Lamond v. Smith, 2004 CarswellOnt 3176
2004 CarswellOnt 3176
Ontario Superior Court of Justice
Lamond v. Smith
2004 CarswellOnt 3176,  O.J. No. 3224,  O.T.C. 681, 132 A.C.W.S. (3d) 774, 72 O.R. (3d) 119
THOMAS LAMOND and C.T. LOGISTICS LTD. (Plaintiffs / Moving Parties) v. RAY SMITH and 1198827 ONTARIO INC. (Defendants / Responding Parties)
J.W. Quinn J.
Heard: July 22, 2004
Judgment: July 26, 2004
Docket: St. Catharines 46109/04
Counsel: D.C. DeLorenzo for Plaintiffs / Moving Parties
Ray Smith for himself, 1198827 Ontarion Inc., Defendants / Responding Parties
Subject: Civil Practice and Procedure
Related Abridgment Classifications
For all relevant Canadian Abridgment Classifications refer to highest level of case via History.
Civil practice and procedure --- Judgments and orders — Setting aside — Grounds for setting aside — New evidence
J.W. Quinn J.:
1 Is the court entitled, on its own motion, to set aside an order that was obtained by means of a materially incomplete affidavit? Yes.
Background and Discussion
2 On July 6, 2004, the plaintiffs caused to be issued a notice of action. It alleged that the defendants breached a contract to sell to the plaintiffs the assets of an entity known as R & L Transportation. Damages and assorted declaratory and injunctive relief are claimed.
3 The plaintiffs brought a motion returnable on July 8th. They sought an order declaring that the corporate plaintiff was “the registered holder of the trade name ‘R & L Transportation’ “ and, further, an order requiring the defendants to account for all mail received in the name of R & L Transportation and to turn over such mail, including cheques, to the plaintiffs.
4 The motion was supported by an affidavit of the plaintiff, Thomas Lamond (”Lamond”). In his affidavit, Lamond stated that the defendant, Ray Smith (”Smith”), was the president of the corporate defendant, a company that was in the trucking and haulage business (”the business”) under the trade name R & L Transportation. Lamond deposed that he had been “trying to negotiate” with Smith to buy the business and he set out some of the details in that regard. Lamond contended that an agreement was reached and that he began making payments to Smith.
5 In his affidavit, Lamond stated that, on behalf of the corporate plaintiff, he registered the trade name R & L Transportation on August 26, 2003 with the Ministry of Consumer and Business Services (”Ministry”).
6 Paragraph 12 of the affidavit reads, in part, as follows:
12. On or about June 21, 2004, without explanation, [Smith] removed the assets I had purchased that were sitting at the storage yard . . .
7 The affidavit further said that, recently, Lamont noticed he was not receiving his “regular mail deliveries” and learned from Canada Post that Smith had filed a change of address for R & L Transportation by which the mail for that entity was redirected to his (Smith’s) home. Faced with conflicting demands for the mail, Canada Post was holding it pending a court order.
8 The July 8th motion came before me. Smith was in attendance and requested an adjournment to retain counsel. The request was granted but I made an order directing that Canada Post turn over all mail in its possession to counsel for the plaintiffs and that it deliver all further mail for R & L Transportation to counsel (who, in turn, was to provide copies to Smith).
9 On July 22nd, the parties were again in front of me in motions court. Smith, still self-represented, had filed a responding motion record regarding the July 8th motion of the plaintiffs. As well, in a separate motion, he asked for leave to represent the corporate defendant. I granted leave. When attention turned to the plaintiffs’ motion from July 8th, counsel asked for it to be adjourned. However, I indicated that, based upon the affidavit in the responding motion record filed by Smith, I felt I had been misled on July 8th in two respects. Firstly, appended as an exhibit to Smith’s affidavit was a copy of a hand-delivered letter from him to Lamond dated June 23, 2004. The letter provided full particulars as to why Smith had seized the assets of R & L Transportation. Some of the particulars are compelling. Therefore, when, in paragraph 12 of his affidavit, Lamond swore that Smith removed the assets of R & L Transportation “without explanation,” this was untrue. Counsel argued that the intended wording of the affidavit was “without warning.” Even if this were so, paragraph 12 is materially incomplete. It should have referred to Smith’s letter of June 23rd. Without the letter, I was left holding the impression that Smith was clearly in the wrong when he seized the assets of R & L Transportation; with the letter, the matter is not nearly so clear.
10 Secondly, in his affidavit Smith deposed that R & L Transportation is a sole proprietorship which was registered with the Ministry in his name in 1996. (”R & L” come from the first letters of his name and that of his wife.) Upon reading the Lamond affidavit, he learned for the first time that R & L Transportation was registered to the plaintiffs. He obtained Ministry documentation (appended to his affidavit as exhibits) indicating that his registration had been cancelled by the plaintiffs August 14, 2003 - 12 days before the name of R & L Transportation was registered to the corporate plaintiff. Smith swears that all of this was done without his knowledge or consent. Lamond’s affidavit should have explained that the plaintiffs’ had cancelled Smith’s registration of R & L Transportation before the name was re-registered.
11 The result is that I would not have made the July 8th order had I been made aware of the two pieces of information that came to my attention on July 22nd, particularly the letter of June 23rd. Lamond’s affidavit was materially incomplete and misleading.
12 Accordingly, on the court’s own motion, the order of July 8, 2004 is set aside. Canada Post shall forward or deliver to Smith all mail it receives addressed to “R & L Transportation” or any similar name. Smith shall provide to counsel copies of all such mail. Smith is cautioned that if it turns out even one piece of mail is not copied to counsel, this may lead to a finding of contempt of court - for which a jail sentence would not be out of the question as punishment.
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