Western Delta Lands Inc. v. Zurich Indemnity Company of Canada

Western Delta Lands Inc. v. Zurich Indemnity Company of Canada Collection Decisions of the Court of Appeal Date 1999-08-16 Docket numbers C31578 Judges Goudge, Stephen Thomas; Borins, Stephen; MacPherson, James C. Subject Civil Decision Content DATE: 19990816 DOCKET: C31578 COURT OF APPEAL FOR ONTARIO GOUDGE, BORINS and MacPHERSON JJ.A. BETWEEN: ) ) WESTERN DELTA LANDS INC./ ) Maurice J. Neirinck, IMMEUBLES WESTERN DELTA INC., ) for the appellant S. B. McLAUGHLIN ASSOCIATES ) S. B. McLaughlin Associates Inc. INC. and ENTERAC PROPERTY ) CORPORATION ) ) D. Robb English and Plaintiffs ) Wendy H. Greenspoon, (Appellants) ) for the respondent ) - and - ) ) ZURICH INDEMNITY COMPANY ) OF CANADA ) ) Defendant ) (Respondent) ) ) Heard: August 9, 1999 ) On appeal from the decision of Mr. Justice John D. Ground dated January 20, 1999 BY THE COURT: [1] The appellant now confines this appeal to a challenge to the order of Ground J. dismissing the claims of S. B. McLaughlin Associates Inc. ("S.B.M.A.") for damages arising out of the alleged breaches by Zurich. [2] The motion seeking this relief was based on the assertion that this plaintiff lacked legal capacity. The moving party referenced Rule 21.01(3)(b) in its notice of motion. [3] Ground J. disposed of this motion by concluding that "S.B.M.A. does not have the legal capacity to prosecute the claim for damages". [4] In our view, Ground J. erred in this conclusion. The notion of legal capacity referred to in Rule 21.01(3)(b) is a relatively narrow and technical one relating to the plaintiff's legal ability to commence the litigation. Here, there is no doubt that S.B.M.A. was at all times a duly incorporated company with the capacity to commence the action. [5] The reasoning used by Ground J. to reach his conclusion related to the merits of the plaintiff's claim. While this reasoning could have been relevant to a Rule 20 motion, or perhaps a Rule 21.01(1)(a) motion, this motion was neither of those. The appellant was put on notice of a motion challenging its legal capacity and the motions judge disposed of the motion on that basis. [6] While there was reference in the applicant's material to Rule 21.01(1)(a), it was in the context of the challenge to S.B.M.A.'s legal capacity. Indeed, a motion under Rule 21.01(1)(a) could not be properly brought until the close of pleadings, which had not yet occurred here. See Montreal Trust Co. of Canada v. Toronto-Dominion Bank et al. (1992), 40 C.P.C. (3d) 389 at 395-6. [7] Hence, the appeal must be allowed with costs and the motion to strike out the statement of claim of S.B.M.A. for want of legal capacity must be dismissed with costs. This is without prejudice to the respondent's right to subsequently bring such motion or motions as it sees fit and the Rules of Court permit. RELEASED: August 16, 1999