COURT OF APPEAL FOR ONTARIO
RE:
SANDRA MAY BOTTAN, JOHN BOTTAN And 906630 ONTARIO INC. carrying on business as THE REAR VIEW MIRROR (Appellants/Plaintiffs) – and – ERNIE VROOM and PARLIAMENT STREET HOLDINGS (Respondents/Defendants/Plaintiffs By Counterclaim) – and – SANDRA MAY BOTTAN, JOHN BOTTAN, ANTONIO BOTTAN And 906630 ONTARIO INC. carrying on business as THE REAR VIEW MIRROR (Appellants/Defendants to Counterclaim)
BEFORE:
ROSENBERG, FELDMAN JJ.A. and GILLESE J. (Ad hoc)
COUNSEL:
Harvey Stone for the Appellants, Antonio Bottan and the Rear View Mirror Sandra Bottan appearing in person
Lawrence G. Theall for the Respondents, Ernie Vroom and Parliament Street Holdings Ltd.
HEARD:
February 27 and March 1, 2002
On appeal from the orders of Justice Ian V. B. Nordheimer dated July 3, 2001 and August 9, 2001.
E N D O R S E M E N T
[1] The appellants appeal from two orders of the motions judge. In the order of July 3, 2001 (“the first order”), the motions judge dismissed the plaintiffs’ action and struck out all defences to the counterclaim. On August 9, 2001 (“the second order”), the motions judge granted judgment to the defendants on their counterclaim with the result that the defendants were declared the owners of personal property that was the subject matter of the litigation. The appellants ask that both orders be set aside.
THE FIRST ORDER
[2] By the terms of a prior court order dated July 19, 2000, the defendants were entitled to have the statement of claim struck and the plaintiffs’ action dismissed upon the failure of the plaintiffs to post security as ordered.
[3] The plaintiffs and Antonio Bottan appealed the order of July 19, 2000, to both the Divisional Court and the Court of Appeal.
[4] The appeal to the Court of Appeal was dismissed for delay, was reinstated and then quashed on March 16, 2001. On July 26, 2001, counsel for the plaintiffs and Antonio Bottan wrote asking that the Court re-open the motion to quash the appeal. By letter dated August 9, 2001, he was advised that two of the three members of the panel had reviewed the matter and were of the opinion that the Court should not hear the matter again.
[5] The plaintiffs and Antonio Bottan also brought a motion for leave to appeal the order of July 19, 2000 to the Divisional Court. This motion was dismissed on April 6, 2001, with costs of $5,000 payable forthwith to the responding parties.
[6] After leave to appeal was refused, the plaintiffs and Antonio Bottan brought a motion to the Divisional Court to introduce fresh evidence and for a stay of the order refusing leave pending a hearing before a full panel of the Divisional Court. The motion to stay and introduce fresh evidence was dismissed, as was the attempt to appeal to a full panel of the Divisional Court. Costs were again fixed and payable to the responding parties.
[7] A three-person panel of the Divisional Court subsequently made an order setting aside the dismissal of the appeal but stayed their order until the outstanding costs awards were paid.
[8] The costs awards have not been paid.
[9] At the time that the first order was made, 24 court appearances had taken place in a 15 month period, the plaintiffs had failed to pay $38,000 in costs that had been ordered payable forthwith and they had failed to post $300,000 security as required by the terms of the order of July 19, 2000.
[10] That portion of the first order striking the statement of claim and dismissing the action flowed from the terms of the July 19, 2000 order, which was final and binding and had been outstanding for almost 12 months.
[11] Thus, the appeal of that portion of the first order relating to dismissal of the action amounts to a collateral attack on the order of July 19, 2000 and is without merit.
[12] The other part of the first order relates to the striking of the defences to the counterclaim and was the result of an exercise of discretion by the motions judge.
[13] Where a motions judge exercises discretion, an appellate court should intervene only where the discretion has been exercised on a wrong principle of law or a clear error has been made. It is not the role of an appellate court to replace the exercise of discretion by the motions judge. An appellate court should defer to the findings of fact made by a motions judge unless the motions judge disregarded or failed to appreciate relevant evidence.
[14] The motions judge dismissed the motions of Antonio Bottan and the plaintiffs, properly finding that he had no jurisdiction to grant the relief sought as the motions amounted to an attempt to further appeal the order of July 19, 2000. He turned his attention to the motion for summary judgment, noting that its presence could not clothe him with jurisdiction to interfere with the order of another judge. He considered again the alleged impecuniosity of the plaintiffs and of Antonio Bottan. He noted that, in light of the findings of judges in prior motions, there was a very real question as to the legitimacy of that plea, but he assumed they were impecunious for the purpose of deciding the matter. Having reviewed the extensive procedural history of the action and noted the clear failings of the plaintiffs and Antonio Bottan to obey the orders of the court, he exercised his discretion pursuant to rule 57.03(2) and 60.12.
[15] There is nothing in the record to suggest an improper exercise of discretion. On the contrary, after a full review of the lengthy interlocutory history, on the face of the record before the motions judge, there was ample evidence justifying the exercise of discretion.
[16] The appeal in respect of the first order is dismissed.
THE SECOND ORDER
[17] In deciding the appeal in relation to the second order, it must be determined whether the motions judge erred in granting judgment when he found that the admitted facts established that the respondent, Parliament, was entitled to possession of the abandoned goods.
[18] The plaintiffs, through their action, sought the recovery of the goods in question on the basis that they were the owners of those goods. The first order dismissed that action. Therefore, the plaintiffs had no right at law to claim ownership or possession of the goods as against Parliament which had possession and claimed ownership of the goods.
[19] Antonio Bottan stood in a different position by virtue of being a defendant by counterclaim but not a plaintiff. As a result, his position must be considered separately from that of the plaintiffs when deciding the appeal of the second order. However, like the plaintiffs, Antonio Bottan is bound by the rule that a defendant by counterclaim who has been noted in default is deemed to admit the truth of the allegations of fact made in the statement of defence and counterclaim.
[20] On the admitted facts, as the original owners of the goods, the Bottans – including Antonio Bottan – made an agreement with the respondents that all property remaining in the building after March 9, 2000, was deemed abandoned. In agreeing to this term while possessed of the knowledge that the property could not be removed in ten days, it could be found that the defendants by counterclaim intentionally abandoned the goods. In any event, as the Bottans negotiated and agreed to the terms of the agreement, it was open to the motions judge to find that they had manifested a positive intention to abandon the goods and thereby relinquish any interest and title to the goods that remained in the building after 6:00 p.m. on March 9, 2000.
[21] We see no error in the determination by the motions judge that the property had been abandoned and title to it lay with Parliament. The appeal of the second order also fails.
[22] The appeal is dismissed with costs. If the parties are unable to agree on quantum, they may make brief written submissions on the matter of quantum alone, within 10 days of the release of this endorsement.
“M. Rosenberg J.A.”
K. Feldman J.A.”
“E.E. Gillese J.A.”
