COURT OF APPEAL FOR ONTARIO
RE: BARRY ISEMAN and 918888 ONTARIO LIMITED o/a WELLAND CLINIC PHARMACY (Plaintiffs/Appellants) v. KIM ALLEN RUTHIG and ONTARIO COLLEGE OF PHARMACISTS (Defendants/Respondents)
BEFORE: OSBORNE A.C.J.O., AUSTIN & LASKIN JJ.A.
COUNSEL: Brian A. Banfield
for the appellant
Michael C. Birley
for the respondent
HEARD: November 28, 2000
On appeal from the judgment of Justice Joseph W. Quinn dated December 28, 1999.
E N D O R S E M E N T
1We are not satisfied that the committee’s decision that the proceedings against the appellant Iseman were not unwarranted (a decision that was part of the committee’s disposition of costs) answered the central question whether the investigation and the proceedings against the appellant were undertaken in bad faith. Thus, the first requirement of issue estoppel has not been met. Since the motions judgment determined the respondents’ summary judgment motion on the basis of issue estoppel, his order cannot stand.
2The appeal is allowed, the order dismissing the appellants’ action is set aside and the matter is remitted to the motions judge to determine whether, apart from issue estoppel, there is a genuine issue for trial. The appellant are entitled to their costs of this appeal. Costs of the summary judgment motion should be at the discretion of the motions judge who is seized of the matter.
3In our view, the proposed fresh evidence, including the evidence that we received today, has no bearing on the legal issues before us. Leave to admit the fresh evidence is, therefore, dismissed.
“C.A. Osborne A.C.J.O.”
“Austin J.A.”
“John Laskin J.A.”s