



COURT OF APPEAL FOR ONTARIO

CITATION: Brauti Thorning Zibarras LLP v. Nguyen, 2019 ONCA
    45

DATE: 20190124

DOCKET: C65582

Strathy C.J.O., Pepall and Fairburn JJ.A.

BETWEEN

Brauti
    Thorning Zibarras LLP

Plaintiff
(Respondent)

and

Trung Nguyen
and
    Ferreira Bettencourt LLP

Defendant
(
Appellant
)

Trung Nguyen, acting in person

Matthew Gottlieb and James Renihan, for the respondent

Heard: January 23, 2019

On appeal from the order of Justice Heather McArthur of
    the Superior Court of Justice, dated May 25, 2018.

APPEAL BOOK ENDORSEMENT

[1]

This proceeding, commenced almost two and a half years ago, has been
    stalled as a result of a dispute over pleadings.

[2]

The appellant appeals against an order of the Superior Court allowing an
    appeal from the Master and striking out certain allegations in his statement of
    defence and counterclaim, pursuant to r. 25(11)(b) as irrelevant and,
    therefore, scandalous and vexatious.

[3]

We do not find it necessary to address the appellants submission that
    the motion judge erred in determining the relevance of the impugned paragraphs
    based on the amended statement of claim.

[4]

While it is not clear that the appellant sought leave to amend in the
    court below, the respondent does not object to leave being granted.

[5]

In these circumstances, leave should be granted without prejudice to the
    ability of the appellant to plead the allegations of misconduct that were
    struck.

[6]

The pleading sought, which should not be a pleading of evidence, is
    relevant to at least three issues. First, an issue not previously argued, as a
    defence to the respondents claim for aggravated, exemplary and punitive
    damages; second, as a potential defence to other equitable claims; and third,
    if the agreement was ever amended as the plaintiff alleges, that the amendment
    was made in May 2014 or thereafter, and was the result of duress, undue
    influence or unconscionability. We would therefore grant leave to amend.

[7]

We note, in passing, that in support of his position, the appellant
    relies on the sworn evidence of Mr. Zibarras, one of the partners in the
    respondent, including emails sent by Mr. Zibarras.

[8]

As the Master observed, this case cries out for proportionality. It is
    not complicated and we suggest that case management be considered in order to
    ensure the just, most expeditious and least expensive determination of this
    proceeding on its merits.

[9]

In the circumstances of this particular case, the costs award below
    should be set aside, and there shall be no costs throughout.


