motion material

Model Motion Material

CIVIL LITIGATION 48TH BAC: ACADEMIC PHASE 2005

LAW SOCIETY OF UPPER CANADA:

NOT TO BE USED OR REPRODUCED WITHOUT PERMISSION 1

Court File No.: Yr 0-CV-3257CM1

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

RAYMOND FLOYD

Plaintiff

and

WHITE HOUSE SIDING COMPANY LTD.

Defendant

AND BETWEEN:


Plaintiff by counterclaim

and

RAYMOND FLOYD and R.F. ALUMINUM INC.

Defendants to the counterclaim

NOTICE OF MOTION

(White Houses motion to amend amended statement of defence

and counterclaim, and for interim recovery of personal property - Rule 44)

THE DEFENDANT (PLAINTIFF BY COUNTERCLAIM) (White House) will

make a motion to the court on September 15, Yr 0, at 10:00 a.m. or as soon after that time as the motion

can be heard, at 393 University Avenue, Toronto.




PROPOSED METHOD OF HEARING:

in writing under subrule 37.12.1 because it is (insert one of on consent, unopposed or made

without notice);

in writing as an opposed motion under subrule 37.12.1(4);

orally;

THE MOTION IS FOR

(i) an order for leave to amend the amended statement of defence and counterclaim

of White House further by adding thereto the paragraphs appearing in Schedule

A hereto;

(ii) an interim order that White House recover possession from the plaintiff

(Floyd) of an Armada Laptop computer bearing serial number 12345ABCDE

(the Computer) that Floyd is unlawfully detaining; and

(iii) its costs of this motion.

X




THE GROUNDS FOR THE MOTION ARE:

1 Rules 44 and 26.01 of the Rules of Civil Procedure.

2 Section 104 of the Ontario Courts of Justice Act, R.S.O. 1990, Chap.C.43.

3 White House is the owner of the Computer, having purchased it in Yr-3. White House provided

the Computer to Floyd to use during his employment, on the understanding that it remained the

property of White House and that Floyd would return it to White House if and when he ceased

being an employee.

4 White House dismissed Floyd in April, Yr 0. White House thereafter repeatedly asked Floyd to

return the Computer, but Floyd refused to do so, taking the position that the computer belonged

to him.

5 There are substantial grounds to support White Houses position that it is the owner of the

Computer and that Floyd is unlawfully detaining it.

6 The Computer contains confidential customer information that White House has good reason to

believe Floyd is using to contact White Houses clients for his competitive business, in breach of

Floyds obligations. Floyd has no legitimate reason to detain the Computer, and no pressing need

for it. The balance of convenience therefore favours White House, and it should be entitled to

interim possession of the Computer.




7 White House is prepared to post such security as may be ordered by the court.




THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing of the

motion:

the affidavit of Chuck Case, sworn on August 17, Yr 0;

Date: August 20, Yr 0

STAMPS AND ASSOCIATES

Barristers and Solicitors

5500 Hurontario Street

MISSISSAUGA, Ontario

L3T 1X1

LSUC No. 5321344

Tel: (905) 555-2100

Fax: (905) 555-2102

Solicitors for the defendant

TO: Sartor, Arnold & Scott

Barristers and Solicitors

400 West Island Road

Burlington, Ontario

L3R 7P0

Ruby J. Sartor

LSUC No. 32114989

telephone: (905) 555-9876

facsimile: (905) 550-2647

Solicitors for the plaintiff




SCHEDULE A PROPOSED FURTHER AMENDMENTS TO AMENDED

STATEMENT OF DEFENCE AND COUNTERCLAIM

12.

(d) a declaration that it is the owner and entitled to possession of an Armada Laptop

computer (the Computer) bearing serial number 12345ABCDE, and an order requiring

Floyd to return the computer to White House;

20. In Yr-3, White House purchased the Computer, along with a number of other similar

computers, for the use of its sale personnel, including Floyd. White House provided the Computer to

Floyd to use during his employment, on the understanding that it remained the property of White House

and that Floyd would return it to White House if and when he ceased being an employee.

21. After Floyd was dismissed from his employment, White House requested that Floyd

return the Computer on several occasions, but on each occasion Floyd refused to do so.

22. Floyd is unlawfully detaining the Computer, which is the property of White House, and

White House is entitled to the return of the Computer and a declaration that White House is the lawful

owner.





ONTARIO


BETWEEN:

RAYMOND FLOYD

Plaintiff

and


Defendant

AND BETWEEN:



and



AFFIDAVIT OF CHUCK CASE

I, CHUCK CASE, of the City of Toronto, in the Province of Ontario, Vice-President,

Marketing of the defendant (White House), MAKE OATH AND SAY:

1. I am the Vice-President, Marketing of White House, and I am making this affidavit in

support of a motion brought by White House for an interim order for recovery of certain personal

property belonging to White House. I have personal knowledge of all facts stated in this affidavit, except

where I have been informed of such facts, in which case I have stated the source of such facts and I

hereby state that I believe such facts to be true.




