



COURT OF APPEAL FOR ONTARIO

CITATION: Baradaran v. Tarion Warranty
    Corporation, 2014 ONCA 123

DATE: 20140218

DOCKET: C56221

Gillese, Rouleau and Tulloch JJ.A.

BETWEEN

Manoucher Baradaran

Plaintiff (Appellant)

and

Tarion
    Warranty Corporation, Roger Boyd, Abbassgholi Nasseri,

Master Custome Homes Inc.

Defendants (Respondents)

Manoucher Baradaran, acting in person

Sophie Vlahakis, for Tarion Warranty Corporation and
    Roger Boyd

Heard: February 12, 2014

On appeal from the order of Justice Robert Goldstein of
    the Superior Court of Justice, dated October 3, 2012.

ENDORSEMENT

[1]

The appellant appeals from the motion judges order striking his
    statement of claim as against one of the defendants, Roger Boyd. The motion
    judge found that the claim against Mr. Boyd disclosed no reasonable cause of
    action because, at all material times, Mr. Boyd would have been acting as an
    employee of Tarion Warranty Corporation (Tarion) and not in his personal
    capacity.

[2]

At the root of the dispute is the appellants dissatisfaction with the
    way that Tarion responded to claims he made for alleged defects in the home he
    purchased. The claims were made pursuant to a statutory compensation scheme
    known as the
Ontario New Home Warranties Plan Act
, R.S.O. 1990 c. O.31.
    Most of the appellants claims were rejected and his appeal to the Licence
    Appeal Tribunal was largely unsuccessful. Having exhausted his remedies under
    the statutory scheme, the appellant commenced the present action in Superior
    Court against Tarion, Mr. Boyd, Master Custom Homes Inc. and Abbassgholi
    Nasseri. In his statement of claim the appellant made essentially the same
    complaints about the home that were made to Tarion and in his appeal to the Tribunal.
    He has also alleged that he and his family have suffered stress and that one of
    his family members injured her ankle on a broken slot stone located at the
    front of the home.

[3]

The respondents motion to strike the appellants claim pursuant to Rule
    21 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194 (
Rules
)
    came before Low J. in scheduling court. The appellants first complaint is that
    Low J. ordered that the respondents Rule 21 motion proceed as a Rule 20 motion
    and that the motion judge erred by allowing the respondents to proceed on the
    basis that it was a Rule 21 motion. We disagree. From the transcript, it is
    clear that the motion was brought pursuant to Rule 21. Justice Low heard the
    matter in scheduling court and simply scheduled the motion for hearing on
    October 3. Justice Lows reference to it being a summary judgment motion was
    simply an error. It did not, as suggested by the appellant, change the nature
    of the motion. As a result, the motion judge did not err in dealing with the
    motion as a Rule 21 motion.

[4]

The appellant also alleges that various errors were committed by the
    motion judge, including allegations that:

1.

The motion judge
    erred in relying on a misleading reference to case law made by the respondents;

2.

The motion judge
    had no jurisdiction to make the order dismissing the claim and did not give the
    appellant a fair hearing;

3.

The motion judge
    ought to have waited until he received transcripts of a witness examination
    before deciding the motion; and

4.

The motion judge
    made various ill-defined factual and legal errors in reaching his decision.

[5]

The appellant also appeals the order that he pay costs fixed in the
    amount of $3,000 plus HST and disbursements.

[6]

We would not give effect to these grounds of appeal. The motion judge
    gave the appellant a full and fair hearing and the order made was clearly
    within the motion judges jurisdiction. Further, on a Rule 21 motion no
    evidence is admissible without leave of the motion judge. The decision is based
    on the pleadings and the test is whether it is plain and obvious that the
    claim cannot succeed. There was no need for the motion judge to await
    production of transcripts from various cross-examinations prior to making his
    ruling.

[7]

From our review of the statement of claim, there is simply no evidence
    that Mr. Boyd was at any time acting outside the scope of his employment such
    that he might become personally liable. As explained by this court in
Piedra
    v. Copper Mesa Mining Corporation
, 2011 ONCA 191, at para. 75, claims against
    individuals in their personal capacities must withstand a high degree of
    scrutiny.
Piedra
stressed, in the same paragraph, that courts must be
    scrupulous in weeding out claims that are improperly pleaded or where the
    evidence does not justify an allegation of a personal tort.

[8]

Although the statement of claim contains a vague reference to the effect
    that there was some financial issue between Mr. Boyd and Mr. Nasseri, this
    does not amount to a claim in fraud or that Mr. Boyd was involved in some improper
    conduct that would potentially attract personal liability.

[9]

We also agree with the motion judges conclusion that leave to amend the
    pleading should not be granted. Nothing in what the appellant proposed by way
    of amendments would further the allegations made against Mr. Boyd or meet the
    test for a proper pleading in fraud, misrepresentation, breach of trust, malice
    or intent as provided in r. 25.06(8) of the
Rules
. Such claims must
    contain full particulars.

[10]

Further,
    as we noted earlier, the claim against Mr. Boyd is simply an attempt by the
    appellant to re-litigate the issues fully canvassed in the proceedings brought
    before the Licence Appeal Tribunal. We agree with the motion judges
    observation that the motion to strike could also have succeeded on the grounds
    that the claim against Mr. Boyd is frivolous and vexatious.

[11]

Finally,
    we see no basis to interfere with the motion judges order as to costs. Cost
    orders are entitled to deference in this court and the motion judges order is
    reasonable and fully justified in the circumstances of this case.

[12]

For
    these reasons, the appeal is dismissed. The respondents are entitled to their
    costs fixed in the amount of $1,300 inclusive of HST and disbursements.

E.E.
    Gillese J.A.

Paul Rouleau
    J.A.

M.H.
    Tulloch J.A.


