



COURT OF APPEAL FOR ONTARIO

CITATION:
Keparutis v. Canamould
    Extrusions Inc., 2012 ONCA 844

DATE: 20121130

DOCKET: C55387

Laskin, MacPherson and Gillese JJ.A.

BETWEEN

Kestutis Keparutis

Plaintiff (Respondent)

and

Canamould Extrusions Inc., 888804 Ontario Limited,
    Amadri Cutting Inc., Amadri Machining Inc. and Ned Santarossa

Defendants (Appellants)

Michael Reid, for the appellants

Marc Munro, for the respondent

Heard and released orally: November 28, 2012

On appeal from the judgment of Justice James A. Ramsay of
    the Superior Court of Justice, dated March 21, 2012.

ENDORSEMENT

[1]

The appellants, Canamould Extrusions Inc. (Canamould) and related
    companies and Nedo Santarossa, appeal from the judgment of Ramsay J. of the
    Superior Court of Justice dated March 21, 2012. In that judgment, the motion
    judge dismissed the appellants request for an adjournment of the motion
    hearing, granted the appellants request to amend some of the paragraphs in its
    Statement of Defence, refused the appellants request to amend other paragraphs
    in the same document, and awarded the respondent costs of $5,000. The
    appellants appeal the components of this judgment relating to the motion
    judges refusal to grant an adjournment and his refusal to allow amendments to
    some paragraphs in the Statement of Defence.

[2]

Canamould is in the business of manufacturing and selling decorative
    foam moulding pieces for buildings. Between April 2004 and February 2007, Mr.
    Keparutis performed services for Canamould with respect to fireplace moulding
    pieces only. There is an agreement in writing for the services provided by Mr.
    Keparutis for the first two weeks of this period, but no written agreement for
    the rest of the term.

[3]

The services provided by Mr. Keparutis included designing moulds,
    creating a sculptured three-dimensional casting mould that could be used as the
    template for the decorative moulding pieces manufactured by Canamould, and
    advising Canamoulds employees regarding the pouring of foam material into the
    template that he had sculpted.

[4]

Mr. Keparutis invoiced Canamould daily for the services he provided
    after the initial two week period. The majority of the invoices were for $300
    per day.

[5]

In February 2007, Canamould informed Mr. Keparutis that his services
    were no longer required. He commenced an action seeking damages for breach of
    contract and breach of copyright.

[6]

After pleadings and discoveries, after consenting to the action being
    set down for trial, and indeed on the eve of trial, the defendants sought to
    amend their Statement of Defence. The motion judge allowed some amendments and
    refused others. Specifically, he denied leave to plead,
inter alia
,
    that Mr. Keparutis was an employee of Canamould rather than an independent
    contractor and that there was a licence permitting Canamould to use Mr.
    Keparutis design and template. The appellants appeal these components of the
    motion judges order.

(a)

The Request for an Adjournment

[7]

The appellants contend that the motion judge erred by not granting their
    request for an adjournment of the motion hearing to cross-examine Mr. Keparutis
    on his affidavit and to file reply materials.

[8]

The granting of an adjournment is a discretionary matter. The motion
    judge gave reasons for refusing the adjournment. We see nothing in those
    reasons that would call into question the motion judges exercise of discretion
    on this issue.

(b)

The Proposed Amendments to the Statement of Defence

[9]

The appellants submit that the motion judge erred by not permitting them
    to amend their pleadings to plead that the respondent was an employee of
    Canamould, not an independent contractor.

[10]

We
    disagree. In his Statement of Claim, the respondent said that he performed
    sculpting and consulting services. In their Statement of Defence, the
    appellants accepted this description. Throughout the relationship, the
    respondent sent invoices to Canamould and remitted GST. We agree with the
    motion judge that the appellants proposed pleading on this issue does not meet
    the test for withdrawal of an admission.

[11]

The
    appellants contend that the motion judge erred by not permitting them to amend
    their pleadings to include a counterclaim for damages.

[12]

We
    agree with the motion judge that this claim was statute barred by the relevant
    limitation period and that, in any event, set-off is the appropriate way to
    deal with potential successful claims by both sides.

[13]

Finally,
    the appellants submit that the motion judge erred by not permitting them to
    plead that the respondent had assigned his copyright in his mould design to
    them.

[14]

We
    disagree. The bald pleading on this issue, with no description of any
    documentation or conduct giving rise to the claim, and on the eve of trial, was
    properly rejected by the motion judge.

[15]

The
    appeal is dismissed. The respondent is entitled to his costs fixed at the
    agreed upon amount of $14,000, inclusive of disbursements and applicable taxes.

John Laskin J.A.

J.C. MacPherson J.A.

E.E. Gillese
    J.A.


