On February 4, 20011 Richard Hayles, a commercial litigator with Heydary Hamilton PC, appeared before Master Sproat of the Ontario Superior Court on behalf of a Dutch Manufacturer of horticultural equipment.
The Manufacturer had been sued by a commercial Greenhouse in Ontario, which claimed that equipment it had purchased from the Manufacturer did not function in accordance with certain representations that the Manufacturer and Distributor had made in order to induce the Greenhouse into purchasing the equipment.
The Manufacturer brought a motion seeking particulars of the alleged representations. Specifically, the Manufacturer challenged numerous paragraphs in the Statement of Claim, and in a set of Answers provided by the Greenhouse to the Manufacturer’s Demand for Particulars, in which the Greenhouse alleged that the representations had been made “repeatedly”, or “continuously”, over lengthy periods of time (ranging from nine months to four and a half years).
Mr. Hayles was able to convince Master Sproat that further particulars of these allegations were required. In the words of the Master: “…it is my view that the dates of the alleged misrepresentations should and must be provided to meet the high threshold of material fact disclosure and particularity of a misrepresentation claim.”
The Master was also persuaded that particulars were required of allegations by the Greenhouse to the effect that, after the equipment was installed, the Manufacturer made repeated promises over extended periods of time to the effect that the Manufacturer and Distributor would fix the problem and make the equipment operational. This was held to be relevant and required so that the Manufacturer could plead to issues of discoverability and waiver arising out of a limitation period defence: “There is an added need for particulars in light of the ambiguity as to the relevant limitation period and whether the claim is barred.”
According to the Master, the fact that the Manufacturer had not filed an affidavit stating that the particulars were not within its knowledge was no bar to the relief sought on a motion: “It is a fundamental tenet of pleading that the defendant be entitled to know case being pleaded against him.”
In the end, the Master gave an order requiring the particulars requested by the Manufacturer, and ordered the plaintiff Greenhouse to pay over $6000 in costs.
Heydary Hamilton PC
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