The Plaintiff, Gerard Tobin, filed a Statement of Claim in 2012 against the Defendants, alleging breach of contract and/or negligence, seeking damages for economic loss due to professional negligence.
The Defendants applied under Rule 38 of the Rules of the Supreme Court to determine if the Plaintiff's claim for damages was improperly directed against them.
Defendants' Argument:
The Defendants argued that affidavits submitted by the Plaintiff in a 2018 application indicated that any losses were incurred by the Plaintiff's company, not by him personally. They sought dismissal of the action based on this claim.
Plaintiff's Argument:
The Plaintiff contended that the losses included both personal losses and those of his company, and that there was no admission that all losses were corporate. He cited a 2018 court decision as support for his position.
Issues:
Whether Rule 38 was appropriate to resolve the issue of damages before trial.
Whether the Plaintiff admitted that the losses claimed were corporate, not personal.
Whether the case should proceed to trial.
Analysis:
The court found that Rule 38 was suitable given the sufficient evidentiary record, mainly based on the Plaintiff's affidavits. However, it determined that the Plaintiff did not admit to incurring only corporate losses. The court emphasized that previous judicial consideration supported the Plaintiff’s claim of personal losses.
Outcome:
Defendants' application: Dismissed. The Plaintiff's damages claim was appropriately directed against the Defendants. A trial was deemed necessary to resolve the remaining issues.
Costs awarded to the Plaintiff. No amount specified.