2. In this motion, White House is seeking to recover possession of an Armada laptop

computer (the Computer), bearing serial number 12345ABCDE. White House owns the Computer,

which the defendant Raymond Floyd is unlawfully detaining and refuses to return to White House.

3. I joined White House in my current position in August, Yr-1.

4. After this dispute arose with Mr. Floyd, I called Gus Greene, White Houses former sales

director, to ask him about the laptop computers that White House had bought for its sales force. I had

heard from a couple of people that it had been Mr. Greenes idea to buy the computers in the first place.

Mr. Greene had left White House some years earlier, but he comes around the plant and offices every

once in a while. Mr. Greene told me as follows:

(a) Several years ago, Mr. Greene had the idea of White House buying and

providing to its salesmen portable computers on which they could keep customer

information for use when they were on the road visiting White Houses customers.

(b) Mr. Greene arranged for White House to purchase five Armada laptop computers

for the salesmen, and this purchase was made in January, Yr-3.

(c) Mr. Greene told all of the salesmen, including Mr. Floyd, that White House was

providing them with laptop computers, but that the computers belonged to White House,

and would have to be returned to White House if at any time in the future any of

salesmen left White Houses employ.

5. I have caused a search to be done of White Houses financial and purchasing records.

Attached hereto as Exhibit A is a copy of the invoice, dated January 7, Yr-3, from C.E. Computers Co.,

relating to White Houses purchase of the five laptop computers referred to above. The Computer that

was provided to Mr. Floyd is the fourth one from the top of the list, bearing serial no.12345ABCDE.

6. White House dismissed Mr. Floyd from his employment, with just cause, on April 16,

Yr 0. Soon after, Mr. Floyd started this lawsuit against White House for what he is claiming was

wrongful dismissal. White House has defended the lawsuit, and has counterclaimed against Mr. Floyd on




a number of bases. Most important, White House is counterclaiming because Mr. Floyd is operating a

business in competition with White House, directly contrary to a restriction in the employment contract

that he signed with White House, and in addition is breaching his fiduciary duty to White House by

soliciting White Houses customers.

7. After Mr. Floyd was dismissed from his employment, I contacted him and asked that he

immediately return the Computer, and any other property of White Houses that he still had in his

possession, to White House. Attached hereto as Exhibit B is a copy of my letter to Mr. Floyd, dated

May 22, Yr 0. Mr. Floyd did not reply to my letter.

8. I wrote again to Mr. Floyd on June 19, Yr 0 (copy of letter attached as Exhibit C),

again demanding that he return the Computer. This time Mr. Floyd replied, by letter dated June 28, Yr 0,

a copy of which I have attached hereto as Exhibit D. In Exhibit D, Mr. Floyd took the position,

which he had never taken before, that the Computer belonged to him.

9. In response to Mr. Floyds letter (Exhibit D), I telephoned Mr. Floyd on June 28, Yr 0

to ask him to return the Computer. Mr. Floyd repeated his position that the Computer belonged to him

and that he had no intention of returning it. Attached hereto and marked as Exhibit E is a copy of the

notes of my telephone conversation with Mr. Floyd.

10. I believe that the Computer contains confidential information relating to White Houses

customers. This is because the entire purpose for White House salesmen to have these computers in the

first place was to keep such information readily available for them to use when they were on the road.

Many of the salesmen talked about how they would update the customer lists and other customer

information on their computers monthly, when the updated lists became available on White Houses

computer system. Mr. Floyd was no different than the other salesmen in this regard. I often saw him

leaving the White House premises to visit customers carrying his computer or arriving back from a two-

or three-day business trip with his computer.




11. The customer information that I am referring to, and that was kept on the salesmens

computers, included (i) customer names, (ii) customer addresses, telephone and fax numbers, and e-mail

addresses, (iii) information as to each customers past orders, and (iv) pricing information (that is, the

particular price structure that White House offered to each customer). This is all highly confidential

proprietary information belonging to White House.

12. When White House discovered that Mr. Floyd had set up a competing business and had

been soliciting White Houses customers, we were very concerned that he had copied and kept this

information. This is one of the reasons why I sent the letters and made the telephone call to Floyd

(referred to in paragraphs 7 to 9 above).

13. I believe that Mr. Floyd is unlawfully detaining the Computer, that he is improperly

using confidential customer information belonging to White House, and that Mr. Floyd has no legitimate

claim to the Computer.

14. White House is prepared to post such security as may be ordered by the court, as a

condition of an order for the return of the Computer.

SWORN before me at the City of Toronto, in the

Province of Ontario, on August 17, Yr 0

Henry P. Stewart

Commissioner for Taking Affidavits

)

)

)

)

CHUCK CASE




EXHIBIT A TO CASES AFFIDAVIT

C.E. COMPUTER CO.

INVOICE

TO: White House Siding Company Ltd. DATE: January 7, Yr-3

441 Industrial park

Toronto, Ontario P.O #: 123

M6R 7P2

INVOICE: 700

CONTACT: Gus Greene

PHONE #: 416 - 555 - 6431 FAX: 416 - 555 - 6405

QTY.

