule 21.
- If the cause of action pleaded has been recognized, all of its essential elements must be pleaded.
- If the cause of action has not been recognized, this is not necessarily fatal. One must ask whether there is a reasonable prospect that the claim will succeed.
- The claim should not be struck merely because it is novel.
- Unless manifestly incapable of being proven, the facts pleaded are accepted as being true for the purposes of the motion.
- The pleading forms the basis of the motion; possible future facts that have not been pleaded may not supplement the pleading.
- No evidence is admissible on such a motion.
- The pleading must be read generously in favour of the plaintiff, with allowances for drafting deficiencies.
- A motion to strike should not be confused with a summary judgment motion which has a different test, a different purpose, and different rules relating to evidence.
[15] Rule 25.06(1) of the Rules of Civil Procedure requires a statement of claim to contain a concise statement of the material facts on which the party relies for its claim. As a result, a defendant named in a statement of claim should be able to determine, upon review of the pleading, what it is alleged to have done that caused harm to the plaintiff, and when it was done: Burns v. RBC Life Insurance Company, 2020 ONCA 347 at para. 16. Vague allegations that make it impossible for an opposing party to reply should be struck: see Aristocrat Restaurants Ltd. (c.o.b. Tony’s East) v. Ontario, [2003] O.J. No. 5331 at para. 19 (S.C.J.).
[16] Although the court must accept as true the material facts as pleaded, this obligation does not extend to bald conclusory statements of fact, unsupported by material facts: Trillium Power Wind Corporation v. Ontario (Natural Resources), 2013 ONCA 683 at para. 31. Similarly, while a party may raise a point of law in a pleading, conclusions of law may be pleaded only if the material facts supporting them are pleaded: see Rule 25.06(2) of the Rules of Civil Procedure.
[17] Where fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading shall contain full particulars. However, knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred. See Rule 25.06(8).
[18] While no evidence is permitted on a motion to strike under Rule 21.01 (1)(b), the court may consider documents referred to in the claim. For a document to be properly considered as being incorporated by reference into the pleading, it is not enough that it has been referenced in the statement of claim. It must “form an integral part of the plaintiff’s claim” or of the “factual matrix of the statement of claim”: see McCreight at para. 32 and Allan Etherington v. National Hockey League, 2020 ONSC 5789 at para. 127.
[19] While a pleading may be struck, leave to amend should be denied only in the clearest of cases. The fact that the allegations are bald is not, in itself, a basis for refusing leave. Leave to amend should only be refused where it is clear that the deficiencies in the pleading cannot be cured by an appropriate amendment and the plaintiff cannot allege further material facts that the plaintiff knows to be true to support the allegations. The fact that amendments may have previously been made is a relevant consideration. See Miguna v. Ontario (Attorney General) at para. 22, Tran v. University of Western Ontario, 2015 ONCA 295 at para. 27, South Holly Holdings Limited v. The Toronto-Dominion Bank, 2007 ONCA 456 at para. 6 and Horfil Holding Corp. v. Queens Walk Inc., 2019 ONSC 1381 at paras. 33-34.
D. Evidence Filed by the Plaintiff
[20] Most of the Defendant’s motion is based on Rule 21.01(1)(b), i.e., on the ground that the pleading does not disclose a reasonable cause of action with respect to some of the causes of action that are pleaded. As stated above, no evidence is admissible on such a motion. Contrary to this rule, the Plaintiff has filed evidence on this motion.
[21] The Plaintiff’s Motion Record includes an affidavit of the legal assistant of the Plaintiff’s lawyer. The affidavit contains hearsay evidence from the Plaintiff’s owner and attaches eight exhibits. The last exhibit is a letter setting out a settlement offer, which is improperly before the Court. Further, with the exception of one or two exhibits, [2] the documents that are attached to the affidavit are not documents that are referred to in the Statement of Claim. Therefore, they are inadmissible for the purpose of the motion under Rule 21.01(1)(b). As for the one or two exceptions, I am of the view that they do not meet the test for a document to be properly considered as being incorporated by reference into a pleading because they do not form an integral part of the Plaintiff’s claim or of the factual matrix of the Statement of Claim. Therefore, these documents are also inadmissible.
[22] In addition to relying on Rule 21.01(1)(b), the Defendant argues that five specific paragraphs of the Statement of Claim should be struck as scandalous, frivolous or vexatious under Rule 25.11 because they are incomplete, incoherent, incomprehensible or illegible. The Defendant also argues in the alternative that certain paragraphs that refer to deceit, fraudulent misrepresentation and civil fraud should be struck as scandalous, frivolous or vexatious under Rule 25.11 if they are not struck under Rule 21.01(1)(b). While evidence is admissible in a motion under Rule 25.11, the evidence must be relevant to the motion that is before the court: see Baradaran v. Alexanian, 2016 ONCA 533 at para. 16. I find that the evidence in the Plaintiff’s Motion Record is not relevant to the issue of whether the specific paragraphs in issue ought to be struck based on the grounds advanced by the Defendant.
