Correia v. Correia Estate, 2010 ONCA 199

CITATION: Correia v. Correia Estate, 2010 ONCA 199

DATE: 20100316

DOCKET: C51098

COURT OF APPEAL FOR ONTARIO

Simmons, Cronk and Rouleau JJ.A.

BETWEEN:

Jose Correia and Lilita Maria De Jesus Correia

Plaintiffs/Appellants

and

The Estate of Jose Humbria Correia and Maria Teresa Correia a.k.a. Maria Teresa Sequeira De Jesus

Defendants/Respondents

L. J. Melconian, for the appellants Jose and Lilita Correia

Charles M. Gastle, for the respondents

Heard and endorsed: March 12, 2010

On appeal from the orders of Justice Douglas K. Gray of the Superior Court of Justice dated September 2 and 28, 2009.

APPEAL BOOK ENDORSEMENT

[1] The appellant, Lilita Correia, has now delivered a revised Fresh as Amended Statement of Claim in which she is the only plaintiff. The appellants therefore abandoned their argument that the motion judge erred in striking out the first Fresh as Amended Statement of Claim.

[2] At the time of the motion, pleadings were not closed. In these circumstances, Jose Correia, who was a plaintiff in the action as originally constituted, was entitled, under rule 23.01, to discontinue his action as of right subject to liability for costs of the action. Particularly because pleadings were not closed, it was premature for the motion judge to impose terms requiring that Mr. Correia deliver an affidavit of documents and submit to discovery when permitting Lilita Correia to deliver a new pleading. Paragraphs 4 and 5 of the order are therefore set aside. If necessary, those orders may be sought on proper evidence and in accordance with the applicable rules at a later stage of the action.

[3] With respect to costs, although the respondents argue that the motion judge's reasons indicate he was making a global costs award relating to the motion and the action, the appeal is from the formal order, which fixes costs of the motion at $45,000 payable by both appellants on a joint and several basis. The costs sought in relation to the motion were approximately $26,000. Given this factor and our disposition of the appeal, the amount awarded is so excessive as to constitute an error in principle.

[4] In the circumstances, leave to appeal is granted, and the costs of the motion are varied to $10,000 without prejudice to the respondents’ right to reapply to the motion judge to fix the costs of the action, if any, payable by Jose Correia.

[5] In our view, this is not an appropriate case for costs of the appeal.