ORDERED

ITEM SERIAL

NUMBER

UNIT

PRICE

TOTAL

PRICE

1 Armada Laptop Computer 16473BAFDS $4,304.35 $4,304.35

1 Armada Laptop Computer 16537BAFSD $4,304.35 $4,304.35

1 Armada Laptop Computer 63728BCDEF $4,304.35 $4,304.35

1 Armada Laptop Computer 12345ABCDE $4,304.35 $4,304.35

1 Armada Laptop Computer 63527BDGAA $4,304.35 $4,304.35

SUBTOTAL $21,521.75

This is Exhibit A referred to in the affidavit of

CHUCK CASE sworn before me, this 17th day

of August, Yr 0.

Henry P. Stewart


10% Discount -$2,152.18

Net Total $19,369.57

GST $1,355.87

PST $1,549.57

TOTAL $22,275.01




Chuck Case Vice President, Marketing Direct Phone: 416-555-6436 E-Mail: [email protected]

EXHIBIT B TO CASES AFFIDAVIT

May 22, Yr 0

Raymond Floyd

66 Maple Lane,

Toronto, Ontario

M7K 4K7

Re: Laptop Computer

Dear Raymond,

It is standard policy at White House that employees return all company property received during

their employment after they cease to be employed by White House. It has been over 1 month since your

termination with White House and you have not returned the laptop that you were loaned. Please return

our laptop at your earliest convenience.

I hope that everything has worked out for you in the end and you are successful in finding new

employment.

Yours truly,

Chuck Case

VP Marketing

This is Exhibit B referred to in the affidavit of CHUCK CASE sworn before me, this 17

th day of

August, Yr 0.

Henry P. Stewart Commissioner for Taking Affidavits




Chuck Case Vice President, Marketing

Direct Phone: 416-555-6436

E-Mail: [email protected]

EXHIBIT C TO CASES AFFIDAVIT

June 19, Yr 0

Raymond Floyd

66 Maple Lane,

Toronto, Ontario

M7K 4K7

Re: Laptop Computer

Dear Mr. Floyd,

This is now the second letter that I am writing to request the return of the laptop that is the

property of White House. You have not responded to my first letter dated May 22, Yr 0. Please return the

laptop immediately as it and the information it contains are the rightful property of White House. Please

be advised that if you do not return the laptop A.S.A.P., we will have to explore other avenues of

recourse.

Yours truly,

Chuck Case,

VP Marketing

This is Exhibit C referred to in the affidavit of CHUCK CASE sworn before me, this 17

th day of

August, Yr 0.

Henry P. Stewart Commissioner for Taking Affidavits




Raymond Floyd

66 Maple Lane,

Toronto, Ontario

M7K 4K7

EXHIBIT D TO CASES AFFIDAVIT

June 25, Yr 0

Mr. Chuck Case

VP, Marketing

White House Siding Company Ltd.

441 Industrial Park

Toronto, Ontario

M6R 7P2

Re: Laptop Computer

Chuck,

I was unaware that even you could stoop to such a level. I was promised that the laptop was to be

mine in full ownership if I continued working at White House two years from the date which I received it

as a Sales Manager. If you ever cared about anyone but yourself maybe you would have taken the time to

find this out. I shall not comment any further on this matter as the laptop is mine, and currently I am in

the process of pursuing my own avenue of recourse in connection with my dismissal.

Sincerely,

Raymond Floyd

This is Exhibit D referred to in the affidavit of

CHUCK CASE sworn before me, this 17th day of

August, Yr 0.

Henry P. Stewart

Commissioner for taking affidavits




EXHIBIT E TO CASES AFFIDAVIT

MESSAGE

CONCERNING: Raymond Floyd

TELEPHONE: 416 - 555 - 5555 MESSAGE:

called Floyd at home, approximately 3:00 p.m.

Floyd was very hostile towards me once I introduced myself

I informed him that the laptop was the property of White House,

and that it was the policy of White House, that all equipment that

had been loaned to employees during the course of employment be

returned upon termination, resignation or retirement

Floyd called me Owens Lackey, and re-iterated that there was

not a chance in hell that he was going to return the laptop

Floyd kept mentioning that he owned the laptop, and had for some

time, and would not let me reason with him

DATE:June 28, Yr 0 TIME: 3:00 p.m.

RECEIVED BY: Chuck Case

This is Exhibit E referred to in the affidavit of

CHUCK CASE sworn before me, this 17th day of

August, Yr 0.

Henry P. Stewart

Commissioner for taking affidavits





ONTARIO


BETWEEN:

RAYMOND FLOYD

Plaintiff

and


Defendant

AND BETWEEN:



and



AFFIDAVIT OF RAYMOND FLOYD

I, RAYMOND FLOYD, of the City of Toronto, in the Province of Ontario, businessman,

MAKE OATH AND SAY:

1. I am the plaintiff in this action, and also one of the defendants in the counterclaim that White

House Siding Company Ltd. (White House) has brought. I am making this affidavit in response to a

motion brought by White House for an interim order for recovery of a computer that White House says

belongs to it.