[23] Although I conclude that the evidence filed by the Plaintiff is inadmissible, I note that my decision on this motion would have been exactly the same had I considered the evidence.
E. Discussion
[24] While the Defendant acknowledges that the causes of action of breach of contract and unjust enrichment have been sufficiently pleaded in the Statement of Claim, the Defendant alleges that the Plaintiff has failed to plead material facts and essential elements for its claims based on the following causes of action: (1) unlawful means tort, (2) oppression, (3) conspiracy, (4) deceit, fraudulent misrepresentation and civil fraud, and (5) breach of fiduciary duty. The Defendant does not object to leave to amend being granted.
[25] The Defendant also seeks to strike five paragraphs on the basis that they are incomplete, incoherent, incomprehensible or illegible.
[26] I discuss below each of the causes of action in issue. I then address the issue of the incomplete/incomprehensible paragraphs and the appropriate remedy.
1. Unlawful means tort
[27] In A.I. Enterprises Ltd. v. Bram Enterprises Ltd., 2014 SCC 12 (“A.I. Enterprises”), the Supreme Court of Canada discussed the unlawful means tort. Cromwell J. noted that this tort had been variously referred to as “unlawful interference with economic relations”, “interference with a trade or business by unlawful means”, “intentional interference with economic relations”, or simply “causing loss by unlawful means”. See A.I. Enterprises at para. 2.
[28] The essential elements of the unlawful means tort are the intentional infliction of economic injury on the plaintiff by the defendant’s use of unlawful means against a third party. The Supreme Court stated that this tort should be kept within narrow bounds, and is only 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. For the purpose of this tort, conduct 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. See A.I. Enterprises at paras. 5 (A) and 23.
[29] The elements of the unlawful means tort are not properly pleaded in this case. Among other things, the Plaintiff has not pleaded any unlawful act against a third party. Further, the Plaintiff has not pleaded full particulars with respect to the Defendant’s alleged intent to cause economic harm to the Plaintiff, as required by Rule 25.06(8). The Plaintiff must plead circumstances, particulars or facts which are sufficient to enable a trier of fact to infer intentional conduct.
[30] Thus, the Plaintiff’s claim for the tort of unlawful means is struck with leave to amend.
2. Oppression
[31] Subsection 248(2) of the Business Corporations Act, R.S.O. 1990, c. B.16 states as follows: [3]
Where, upon an application under subsection (1), the court is satisfied that in respect of a corporation or any of its affiliates,
(a) any act or omission of the corporation or any of its affiliates effects or threatens to effect a result;
(b) the business or affairs of the corporation or any of its affiliates are, have been or are threatened to be carried on or conducted in a manner; or
(c) the powers of the directors of the corporation or any of its affiliates are, have been or are threatened to be exercised in a manner,
that is oppressive or unfairly prejudicial to or that unfairly disregards the interests of any security holder, creditor, director or officer of the corporation, the court may make an order to rectify the matters complained of.
[32] A complainant who alleges oppression must identify their reasonable expectations, establish that they were reasonably held, and show that they were violated by corporate conduct that was oppressive, unfairly prejudicial to, or that unfairly disregarded the reasonable expectations of the complainant. In assessing a claim of oppression, a court must answer two questions: (1) Does the evidence support the reasonable expectation asserted by the claimant? and (2) Does the evidence establish that the reasonable expectation was violated by conduct falling within the terms “oppression”, “unfair prejudice” or “unfair disregard” of a relevant interest? See BCE Inc. v. 1976 Debentureholders, 2008 SCC 69 at paras. 68, 70, and The Investment Administration Solutions Inc. v. Pro-Financial Asset Management Inc., 2018 ONSC 1220 at para. 86.
[33] While the word “oppression” appears in a heading in the Statement of Claim, the Plaintiff has not properly pleaded the essential elements of this cause of action. Among other things, the Plaintiff has not pleaded:
a. the capacity in which the Plaintiff is seeking relief and is a “complainant” under the relevant statute (e.g., creditor);
b. the Plaintiff’s expectations;
c. facts supporting the reasonableness of the Plaintiff’s expectations;
d. violation of the Plaintiff’s reasonable expectations by conduct of the Defendant; and
e. facts supporting that the conduct of the Defendant was oppressive or unfairly prejudicial to or unfairly disregarded the interests of a security holder, creditor, director or officer of the corporation.
