General Damages under Rule 14.05 (Civil)

R.R.O. 1990, Reg. 194: RULES OF CIVIL PROCEDURE

14.05 (1) The originating process for the commencement of an application is a notice of application (Form 14E, 14E.1, 68A or 73A) or an application for a certificate of appointment of an estate trustee (Form 74.4, 74.5, 74.14, 74.15, 74.21, 74.24, 74.27 or 74.30). R.R.O. 1990, Reg. 194, r. 14.05 (1); O. Reg. 484/94, s. 5; O. Reg. 43/14, s. 5 (1).

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(2) A proceeding may be commenced by an application to the Superior Court of Justice or to a judge of that court, if a statute so authorizes. R.R.O. 1990, Reg. 194, r. 14.05 (2); O. Reg. 292/99, s. 1 (2).

Application under Rules

(3) A proceeding may be brought by application where these rules authorize the commencement of a proceeding by application or where the relief claimed is,

(a) the opinion, advice or direction of the court on a question affecting the rights of a person in respect of the administration of the estate of a deceased person or the execution of a trust;

(b) an order directing executors, administrators or trustees to do or abstain from doing any particular act in respect of an estate or trust for which they are responsible;

(c) the removal or replacement of one or more executors, administrators or trustees, or the fixing of their compensation;

(d) the determination of rights that depend on the interpretation of a deed, will, contract or other instrument, or on the interpretation of a statute, order in council, regulation or municipal by-law or resolution;

(e) the declaration of an interest in or charge on land, including the nature and extent of the interest or charge or the boundaries of the land, or the settling of the priority of interests or charges;

(f) the approval of an arrangement or compromise or the approval of a purchase, sale, mortgage, lease or variation of trust;

(g) an injunction, mandatory order or declaration or the appointment of a receiver or other consequential relief when ancillary to relief claimed in a proceeding properly commenced by a notice of application;

(g.1) for a remedy under the Canadian Charter of Rights and Freedoms; or

(h) in respect of any matter where it is unlikely that there will be any material facts in dispute requiring a trial. R.R.O. 1990, Reg. 194, r. 14.05 (3); O. Reg. 396/91, s. 3; O. Reg. 537/18, s. 2.

Commercial Tenancies Act, R.S.O. 1990, c. L.7

68 The judge has jurisdiction and authority to determine any question arising upon the application that the Superior Court of Justice has jurisdiction to determine in an action brought in that court. R.S.O. 1990, c. L.7, s. 68; 2006, c. 19, Sched. C, s. 1 (1).

Tri Huynh et al v. Alice Wan Lau, 2011 ONSC 3417 (CanLII)

[15] The parties rely on Rule 14.05(3)(c) and (h) which provide as follows:

14.05(3) A proceeding may be brought by application where these rules authorize the commencement of a proceeding by application or where the relief claimed is,

(c) the removal or replacement of one or more executors, administrators or trustees, or the fixing of their compensation;

(h) in respect of any matter where it is unlikely that there will be any material facts in dispute.

[16] It is clear that R.14.05(3) permits this Court to make the declaration sought. It is equally clear, based on R.14.05(3) and the caselaw interpreting this rule, that this Court does not have jurisdiction to make an award for general damages or to make an order where the materials facts are in dispute.

[17] I am guided by the decision of the Divisional Court in Hefford v. Charpentier, 2009 CanLII 21761 dated March 13, 2009. In that case, the Applicant sought a declaration of trespass, and general and punitive damages with respect to a property dispute. The Court held that:

“A claim for damages, particularly based on disputed facts, does not fall within rule 14.05(3) and is therefore, not properly bought by way of Application…

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Accordingly, the hearing of this case as an Application under Rule 14.05(3)(e) flies in the face of well established case law that holds that Rule 14.05(3) is not available for the resolution of general and punitive damage claims.”

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There must be a trial of an issue as to the Respondent’s entitlement to general and/or punitive damages”.

Hefford v. Charpentier, 2009 CanLII 21761 (ON SCDC)

[3] The appellant submits that the Application process envisioned by Rule 14.05(3) does not permit the adjudication of claims in trespass where material facts are in dispute, nor does it contemplate a dispute where general, non-liquidated damages and punitive damages are sought.