2. I have read the affidavit that Chuck Case swore for this motion. Whereas Mr. Case has no

personal knowledge of most of the information that he put in his affidavit, I have personal knowledge of

all of the facts that I am swearing to in my affidavit.

3. I was employed by White House for approximately fourteen years, from Yr-14 to Yr 0. I worked

as a warehouse supervisor from Yr-14 to Yr-9 and then as a salesperson from Yr-9 to Yr-3. I was

promoted to the position of sales manager in August Yr-3, which position I held until White House

abruptly fired me on April 16, Yr 0.

4. As sales manager at White House, my responsibility was to oversee a sales force of four and to

report to the Vice-President of Marketing. My compensation package included an annual salary of

$42,000, medical and dental benefits, a laptop computer and the use of a company car.

5. In his affidavit, Mr. Case refers to Gus Greene, former sales director of White House. Mr. Case

didnt come to White House until long after Mr. Greene had left, whereas I knew Mr. Greene on a first-

name basis for many years. One thing that Mr. Case is correct about is that it was Mr. Greenes idea to

buy laptop computers for the salesmen, and also for me as Sales Manager. This was done in January, Yr-

3, and I know that all of the salesmen were happy to have them, and I was too. Mr. Green told us that all

sales personnel were to get laptop computers due to the travel demands associated with the job and the

need to get access to and record information easily while out of the office. That applied to me as well,

because I sometimes visited customers, and I also worked at home on company business.

6. I received an Armada laptop computer, serial number 12345ABCDE (the Computer) from

White House at the same time as all of the other salesmen, in January, Yr-3.

7. When I received the Computer, Mr. Greene informed me that if I remained employed with White

House for a period of at least two years, the Computer would belong to me. As I recall, the exact words

that he used were, Ray, stay for two more years and this laptops yours. I think that Mr. Greene may




have been concerned that I would leave White House, because I was a conscientious employee and a

good salesman, and he was offering me a little incentive to stay.

8. Two years after I received the Computer, I assumed that it belonged to me, based on what

Mr. Greene had told me. In fact, one time I wrote a letter to Mr. Greene and mentioned the fact that the

computer now belonged to me. Attached hereto and marked as Exhibit A is a copy of my letter dated

July 18, Yr-1.

9. Mr. Greene never responded to my letter, and certainly never challenged the fact that the

computer belonged to me. In fact, no one at White House ever suggested to me that the computer did not

belong to me until I received the first letter from Mr. Case, which he refers to in his affidavit.

10. In his affidavit, Mr. Case states that he believes that my Computer contains confidential customer

information. Mr. Case is mistaken. While I certainly did keep White House customer information on the

computer when I worked at White House, I deleted all of that information from the Computer as soon as I

was fired, and well before I began to operate my business seriously. If I had really wanted to steal White

Houses customer information, I would simply have printed out the information in hard copy. There is

simply no reason why I would want or need to keep the Computer in order to have access to this type of

information.

11. As Mr. Case knows perfectly well, but didnt state in his affidavit, I also kept all of my customer

information on the desktop computer that I used at home. This desktop computer did in fact belong to

White House. When I was fired, I returned the desktop computer to White House, complete with all of

the customer information that it contained.




12. I believe White House is requesting the return of the Computer only in order to harass me and

make it more difficult for me to run my business. White House knows that the Computer is fundamental

to my business and is trying to harass me and increase my legal fees. As White House knows, I rely on

the Computer to solicit business over the Internet, and I use it to also maintain administrative and

financial information for my business. It is an integral component of my business operations, and I

simply cant afford to buy a replacement right now.




13. I confirm that I received the two letters from Mr. Case that he refers to in his affidavit, in which

he asked me to return the Computer. When I received the first letter, I assumed that Mr. Case had been

mistakenly informed that the Computer was the property of White House, but I was so busy that I didnt

bother to reply. When I got the second letter, I did reply to Mr. Case and informed him that the Computer

was my property.

14. In summary, White House is just plain wrong in stating that it owns the Computer. In any event, I

have a much greater need for the computer than White House does, and I ask the court to dismiss White

Houses motion.

SWORN before me at the City of Burlington, in the

Province of Ontario, on September 8, Yr 0

____________________________________

Ruby Sartor


)

)

)

)

_____________________________

RAYMOND FLOYD




Raymond Floyd

Direct Phone: 416-203-4450

E-Mail: [email protected]

EXHIBIT A TO FLOYDS AFFIDAVIT

July 18, Yr-1

Mr. Gus Greene

Sales Director

White House Siding Company Ltd.

441 Industrial Park

Toronto, Ontario

M6R 7P2

Dear Gus,

Yes, I know you told me to relax on my vacation but I figured I would send you a brief letter

from my new laptop. Its great, I can do work while I am away, and if I lose the damn thing I no longer

am in debt to White House (or as you call it the devil). Anyhow, I will help with the Pemberton matter

as soon as I return from holidays after the August long-weekend.

