Abas Auto Inc v Superior General Date:, 2015 MBCA 104

Citation: Abas Auto Inc v Superior General Date: 20151105 Partner Inc, 2015 MBCA 104 Docket: AI15-30-08421 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Alan D. MacInnes Mr. Justice Marc M. Monnin Madam Justice Janice L. leMaistre BETWEEN: ABAS AUTO INC. ) S. M. Scarfone ) for the Appellant (Plaintiff) Respondent ) ) J. E.

Roberts- and - ) for the Respondent ) SUPERIOR GENERAL PARTNER INC. ) Appeal heard and ) Decision pronounced: (Defendant) Appellant ) November 5, 2015 MONNIN JA (for the Court): [1] Superior General Partner Inc., the defendant, appeals from an endorsement order made by a Court of Queen’s Benchjudge on appeal confirming a decision of the Master with respect to the expungement of portions of an affidavit filed by Abas Auto Inc.,the plaintiff, in support of a motion under Manitoba, Court of Queen’s Bench Rules, Man Reg 553/88, r 25.11(d).

By that motion, thedefendant sought to strike the plaintiff’s claim for failing to disclose a reasonable cause of action. [2] We are all of the view that the substantive motion to strike is not an appropriate motion to have been brought in thecircumstances of this case and, even if successful on this appeal, the defendant would not be able to meet the requirements of r 25.11(d). As a result, after hearing from the defendant, we dismissed the appeal without calling upon plaintiff’s counsel. We directed that themotion to strike not proceed, but that the parties move by

summary judgment or by trial of an issue to determine the limitation issue,failing which, the matter should proceed to trial. These are our reasons for doing so. [3] The plaintiff issued a statement of claim for damages suffered to the canopy of its service station. The defendant, theoperator of the motor vehicle which caused the damage, filed a statement of defence raising a limitation issue, but alternatively admittedto its negligence while disputing the amount of damages being claimed. The plaintiff filed a reply denying that its claim was barred by alimitation period. [4] Some two years later, the defendant moved under r 25.11(

d) to strike the statement of claim on the grounds that it didnot disclose a reasonable cause of action for failure to allege that the damage for which it was seeking compensation was damage to realproperty. In response, the plaintiff filed an affidavit which included experts’ reports with respect to the nature of the damage. Thedefendant then moved before the Master to expunge the affidavit and documents filed by the plaintiff, on the grounds that no evidencewas permitted on a motion to strike under r 25.11(d). [5] The motion to expunge was ordered to be heard in advance of the substantive motion.

As an aside, we are of the viewthat there was no need to bifurcate those motions. The issue of what was relevant for the Master to consider could have been dealt withat the same time as the hearing of the substantive motion as, save for exceptional circumstances, it should be.

See Lexogest Inc et al vManitoba (Attorney General) et al (1993), (MB CA), 85 ManR (2d) 8. [6] The motion to expunge was heard by the Master who concluded that, while the general rule precluded the use ofaffidavit material on a motion to strike under r 25.11(d), there may be exceptions such as evidence relating to the timing of the motionand whether it was still available given that pleadings had been concluded.

However, she agreed that the portion of the affidavit thatreferred to the merits of the claim should be expunged as that was not relevant to the motion. [7] On appeal to the Court of Queen’s Bench, the motion judge dismissed the appeal on the ground that the

circumstances surrounding the filing of the motion permitted the Court to put the timing of the motion into context and was an exceptionto the general rule concerning the inability to refer to extrinsic evidence on a motion to strike under r 25.11(d). The motion judge alsonoted that the case lent itself to a

summary judgment motion rather than a motion to strike given that the issue was whether the canopywas a chattel or a real property. He noted that: Decisions of this court should be directed towards deciding arguable cases on their merits, either by

summary judgment or by trial or bytrial of an issue. We agree. [8] In our view, this motion is ill-conceived. Even if successful on striking the affidavit in its entirety, the defendantwould be unable to succeed on the substantive motion given that the statement of claim, on its face, raises a valid cause of action. Whether or not it succumbs to a limitation defence based upon an argument that the canopy was a chattel as opposed to real property canonly be determined once evidence is adduced to deal with the issue. This should be done as part of a

summary judgment application,trial of an issue, or at a trial proper. [9] We agree with the comments of our colleague, Steel JA, in Basaraba v Manitoba Court of Queen’s Bench, 2006MBCA 27, 201 ManR (2d) 302, where she stated (at para 26): The law on motions to strike is well settled. All of the facts set forth in the statement of claim are assumed to be true, and the court doesnot look outside the four corners of the pleading at any other evidence. See Mathias Colomb Indian Band et al. v. SaskatchewanPower Corp. et al. (1994), (MB CA), 92 Man.R. (2d) 105; 61 W.A.C. 105 (C.A.).

While that is an accurate comment on the general application of the r 25.11(d), there may be situations which call for the admission ofaffidavit evidence dealing with equitable issues such as, in this case, the delay in bringing the motion. We leave consideration of thescope of what those situations may be for another day, although we are generally in agreement with the comments of the Master thatsuch evidence will be admitted only in rare and exceptional cases. [10] As also stated in Basaraba, it is only where cases are “‘plain and obvious’ or ‘beyond doubt’” (at para 26) that a claimis to be struck.

That is not the situation here where the statement of claim discloses a reasonable cause of action. It is only when alimitation defence is raised, outside of the four corners of the statement of claim, that an issue arises. [11] We also confirm previous jurisprudence of this Court that determination of a limitation defence should be on a motionfor

summary judgment or upon trial of an issue, but not on a motion to strike under r 25.11(

d) unless the pleadings themselves, on theirface, contain an admission or facts sufficient to conclude that the cause of action arose after the expiry of the limitation period. [12] Given the inevitability of the dismissal of the plaintiff’s motion, in the interests of justice, and in an effort to advancethe proceedings and preserve judicial resources, we direct that the motion not proceed and that the defendant, if it wishes to have thismatter determined before trial, do so on a

summary judgment motion or trial of an issue. See Hryniak v Mauldin, 2014 SCC 7, [2014] 1SCR 87. Conclusion [13] Therefore, the appeal is dismissed. The parties are directed to forego the hearing of the substantive motion and toproceed either by

summary judgment or by trial of an issue to a determination of the limitation defence, failing which the parties shouldproceed to trial on any outstanding issue. [14] Costs of this appeal and the motions below are to be in the cause. JA JA JA