[34] As a result, the Plaintiff’s claim for oppression is struck with leave to amend.
3. Conspiracy
[35] There are two types of actionable conspiracy: predominant purpose conspiracy and unlawful means conspiracy. Predominant purpose conspiracy is made out where the predominant purpose of the defendant’s conduct is to cause injury to the plaintiff using either lawful or unlawful means, and the plaintiff does in fact suffer loss caused by the defendant’s conduct. Unlawful means conspiracy requires no predominant purpose but requires that the unlawful conduct in question be directed toward the plaintiff, that the defendant should know that injury to the plaintiff is likely to result, and that the injury to the plaintiff does in fact occur. See Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57 at paras. 73-74, 80.
[36] In an action founded in civil conspiracy, it is not sufficient for the plaintiff to allege that the defendants conspired together intentionally to harm the plaintiff. The statement of claim must include, with clarity and precision, particulars of (i) the parties and their relationships, (ii) the agreement to conspire, (iii) the precise purpose or objects of the alleged conspiracy, (iv) the overt acts that are alleged to have been done by each of the conspirators, and (v) the injury and particulars of the special damage suffered by the plaintiff by reason of the conspiracy. See Normart Management Ltd. v. West Hill Redevelopment Co., and Kates v. Trapeze Asset Management Inc., 2019 ONSC 3483 at para. 39.
[37] I note that the Statement of Claim refers on at least one occasion to the Defendant “conspiring alone”. There is no cause of action for “conspiring alone”.
[38] The references to conspiracy in the Statement of Claim are cursory and almost in passing. The elements of the tort of conspiracy are not properly pleaded. Among other things, the Plaintiff has not pleaded particulars of the agreement to conspire, the parties, and the overt acts in furtherance of the conspiracy.
[39] Therefore, the Plaintiff’s claim for conspiracy is struck with leave to amend.
4. Deceit, fraudulent misrepresentation and civil fraud
[40] Courts use the same test for civil fraud, deceit and fraudulent misrepresentation. The five elements of the test are as follows: (a) a false representation of fact by the defendant to the plaintiff; (b) knowledge that the representation is false, absence of belief in its truth, or recklessness as to its truth; (c) an intention that the plaintiff act in reliance on the representation; (d) the plaintiff acting on the representation; and (e) the plaintiff suffering a loss in doing so. See Paulus v. Fleury, 2018 ONCA 1072 at paras. 8-9.
[41] A pleading of deceit, fraudulent misrepresentation and civil fraud must contain full particulars: see Rule 25.06(8). This means that the pleading must set out the following with careful particularity:
a. the alleged misrepresentation itself;
b. when, where, how, by whom and to whom it was made;
c. its falsity;
d. the inducement;
e. the intention that the plaintiff should rely on it;
f. the alteration by the plaintiff of their position relying on the misrepresentation; and
g. the resulting loss or damage to the plaintiff.
See Hamilton v. Osborne, 2009 ONCA 684 at paras. 34-35.
[42] The elements of deceit, fraudulent misrepresentation and civil fraud are not properly pleaded in this case. The Statement of Claim arguably refers to some of the elements of this tort (e.g., a reference to “untrue or inaccurate statement made by the Defendant”), but only bald statements are pleaded without any particularity. Importantly, the pleading does not identify any specific false representation and the circumstances in which such representation was made.
[43] Consequently, the Plaintiff’s claim for deceit, fraudulent misrepresentation and civil fraud is struck with leave to amend.
5. Breach of fiduciary duty
[44] In cases not covered by an existing category in which fiduciary duties have been recognized (e.g., solicitor-client relationship), a plaintiff must show the following for an ad hoc fiduciary duty to arise (see Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24 at para. 36):
a. an undertaking by the alleged fiduciary to act in the best interests of the alleged beneficiary or beneficiaries;
b. a defined person or class of persons vulnerable to the fiduciary’s control (the beneficiary or beneficiaries); and
c. a legal or substantial practical interest of the beneficiary or beneficiaries that stands to be adversely affected by the alleged fiduciary’s exercise of discretion or control.
[45] A claim for breach of fiduciary duty may only be founded on breaches of the specific obligations imposed because the relationship is one characterized as fiduciary: Galambos v. Perez, 2009 SCC 48 at para. 37.
[46] The elements of the cause of action of breach of fiduciary duty are not properly pleaded in the Statement of Claim. Among other things, the Plaintiff has not pleaded any facts supporting the recognition of a fiduciary duty between the Plaintiff and the Defendant.
[47] As a result, the Plaintiff’s claim for breach of fiduciary duty is struck with leave to amend.