In the meantime, I just wanted to say that its been great working together over the last few

weeks. It sure does pay to be loyal. The last two years have just seemed to fly by and all I have to show

for it is the laptop! Just kiddinglife could not possibly be better for me right now.

Speak to you soon amigo.....Off for another dunk in the lake!!

Kindest Regards,

Raymond

This is Exhibit A referred to in the affidavit of RAYMOND FLOYD sworn before me, this 8

th

day of September, Yr 0.

Ruby Sartor Commissioner for taking affidavits





ONTARIO


BETWEEN:

RAYMOND FLOYD

Plaintiff

and


Defendant

AND BETWEEN:



and

RAYMOND FLOYD and R. F. ALUMINUM INC.


FACTUM SUBMITTED ON BEHALF OF THE DEFENDANT

(MOVING PARTY), WHITE HOUSE SIDING COMPANY LTD.

(White Houses motion to amend amended statement of defence and

counterclaim, and for interim recovery of personal property Rule 44)




PART I NATURE OF THE MOTION

1. The defendant (plaintiff by counterclaim), White House Siding Company Ltd. (White House)

brings this motion for an order (i) for leave to amend its amended statement of defence and counterclaim

further by adding certain paragraphs (appearing in Schedule A of the notice of motion) regarding the

unlawful detention by the plaintiff (Floyd) of an Armada laptop computer bearing serial number

12345ABCDE (the Computer), and (ii) for an interim order to recover possession of the Computer

from Floyd.

PART II FACTS

A. Background to the Action

2. Floyd was employed at White House for 14 years, until his dismissal on April 16, Yr 0.

Affidavit of Chuck Case sworn August 17, Yr 0 (Case Affidavit), p. , para. 6; Motion record, Tab __, p. __.

3. Floyd worked as a warehouse supervisor from Yr-14 to Yr-9 and then as a salesperson from Yr-9

to Yr-3. He was promoted to the position of sales manager in August Yr-3, which position he held until

his dismissal on April 16, Yr 0.

Affidavit of Raymond Floyd (Floyd Affidavit), sworn September 8, Yr 0, p. , para. 3 responding partys motion record, Tab __, p. __.

4. Floyd started this action, for damages for allegedly wrongful dismissal, one month after his

dismissal. White House defended the action on the ground that it had just cause to dismiss Floyd

summarily; specifically, that Floyd had improperly claimed reimbursement of several thousands of

dollars of business expenses that he did not actually incur. Thereafter, White House discovered that

Floyd was engaged in improper competition and solicitation of White Houses customers, amended its

defence accordingly, and also brought a counterclaim against Floyd for damages for breach of contract

and breach of fiduciary duty.

Statement of claim; motion record, Tab __.

Statement of defence; motion record, Tab __.




Amended statement of defence and counterclaim; motion record, Tab __.

B. White Houses purchase of the Computer, and the Loan of the Computer to Floyd

5. Several years ago, White Houses former sales director (one Gus Greene) decided to provide its

sales personnel with portable computers on which they could keep customer information for use when

they were on the road visiting White Houses customers. Mr. Greene told all of the salesmen, including

Floyd, that White House was providing them with laptop computers, but that the computers belonged to

White House, and would have to be returned to White House if at any time in future any of salesmen left

White Houses employ. White House purchased the computers in January, Yr-3.

Case Affidavit, p. , para. ; motion record, Tab __, p. __.

Invoice for purchase of computers, Exhibit A to Case Affidavit;

motion record, Tab __.

C. White Houses Demand for Return of the Computer, and Floyds Refusal

6. One month after Floyd was dismissed, Chuck Case (Case) sent a letter to Floyd requesting that

Floyd return the Computer to White House.

Case affidavit, p. , para. ; motion record, Tab __, p. __.

Letter from Case to Floyd dated May 22, Yr 0, Exhibit B to Case

Affidavit; motion record, Tab __.

7. Floyd never answered Cases request. On June 19, Yr 0, Case wrote again to Floyd stating that

the Computer was the rightful property of White House and had to be returned.


Letter from Case to Floyd dated June 19, Yr 0, ,Exhibit C to Case

Affidavit; motion record, Tab __.

8. Floyd then wrote back to Case and took the position, which he had never taken before, that the

Computer belonged to him.





Letter from Floyd to Case dated June 25, Yr 0, Exhibit D to Case

Affidavit, ; motion record, Tab __.

9. In response to this letter, Case telephoned Floyd on June 28, Yr 0 and asked Floyd again to return

the Computer. Again Floyd refused.


Cases notes of telephone conversation, Exhibit E to Case Affidavit; motion record, Tab __.

D. The Computer contains confidential information belonging to White House

10. Although Floyd denies this in his affidavit, there is good reason to believe that the Computer

contains confidential customer information belonging to White House. Cases evidence in this regard is

as follows:

(a) The entire purpose for White House salesmen to have the computers was to keep such

information readily available for them to use when they were on the road.

