Abas Auto Inc. v. Superior General Partners Inc., (2014) 313 Man.R.(2d) 13 (QBM)

• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: November 24, 2014
• Jurisdiction: Manitoba
• Citations: (2014), 313 Man.R.(2d) 13 (QBM);2014 MBQB 231

Abas Auto v. Superior General (2014), 313 Man.R.(2d) 13 (QBM)

MLB headnote and full text

Temp. Cite: [2014] Man.R.(2d) TBEd. DE.008

Abas Auto Inc. (plaintiff) v. Superior General Partners Inc. (defendant)

(CI 11-01-71823; 2014 MBQB 231)

Indexed As: Abas Auto Inc. v. Superior General Partners Inc.

Manitoba Court of Queen's Bench

Winnipeg Centre

Cooper, Master

November 24, 2014.

Summary:

In June 2011, the defendant filed a statement of defence, asserting that the plaintiff's claim was not brought within the two year limitation period. The plaintiff replied that the action was timely as it was within the six year limitation period for damage to real property. In June 2013, the defendant moved to strike the claim as disclosing no reasonable cause of action. The defendant's position was that the claim failed to plead the material facts necessary to establish an action in negligence for damage to real property. In response, the plaintiff filed an affidavit by Abas, its president, and a motion brief. Abas stated that the parties had exchanged affidavits of documents and had obtained expert reports, copies of which were attached to the affidavit "for information only". The defendant moved to expunge the Abas affidavit and the motion brief and for an order requiring the plaintiff to file a new proper motion brief.

A Master of the Manitoba Court of Queen's Bench granted the motion in part. None of the authorities supporting a "hard and fast" rule against evidence on motions to strike for no cause of action involved a situation where a defence had been filed and a timing issue was raised. The evidence as to the timing was relevant. The motion to expunge was denied in that respect. However, the attached expert reports were not relevant to the issue and were expunged.

Practice - Topic 2200

Pleadings - Striking out pleadings - General principles - [See Practice - Topic 3666 ].

Practice - Topic 2210

Pleadings - Striking out pleadings - Time for objection or application - [See Practice - Topic 3666 ].

Practice - Topic 3603

Evidence - Affidavits - General - Contents of (incl. attachments) - [See Practice - Topic 3666 ].

Practice - Topic 3666

Evidence - Affidavits - Striking out - Irrelevant or improper matters - In June 2011, the defendant filed a statement of defence, asserting that the plaintiff's claim was not brought within the two year limitation period - The plaintiff replied that the action was timely as it was within the six year limitation period for damage to real property - In June 2013, the defendant moved to strike the claim as disclosing no reasonable cause of action - The defendant's position was that the claim failed to plead the material facts necessary to establish an action in negligence for damage to real property - In response, the plaintiff filed an affidavit by Abas, its president, and a motion brief - Abas stated that the parties had exchanged affidavits of documents and had obtained expert reports, copies of which were attached to the affidavit "for information only" - The defendant moved to expunge the Abas affidavit and the motion brief and for an order requiring the plaintiff to file a new proper motion brief - The plaintiff agreed that, generally, affidavits were not allowed on motions to dismiss under Queen's Bench Rule 25.11(d), but asserted that the evidence was relevant here because it spoke to two issues: (1) that such motions to strike should generally be brought before a defence was filed and (2) whether the defendant had been misled by the statement of claim - A Master of the Manitoba Court of Queen's Bench granted the motion in part - None of the authorities supporting a "hard and fast" rule against evidence on motions to strike for no cause of action involved a situation where a defence had been filed and a timing issue was raised - The evidence as to the timing was relevant - The motion to expunge was denied in that respect - However, the attached expert reports were not relevant to the issue and were expunged.

Practice - Topic 3682

Evidence - Affidavits - Use of - Interlocutory applications and motions - [See Practice - Topic 3666 ].

Cases Noticed:

Kreiner v. Auditor General et al., [2006] Man.R.(2d) Uned. 86; 2006 MBQB 257, refd to. [para. 11].

Basaraba v. Manitoba Court of Queen's Bench (2006), 201 Man.R.(2d) 302; 366 W.A.C. 302; 2006 MBCA 27, refd to. [para. 12].

Basaraba v. Rutley - see Basaraba v. Manitoba Court of Queen's Bench.

Farrow v. Manitoba (Attorney General) et al. (2009), 244 Man.R.(2d) 13; 2009 MBQB 127, refd to. [para. 18].

Tymkin v. Ewatski (2007), 215 Man.R.(2d) 251; 2007 MBQB 99, refd to. [para. 23].

Centaur Products Inc. v. Finmac Lumber Ltd. (2005), 193 Man.R.(2d) 282; 2005 MBQB 98 (Master), refd to. [para. 23].

Suppal v. Suppal et al. (2008), 233 Man.R.(2d) 146; 2008 MBQB 253, refd to. [para. 23].

Chrysler Canada Inc. v. Eastwood Chrysler Dodge Ltd. et al. (2010), 262 Man.R.(2d) 1; 507 W.A.C. 1; 2010 MBCA 75, refd to. [para. 24].

Robertson v. Manitoba Keewatinowi Okimakanak Inc. et al. (2011), 262 Man.R.(2d) 126; 507 W.A.C. 126; 2011 MBCA 4, refd to. [para. 24].

Board of Education of Winnipeg School Division No. 1 v. Winnipeg Teachers' Association of the Manitoba Teachers' Society (2004), 196 Man.R.(2d) 214; 2005 MBQB 88 (Master), refd to. [para. 28].

Counsel:

Jason E. Roberts, for the plaintiff;

Steve M. Scarfone, for the defendant.

This motion was heard by Cooper, Master, of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on November 24, 2014.