Court of Appeal for Ontario
Before: Winkler C.J.O., Goudge and Epstein JJ.A.
Between:
Irwin Mintz, Trustee
Plaintiff (Respondent)
and
Craig Wallwin, Edward Harper, Jeanne Hudlett and Thomas Ambeau
Defendants (Appellants)
Counsel:
Eric O Gionet, for the appellants
David Taub and Carla Lubell, for the respondent Irwin Mintz, Trustee
Heard and released orally: February 12, 2009
On appeal from the order of Justice Ellen MacDonald of the Superior Court of Justice dated June 13, 2008.
ENDORSEMENT
1In our view, the motion judge erred in applying Rule 24.05(2) in a manner that, in essence, entitled the respondent to proceed with a second identical action, subject only to paying the costs of the first action that had been dismissed for delay.
2The rule does not do this. It provides no right to a plaintiff to commence a second action identical to one that has been dismissed for delay. In this case it does not give the respondent an answer to the appellant’s claim that the respondent’s second action is an abuse of process, a claim that the motion judge did not address.
3The respondent concedes that the order dismissing the first action for delay was correct. In our opinion to permit the respondent to proceed with the second action would indeed constitute an abuse of process. In the circumstances before us, it would bring the administration of justice into disrepute to now permit the respondent to proceed with a second, identical action.
4The appeal must be allowed. The order sought is granted. Costs of the appeal fixed at $5,500.00. No costs of the motion.
“Winkler C.J.O.”
“S.T. Goudge J.A.”
“G. Epstein J.A.”
