Court File and Parties

CITATION: McGowan v. Toronto (City), 2010 ONCA 362

DATE: 20100518

DOCKET: C49553

COURT OF APPEAL FOR ONTARIO

MacPherson, Blair, MacFarland JJ.A.

BETWEEN:

James Henry McGowan

Plaintiff (Respondent)

and

City of Toronto and Toronto Police Services Board

Defendants (Appellants)

Counsel:

David A. Gourlay, for the appellants

Paul Robson, for the respondents

Heard: May 17, 2010

On appeal from the order of the Divisional Court (Justice Frances P. Kiteley) dated April 7, 2008.

APPEAL BOOK ENDORSEMENT

[1] The appellants appeal from the order of Kiteley J. of the Divisional Court dated April 7, 2008 setting aside the order of Deputy Judge Mungovan of the Small Claims Court dated December 18, 2006 dismissing the respondent’s action in the Small Claims Court as an abuse of process.

[2] The essence of Kiteley J.’s reasoning was that the respondent was not seeking to set aside any of his convictions for various parking offences contrary to the Highway Traffic Act, R.S.O. 1990, c. H. 8. As explained by Kiteley J.:

Mr. McGowan’s allegation is that he should not have been charged. He does not seek to set aside any of the convictions. I do not see that he seeks to set aside a judicial finding, which is the essence of abuse of process. I am persuaded that the Deputy Judge erred in his determination that the plaintiff sought to re-litigate. I allow the appeal in that respect.

[3] With respect, this conclusion evinces too narrow an interpretation of the doctrine of abuse of process. Relitigation and abuse of process are not restricted to actions in which a party is seeking to set aside his or her convictions. An action can also be an abuse of process when the party seeks to challenge the correctness of a conviction without seeking to directly set it aside: see Toronto(City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77.

[4] In our view, C.U.P.E. governs this appeal. The respondent is seeking to revisit his many HTA convictions by in essence challenging the factual basis underlying the convictions. He cannot do this: see C.U.P.E. at para. 34.

[5] This ground is sufficient to dispose of the appeal. The appeal is allowed. The decision of the Divisional Court is set aside and the decision of Deputy Judge Mungovan of the Small Claims Court is restored.

[6] Costs to the appellants fixed at $2500 inclusive of disbursements and GST.