Penwell v. Harwood

Penwell v. Harwood

The plaintiffs' Statement of Claim and particulars, including examples of specific investments and the pleaded overall asset mix and objectives, were sufficiently particular to meet the purposes of pleadings under CPR 38; the defendants failed to satisfy the persuasive onus that they could not meaningfully plead without the further particulars sought and many of their requests were for evidence or descriptions of evidence rather than necessary particulars, therefore the defendants' CPR 38.08(6) motion for further and better particulars was dismissed and costs awarded to the plaintiffs.

Citation
2011 NSSC 309
Parties
Plaintiff/respondent: Dr. Donald Penwell; Plaintiff/respondent: Susan Penwell; Plaintiff/respondent: Penwell Holdings Incorporated; Defendant/applicant: Lee Harwood; Defendant/applicant: Scotia Capital Inc. carrying on business as ScotiaMcLeod
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
29 July 2011
Procedural Posture
Civil Action for Professional Negligence, Breach of Fiduciary Duty and Misrepresentation in Relation to Investment Advice / Interlocutory Motion Re: Demand for Further and Better Particulars (cpr 38.08(6)); Pre‑trial Pleadings
Outcome
Defendants' motion for further and better particulars under CPR 38.08(6) dismissed
Legal Topics
Particulars, Demand for Particulars, Pleadings, Costs
Source Language
English
Civil Procedure Securities/investment Law Professional Negligence Fiduciary Duty Particulars Demand for Particulars Pleadings Costs

Case Brief

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Parties

Dr. Donald Penwell

Plaintiff/respondent

Susan Penwell

Plaintiff/respondent

Penwell Holdings Incorporated

Plaintiff/respondent

Lee Harwood

Defendant/applicant

Scotia Capital Inc. carrying on business as ScotiaMcLeod

Defendant/applicant

Procedural Posture

Civil Action for Professional Negligence, Breach of Fiduciary Duty and Misrepresentation in Relation to Investment Advice / Interlocutory Motion Re: Demand for Further and Better Particulars (cpr 38.08(6)); Pre‑trial Pleadings

Legal Issues

  1. 1 Whether the plaintiffs' particulars are sufficiently particular to permit the defendants to plead a defence
  2. 2 Whether the defendants have discharged the onus to show they cannot meaningfully plead without further particulars
  3. 3 Whether the particulars sought by the defendants are properly pleaded particulars or impermissible requests for evidence

Ratio Decidendi

The plaintiffs' Statement of Claim and particulars, including examples of specific investments and the pleaded overall asset mix and objectives, were sufficiently particular to meet the purposes of pleadings under CPR 38; the defendants failed to satisfy the persuasive onus that they could not meaningfully plead without the further particulars sought and many of their requests were for evidence or descriptions of evidence rather than necessary particulars, therefore the defendants' CPR 38.08(6) motion for further and better particulars was dismissed and costs awarded to the plaintiffs.

Court Disposition

Defendants' motion for further and better particulars under CPR 38.08(6) dismissed

Orders

  • Motion dismissed
  • Costs awarded to the plaintiffs in the amount of $800 payable forthwith plus recoverable (reasonable and necessary) disbursements in relation to this motion