6. Incomplete and incomprehensible paragraphs
[48] Paragraph 2 of the Statement of Claim is an incomplete sentence. It stops in the middle of the sentence.
[49] Paragraph 3 is also an incomplete sentence. It stops in the middle of an incomplete word.
[50] Paragraph 6 is a sentence that is incoherent. It is grammatically incorrect and appears to miss a number of words and/or incorrectly include certain words.
[51] Paragraph 20 appears to start with the last word of a missing sentence. It reads as follows:
law. Accordingly, the Plaintiff says it is entitled to exemplary, punitive and/or aggravated damages.
[52] While I agree with the Defendant that paragraphs 2, 3, 6 and 20 are deficient for the reasons stated above, I do not agree that paragraph 19 is also deficient. The sentence in paragraph 19 is coherent and understandable. The only issue is that it misses a period at the end.
[53] For the reasons set out below, I am ordering the Plaintiff to deliver a Fresh as Amended Statement of Claim. This being the case, it is unnecessary to make a specific order with respect to paragraphs 2, 3, 6 and 20. [4] The Plaintiff shall ensure that these and other paragraphs in the Fresh as Amended Statement of Claim are complete, coherent and understandable.
7. Adequate remedy
[54] Given the manner in which the Statement of Claim is drafted and structured, I am of the view that it is neither possible nor productive to try to identify with precision the paragraphs and/or sentences that need to be struck out and those that do not need to be in order to implement this decision. This is because many sections/paragraphs/sentences refer to more than one causes of action, some of which have not been struck. Further, if only part of a section/paragraph/sentence were to be struck, what would remain would not necessarily make sense.
[55] Therefore, the Plaintiff is ordered to deliver a Fresh as Amended Statement of Claim that complies with this decision.
[56] As set out in the previous section, the Plaintiff needs to ensure that the sentences in the Fresh as Amended Statement of Claim are complete, coherent and understandable. I would also urge the Plaintiff to consider the following:
a. While leave to amend has been granted, it is unlikely that all of the causes of action discussed above are appropriate in this case. The Plaintiff should consider the essential elements of all of these causes of action and whether it is appropriate to plead them in light of the facts of this case.
b. The readability and legibility of the Statement of Claim could be improved, keeping in mind that the judge reading the Statement of Claim is not familiar with the facts and likely has no knowledge of the particular industry in which the parties operate. For example, there is no explanation anywhere in the Statement of Claim of what a “pure sale” is.
F. Conclusion
[57] The motion is granted.
[58] The Plaintiff’s claims for (1) unlawful means tort, (2) oppression, (3) conspiracy, (4) deceit, fraudulent misrepresentation and civil fraud, and (5) breach of fiduciary duty are struck with leave to amend. The Plaintiff is ordered to deliver a Fresh as Amended Statement of Claim that complies with this decision within 30 days of the date of this decision.
[59] If costs cannot be agreed upon, the Defendant shall deliver submissions of not more than three pages (double-spaced), excluding the costs outline, by February 5, 2024. The Plaintiff shall deliver its responding submissions (with the same page limit) by February 19, 2024. The submissions of all parties shall also be sent to my assistant by e-mail and uploaded onto CaseLines.
Vermette J. Date: January 22, 2024
[1] In its Factum, the Plaintiff relies on cases dealing with motions to strike decided under the Family Law Rules. The principles set out in these cases are different from the principles applicable in motions to strike under Rules 21 and 25 of the Rules of Civil Procedure.
[2] The two potential exceptions are: (1) listings of vehicles on the Defendant’s website, which are referred to in paragraph 10 of the Statement of Claim; and (2) what are described as “Copart Dealer Services Agreements”. The second exception may not be a valid one because it is unclear whether the documents attached as “Copart Dealer Services Agreements” are, in fact, documents referred to in the Statement of Claim. While an “agreement” is referred to in paragraph 14 of the Statement of Claim and a “contract” is referred to in paragraph 17, the “Copart Dealer Services Agreements” do not appear to be the documents that are referred to in these paragraphs because their contents do not correspond to what is pleaded. I also note that the documents are entitled “High Priority Dealer Pick Up” rather than “Copart Dealer Services Agreement”.
[3] The Statement of Claim does not plead which provincial or federal statute the Plaintiff relies on with respect to its oppression claim. For the purpose of my analysis, I use the Ontario statute, but I note that the corresponding provisions in the federal statute are substantially the same.
[4] Counsel for the Defendant clarified at the hearing that the Defendant was not “firmly requesting” that these paragraphs be struck and was simply seeking clarity so that it could properly respond to the allegations in the Statement of Claim instead of simply denying incoherent allegations.