(b) Many of the salesmen updated the customer lists and other customer information on their

computers monthly, when the updated lists became available on White Houses computer

system, and Floyd was no different than the other salesmen.

(c) Case often saw Floyd leaving the White House premises to visit customers carrying his

computer or arriving back from a two- or three-day business trip with his computer.

(d) The confidential information that was kept on the salesmens computers, included

(i) customer names,

(ii) customer addresses, telephone and fax numbers, and e-mail addresses,

(iii) information as to each customers past orders, and

(iv) pricing information (that is, the particular price structure that White House

offered to each customer).

This is all highly confidential proprietary information belonging to White House.

Case affidavit, p. , para. and ; motion record, Tab __, p. __.




11. Floyd has set up a business in competition with White House and has been soliciting White

Houses customers. White House believes that Floyd is improperly using confidential customer

information belonging to White House, and that Floyd has no legitimate claim to the Computer.

Case affidavit, p. , para. and ; motion record, Tab __, p. __.




PART III ISSUES AND LAW

A. Requirements on motion for interim recovery of personal property

12. In order to be entitled to an interim order for the recovery of personal property, rule 44.01(1)

requires the moving party to set out, by affidavit,

(a) a description of the property sufficient to make it readily identifiable;

(b) the value of the property;

(c) that the plaintiff is the owner or lawfully entitled to possession of the property;

(d) that the property was unlawfully taken from the possession of the plaintiff or is

unlawfully detained by the defendant; and

(e) the facts and circumstances giving rise to the unlawful taking or detention.

It is submitted that White Houses affidavit evidence has satisfied all of the foregoing requirements.

B. The substantial grounds test on ownership of the property

13. On the issue of the moving party being the owner or lawfully entitled to possession of the

property in question (para. 12(c) above), such party must show substantial grounds to support its claim.

If the facts put forward by the moving party afford substantial grounds for its claim, then the order should

be granted.

Ryder Truck Rental v. Walker, [1960] O.W.N. 70, at p. 71 (Senior

Master), affd [1960] O.W.N. 114 (H.C., Ferguson J.)

followed in Clark Door of Canada Ltd. v. Inline Fiberglass Ltd. (1996),

45 C.P.C. (3d) 244) (Ont. Gen. Div., Molloy J.), at p. 251.

14. The court should not engage in a trial of the issue of ownership on such a motion, but rather

should consider only whether substantial grounds exist to justify an order for interim recovery of

property. The substantial grounds test will be met if, on the evidence, the moving party is more likely

to succeed at trial on the issue of ownership than is the responding party.

Ryder Truck Rental v. Walker, supra (para. ), at p. 71.

Clark Door of Canada Ltd. v. Inline Fiberglass Ltd., supra (para. ) at pp. 251-2.




15. The fact that title to the property in question is contested, or that resolution of the issue of

ownership will involve issues of credibility, does not preclude an order for interim recovery of property

being granted.


C. On the evidence, White House is the owner of and lawfully entitled to possession of

the Computer, and Floyd is unlawfully detaining it

16. The evidence is clear that White House purchased and was the original owner of the Computer.

Floyd does not dispute this. Cases evidence is also clear and credible that the Computer was made

available to Floyd for business purposes alone. It is submitted that Floyds claim that he was told that the

computer would be his if he stayed at White House for two years is implausible and is unsupported by

any documentation.

17. Although there is a dispute between the parties as to present entitlement to the Computer, the

undisputed fact that White House purchased the Computer and was the original owner of it constitutes

substantial grounds to believe that White House is the owner of the Computer and that Floyd is

unlawfully detaining it.

D. The balance of convenience favours White House obtaining possession of the

Laptop until the issue of ownership has been settled on the merits

18. On a motion for interim recovery of personal property, the court must consider whether the

potential benefit in permitting the moving party to take possession of the property outweighs the harm

that it would cause to the responding party if the property were removed.


19. In this regard, the danger to White House is clear. The Computer probably contains valuable

confidential customer information, which is available to Floyd to use improperly to solicit business. By




contrast, the inconvenience to Floyd of giving up possession of the computer is very slight. The

monetary value of the Computer is small, and Floyd could easily purchase or lease a replacement without

hardship. It is therefore submitted that the balance of convenience favours White House.

E. Amendment of White Houses amended statement of defence and counterclaim

20. Rule 26.01 provides that, on motion at any stage of an action the court shall grant leave to

amend a pleading on such terms as are just, unless prejudice would result that could not be compensated

for by costs or an adjournment (emphasis added).

21. In his affidavit, Floyd has not alleged that he would suffer any prejudice if White Houses

proposed amendments to its pleading are permitted. White House therefore submits that it should be

granted leave to amend its amended statement of defence and counterclaim as sought.




