Normart Management Ltd. v. West Hill Redevelopment Co. et al., (1998) 113 O.A.C. 375 (CA)

• Judge: Finlayson, Charron and Goudge, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 07, 1998
• Jurisdiction: Ontario
• Citations: (1998), 113 O.A.C. 375 (CA);1998 CanLII 2447 (NS CA);1998 CanLII 2447 (ON CA);37 OR (3d) 97;155 DLR (4th) 627;41 CCLT (2d) 282;[1998] CarswellOnt 251;[1998] OJ No 391 (QL);113 OAC 375;17 CPC (4th) 170;77 ACWS (3d) 518

Normart Mgt. v. West Hill Redev. (1998), 113 O.A.C. 375 (CA)

MLB headnote and full text

Temp. Cite: [1998] O.A.C. TBEd. MR.001

Normart Management Limited (plaintiff/appellant) v. West Hill Redevelopment Company Limited, Betovan Construction Limited, 1133373 Ontario Inc., Joseph Lebovic, Wolf Lebovic and Thomas Kohn (defendants/respondents)

(C25986)

Indexed As: Normart Management Ltd. v. West Hill Redevelopment Co. et al.

Ontario Court of Appeal

Finlayson, Charron and Goudge, JJ.A.

February 3, 1998.

Summary:

The plaintiff claimed damages for breach of contract from the corporate defendants and damages for conspiracy from the personal defendants. The defendants moved to strike out paragraphs in the statement of claim as they related to an allegation of conspiracy and to dismiss the action against the personal defendants.

The Ontario Court (General Division), in a decision reported 16 O.T.C. 63, held that the conspiracy claim was not sustainable and it was struck. The court stated that the conspiracy became irrelevant if the breach of contract was proved and a conspiracy that did not result in damages was not actionable. The plaintiff appealed.

The Ontario Court of Appeal dismissed the appeal but gave the plaintiff leave to serve an amended statement of claim within 30 days.

Company Law - Topic 4183

Directors - Liability of directors - For torts - [See Torts - Topic 5702 and both Torts - Topic 5706 ].

Company Law - Topic 4566

Officers and agents - Liability - General - For tortious acts - [See Torts - Topic 5702 and both Torts - Topic 5706 ].

Torts - Topic 5702

Conspiracy - General - Pleadings - The plaintiff sued the corporate defendants for breach of contract (joint venture agreement) - It also sued the officers and directors of the corporate defendants for conspiracy - The Ontario Court of Appeal agreed that the conspiracy action against the officers and directors was not sustainable - There was no basis for a separate cause of action in conspiracy against them - The pleadings did not set out facts which pointed to specific tortious acts independent of the breach of contract - There was no allegation that the officers and directors were acting outside the scope of their authority or not acting in the best interests of the corporations - There was no detail concerning overt acts in furtherance of the conspiracy nor an indication of damages caused by the conspiracy as opposed to the breach - See paragraphs 1 to 22.

Torts - Topic 5706

Conspiracy - General - Conspiracy - What constitutes - The plaintiff sued the corporate defendants for breach of contract (joint venture agreement) - It also sued the officers and directors of the defendant corporations for conspiracy - The Ontario Court of Appeal stated that, assuming cold calculation, the decision of the directing minds of the two corporate entities to cause their corporations to ignore their corporate obligations under the joint venture agreement and pursue an independent course did not amount to a conspiracy by the directing minds to injure the third contracting party or its directing mind - See paragraph 26.

Torts - Topic 5706

Conspiracy - General - Conspiracy - What constitutes - The Ontario Court of Appeal stated that "... an agreement between two corporations to injure can amount to the tort of conspiracy, but it does not necessarily follow that those who as directing minds caused their respective corporations to enter into the agreement are themselves party to the conspiracy." - See paragraph 19.

Cases Noticed:

Montreal Trust Co. of Canada et al. v. Scotia McLeod Inc. et al. (1995), 87 O.A.C. 129; 26 O.R.(3d) 481 (C.A.), refd to. [para. 18].

Scotia McLeod Inc. v. Peoples Jewellers Ltd. - see Montreal Trust Co. of Canada et al. v. Scotia McLeod Inc. et al.

H.A. Imports of Canada Ltd. v. General Mills Inc. (1983), 42 O.R.(2d) 645 (H.C.), refd to. [para. 21].

Ontario Store Fixtures Inc. v. Mmmuffins Inc. et al. (1989), 70 O.R.(2d) 42 (H.C.), refd to. [para. 22].

Canada Cement LaFarge Ltd. et al. v. British Columbia Lightweight Aggregate Ltd. et al., [1983] 1 S.C.R. 452; 47 N.R. 191, refd to. [para. 23].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321; 4 C.C.L.T.(2d) 1; 43 C.P.C.(2d) 105; 49 B.C.L.R.(2d) 273; 74 D.L.R.(4th) 321; [1990] 6 W.W.R. 385, dist. [para. 27].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Ward v. Lewis, [1955] 1 All E.R. 55 (C.A.), refd to. [para. 28].

Authors and Works Noticed:

Bullen, Leake and Jacobs, Precedents of Pleadings (12th Ed. 1975), pp. 646, 647 [para. 21].

Counsel:

J.L. McDougall and N.J. Emblem, for the appellant;

Thomas McRae, for the respondents, West Hill, 1133373 Ont. and Lebovics;

D. Richards-Loghrin, for the respondents, Betovan and Kohn.

This appeal was heard on January 7, 1998, before Finlayson, Charron and Goudge, JJ.A., of the Ontario Court of Appeal. Finlayson, J.A., released the following judgment for the court on February 3, 1998.