CITATION: Aecon Buildings v. Brampton (City), 2010 ONCA 773
DATE: 20101115
DOCKET: M39270 (C51833)
COURT OF APPEAL FOR ONTARIO
Feldman, Juriansz and LaForme JJ.A.
BETWEEN:
Aecon Buildings, A division of Aecon Construction Group Inc.
Plaintiff (Respondent)
and
The Corporation of the City of Brampton
Defendant (Respondent)
and
Page + Steele Incorporated
Third Party (Respondent)
and
Stephenson Engineering Limited, Swallow Acoustic Consultants Ltd., and Kent Harvey Consultants Ltd.
Fourth Parties (Appellant)
Peter Carey, for the moving party, Aecon Buildings
Glenn W. Ackerley, for the respondent, The Corporation of the City of Brampton
Thomas R. Whitby, for the Third Party, Page + Steele Incorporated
Thomas J. Corbett, for the Fourth Party, Stephenson Engineering Limited
Heard and endorsed: November 9, 2010
APPEAL BOOK ENDORSEMENT
[1] The respondent moved to quash the appeal to this court on the basis that the order of Klowak J., denying a stay of this action as an abuse of process based on a champertous agreement is interlocutory in nature. He says that a champertous agreement is not a substantive defence to an action for negligence or breach of contract and therefore would not have been a defence at trial in any event. Consequently, the order below does not finally decide a substantive issue for trial.
[2] We do not agree. In our view, the issue is whether the decision below finally determines a claim in the proceedings and forecloses further reference to it in the action. That is the case here. The question of whether the action can be stayed as an abuse of process because it is based on a champertous agreement was finally decided by Klowak J. That issue, although not a defence on the merits, is one that could finally determine the result of the action in favour of Stephenson.
[3] The motion to quash is therefore dismissed with costs fixed at $10,000, inclusive of disbursements, plus the applicable taxes.