[4] The respondent submits that it was conceded before McIsaac J. that a trespass had been committed and therefore the material facts were not in dispute.

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[24] Numerous authorities have been cited by counsel for the appellant, for the proposition that general and punitive damages are not the types of relief available under Rule 14.05. For instance, in Ontario (Minister of Natural Resources v. Holdcroft), [2004] O.J. No 697, the court held that it was “not permitted to claim damages in an application under the Rules”. In Dovale v. Metropolitan Toronto Housing Authority, 2001 CanLII 28024 (ON SC), [2001] O.J. No. 473, Molloy J. struck out paragraphs of the Notice of Application dealing with damages and directed that these claims should be pursued by way of action. She stated at para. 12;

A claim for damages, particularly based on disputed facts, does not fall within rule 14.05(3) and is therefore not properly brought by way of application.

[25] Similar language may be found in Rintoul v. Mississippi Mills (Town), [2005] O.J. No. 4844. and in Boreal Insurance Inc. v. Lafarge Canada Inc., 2004 CanLII 66335 (ON SC), [2004] O.J. No. 1571.

[26] Accordingly, the hearing of this case as an Application under Rule 14.05(3)(e) flies in the face of well established case law that holds that Rule 14.05(3) is not available for the resolution of general and punitive damage claims.

[27] In the circumstances, the order of McIsaac J. must be set aside with the exception of the declaration "that John Hefford has trespassed on the Applicant's property". There must be a trial of an issue as to the respondent's entitlement to general and/or punitive damages. The parties are invited to consider whether this issue should be tried in Small Claims Court.

Massalin v Garcia, 2016 ONSC 5945 (CanLII)

[3] Rule 14.05(3)(a) - (h) states that proceedings may be brought by application when certain types of relief are claimed. Given the nature of this dispute, only (g) and (h) are applicable.

[4] The applicants state that they are requesting a mandatory order, which falls within (h) being specific performance. If the respondents took issue with the manner of proceeding, they should have raised it earlier. Cross-examinations have been held. The parties are ready to argue the application. The respondents should have brought a motion if their position was that this application should be converted to an action.

[5] The respondents state that many material facts are in dispute. Counsel wrote to counsel for the applicant three times asking what authority was being relied upon for the applicants’ entitlement to bring these proceedings by way of application. The last letter from the respondents was dated June 8, 2016. The respondents also state that it is not their responsibility to see that the applicants used the proper originating process.

[6] Rule 1.04 states that the Rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. Ordinarily, when certain facts are in dispute, an action is the proper way to proceed. Here, cross-examinations have been conducted. The respondents’ waiting until the application was immediately before the court and then raising the issue of whether this matter should proceed by way of action is inappropriate. I find that converting this application to an action at this stage would not accomplish the mandate set out in Rule 1.04.

Forsyth v. Li, 2009 CanLII 2911 (ON SC)

[45] Forsyth submits that Li should have brought an application under Rule 14.05(3)(d) which specifically allows the Court to interpret a municipal by-law rather than proceeding with a summary motion under Rule 20. Li responds that since Forsyth issued a statement of claim against Li, it would be a waste of time and money to commence a separate legal proceeding by way of application, if the test to be applied under Rule 20 is met.

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[57] While an application may be commenced under Rule 14.05 (3)(d) for “the determination of rights that depend on the interpretation of a … municipal by-law …”, in this case the legal proceeding was commenced by Forsyth against Li by issuing a statement of claim. The fact that a remedy may be available under a separate rule providing a different manner of commencing a legal proceeding, namely by way of application, does not prevent a motion being brought under Rule 20, provided the motion meets the test to be applied under a Rule 20.

[58] In addition, requiring a separate proceeding under Rule 14 would not be consistent with the general principles set out in Rule 1.04 and would incur unnecessary legal expense and delay without any benefit to any party. I am satisfied that the interpretation of a by-law which is a question of law, may be conducted on a Rule 20 motion provided there are no material facts in dispute, and Forsyth has not identified any disputed material facts.

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