PART IV ORDER SOUGHT

22. White House therefore respectfully requests the following:

(a) an order for leave to amend its amended statement of defence and counterclaim further

by adding thereto the paragraphs appearing in Schedule A of the notice of motion;

(b) an order that White House recover interim possession of the Computer from Floyd; and

(c) its costs of this motion.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

Henry P. Stewart

OF COUNSEL FOR THE DEFENDANT (PLAINTIFF

BY COUNTERCLAIM) AND MOVING PARTY,

WHITE HOUSE SIDING




SCHEDULE A LIST OF AUTHORITIES

1. Ryder Truck Rental v. Walker, [1960] O.W.N. 70, affirmed [1960] O.W.N. 114 (H.C.)

2. Clark Door of Canada Ltd. v. Inline Fiberglass Ltd. (1996), 45 C.P.C. (3d) 244 (Ont. Gen. Div.)





ONTARIO


BETWEEN:

RAYMOND FLOYD

Plaintiff

and


Defendant

AND BETWEEN:



and

RAYMOND FLOYD and R. F. ALUMINUM INC.


FACTUM SUBMITTED ON BEHALF OF THE PLAINTIFF

(RESPONDING PARTY), RAYMOND FLOYD

(White Houses motion to amend amended statement of defence and

counterclaim, and for interim recovery of personal property Rule 44)




PART I OVERVIEW OF FLOYDS POSITION ON THIS MOTION

1. Floyd does not oppose that part of White Houses motion in which White House seeks to amend

its amended statement of defence and counterclaim.

2. Floyd does, however, strenuously oppose White Houses request for the interim recovery of the

Computer, for the following reasons, which are explained more fully below:

(a) White House did not lend the Computer to Floyd, as it has claimed. Rather, White

House provided portable computers to all of its sales staff, and explicitly stated to Floyd

that the Computer would become his property if Floyd remained with White House for a

minimum of two years. Floyd remained with White House for more than three years

after he received the Computer. Accordingly, the Computer is the property of Floyd and

should be left in his possession.

(b) In addition, White House alleges that the Computer contains confidential client

information that Floyd is using to solicit former clients. While Floyd did maintain

confidential customer information on his Computer during his tenure at White House, he

deleted all of that information from the Computer as soon as he was fired, and well

before he began to operate his business seriously.

(c) The Computer is an integral part of Floyds new business, whereas White House has no

pressing need for it to be returned. The computer should therefore remain where it is,

with Floyd, until the issue of ownership can be determined at trial.

PART II FACTS

A. Floyds Position on Facts as Stated in White Houses Factum

3. Floyd accepts as correct the facts as stated in paragraphs 2-4, 6, 7 and 9 of White Houses

factum. Floyd disagrees with the facts stated in paragraphs 8, 10 and 11 thereof, and also states that the

facts set out in paragraph 5 of White Houses factum are incomplete.




B. Additional Facts

4. When Mr. Gus Greene of White House made the decision to purchase computers for the sales

force, he told Floyd that the Computer would become his property if he remained an employee of White

House for a period of at least two years. Most important to this motion, in its evidence White House has

not denied this statement by Mr. Greene.

Affidavit of Raymond Floyd (Floyd Affidavit), p. , para. 7; motion record, Tab __, p 19.

5. On July 18, Yr-1, after two years had passed since he had received the computer, Floyd wrote a

letter to Mr. Greene, expressing his understanding that he now owned the Computer.

Floyd Affidavit, p. , para. 8; motion record, Tab __, p 19;

Letter from Floyd to Greene, Exhibit A to Floyd Affidavit; motion

record, Tab __, p 21.

6. Mr. Greene never responded to Floyds letter, and neither Mr. Greene nor anyone else at White

House ever challenged the fact that the Computer belonged to Floyd.

Floyd Affidavit, p. , para. 9; motion record, Tab __, p 19.

7. White House has stated that it believes that the Computer contains confidential information. The

facts are these: While Floyd did keep White House customer information on the Computer when he

worked at White House, he deleted all of that information from the Computer as soon as he was fired,

and well before he began to operate his business seriously. As Floyd says in his affidavit, If I had really

wanted to steal White Houses customer information, I would simply have printed out the information in

hard copy. There is simply no reason why I would want or need to keep the Computer in order to have

access to this type of information.

Floyd Affidavit, p. , para. 10; motion record, Tab __, 19.




8. Floyd also kept all of his customer information on the desktop computer that he used at home.

This desktop computer did in fact belong to White House. When Floyd was fired, he returned the

desktop computer to White House, complete with all of the customer information that it contained.

Floyd Affidavit, p. , para. 11; motion record, Tab __, pp 19-20.

9. Floyd believes that White House is requesting the return of the Computer only in order to harass

him and make it more difficult for Floyd to run his business. The Computer is fundamental to Floyds

business. Floyd relies on the Computer to solicit business over the Internet, and he also uses it to

maintain administrative and financial information for his business. It is an integral component of Floyds

business operations, and he simply cant afford to buy a replacement at present.


10. After his dismissal, when Floyd received the first letter concerning the Computer from Mr. Case,

he assumed that Case had been mistakenly informed that the Computer was the property of White House.

Floyd was so busy that he didnt bother to reply. When Floyd received the second letter, he did reply to

Mr. Case and informed him that the Computer was his property.


