General Damages under Rule 14.05 (Civil)

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…

…

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.”

…

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