PART III ISSUES AND LAW

A. White House must show substantial grounds for its assertion that it is the owner

the of the Computer

11. To be successful on a motion for an interim recovery of property, it is necessary to show

substantial grounds to support the allegations. The courts require the moving party to show the facts

upon which it bases its claim. Only if those facts afford substantial grounds for the moving partys claim

should such an order be granted.

Ryder Truck Rental v. Walker, [1960] O.W.N. 70, affirmed [1960]

O.W.N. 114 (H.C.)

Clark Door of Canada Ltd. v. Inline Fiberglass Ltd. (1996), 45 C.P.C.

(3d) 244 (Ont. Gen. Div.).




12. The degree of proof necessary to meet the substantial grounds test is high. The moving party

must show more than a mere probability of success at trial. The test is substantial grounds, not

reasonable or probable grounds.

Clark v. Inline Fiberglass, supra.

Peco Tool & Die Ltd. v. 939991 Ontario Ltd. (1993), 19 C.P.C. (3d) 123

(Ont. Gen. Div., leitch J.), at p. 127.

13. This high standard of substantial grounds has been adopted because an order for the interim

recovery of property is in the nature of a mandatory order and is a greater interference with the rights of

the responding party than is a prohibitive injunction.


14. If it is not possible because of credibility issues and competing affidavit evidence to find that the

moving party has shown substantial grounds then the moving party should not be successful on its

motion.


Tuffy v. Schloendorf, [1993] O.J. No. 1581 (QL) (Ont. Gen. Div., Carter

J.) at para 9.

15. Those cases in which there is clear documentation supporting the moving party are more likely to

meet the substantial grounds test. In contrast, those cases in which straight issues of credibility will

determine the action are less likely to meet the test. It is respectfully submitted that White House has not

meet the threshold necessary to satisfy the substantial grounds because (i) there is no clear

documentation of ownership, (ii) there is competing affidavit evidence, and (iii) there are substantial

credibility issues.

B. White House cannot establish that it is the owner or lawfully entitled to possession

of the Computer




16. In order to satisfy the substantial grounds test the moving party must also be able to satisfy all

the elements listed in rule 44.01(1). It is respectfully submitted that White House cannot prove elements

(c) and (d), namely, that White House is the owner or lawfully entitled to possession of the property and

that the property was unlawfully taken from its possession or is unlawfully detained by Floyd. As is

stated above, in its evidence on this motion, White House has not denied that Mr. Greene told Floyd that

the Computer would be his after two years.

17. It is not appropriate to make an order for the return of property where title is not obvious,

apparent or most likely vested in the moving party, but instead where the whole case will turn on the

ownership of the property and where that issue depends on the interpretation of the contract.

Robert Cooper Productions Inc. v. J.S. Kastner Associates Ltd. (1982),

24 C.P.C. 269 (Master Donkin), at pp. 271-2.

C. The balance of convenience should result in the court refusing to grant an order for

interim recovery of the Computer

18. The court must determine whether the potential benefit in permitting the moving party to take

possession of the property until the issue is resolved at trial outweighs the harm that it would cause to the

responding party if the property were removed.


19. Even if the moving party has substantial grounds for its claim to ownership of the property, under

with rule 44.03(1) the court has the discretion to leave the property in the possession of the responding

party.

20. It is respectfully submitted that the court should leave the Computer in the possession of Floyd

until trial, because it is an integral part of Floyds current business. White House offered no evidence

that it requires the Computer for any reason. If required, Floyd would be willing to post some security

court until trial in accordance with rule 44.03 (1).




PART IV ORDER SOUGHT

21. Floyd therefore respectfully submits that

(a) White Houses requested amendments to its pleading be permitted, so that the issue of

ownership of the computer can be addressed at trial, where it should properly be

determined, but that

(b) White Houses motion for interim recovery of the Computer be dismissed.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

Ruby J. Sartor

OF COUNSEL FOR THE PLAINTIFF (DEFENDANT

BY COUNTERCLAIM) AND RESPONDING PARTY,

RAYMOND FLOYD




SCHEDULE A LIST OF AUTHORITIES

1. Ryder Truck Rental v. Walker, [1960] O.W.N. 70, affirmed [1960] O.W.N. 114 (H.C.)

2. Clark Door of Canada Ltd. v. Inline Fiberglass Ltd. (1996), 45 C.P.C. (3d) 244 (Ont. Gen. Div.)

3. Peco Tool & Die Ltd. v. 93991 Ontario Ltd. (1993), 19 C.P.C. (3d) 123 (Ont. Gen. Div., Leitch

J.), at p. 127.

4. Tuffy v. Schloendorf, [1993] O.J. No. 1581 (QL) (Ont. Gen. Div., Carter J.) at para 9.

5. Robert Cooper Productions Inc. v. J.S. Kastner Associates Ltd. (1982), 24 C.P.C. 269 (Master

Donkin), at pp. 271-2

motion material

Documents

counterclaim white house

counterclaim of white

property of white house

white house siding company

plaintiff floyd

white houses position

white houses clients

raymond floyd plaintiff