COURT OF APPEAL FOR ONTARIO
Moldaver, Feldman and Simmons JJ.A.
BETWEEN:
David Osmun and Metro (Windsor) Enterprises Inc.
Plaintiffs (Respondents)
and
Cadbury Adams Canada Inc., and Itwal Limited The Hershey Company, Hershey Canada Inc., Nestle Canada Inc., Mars, Incorporated, Mars Canada Inc
Defendants (Appellants)
J. Scott Maidment and Adrienne Boudreau, for the appellants The Hershey Company And Hershey Canada, Inc.
Davit D. Akman, for the appellants Mars Canada Inc. and Mars, Incorporated
Robert E. Kwinter, for the appellant Nestle Canada Inc.
William V. Sasso, for the respondents David Osmun and Metro (Windsor) Enterprises Inc.
Donald Houston, for the respondent Itwal Limited
Christopher P. Naudie and Jean-Marc Leclerc, for the respondent Cadbury Adams Canada Inc.
Heard and endorsed: December 7, 2010
On appeal from the judgment of Justice George Strathy of the Superior Court of Justice, dated May 5, 2010.
APPEAL BOOK ENDORSEMENT
[1]
Analysis
We are in substantial agreement with the reasons of Strathy J.
2On appeal, the appellants’ primary argument is that Strathy J. did not have jurisdiction under ss. 12 and 13 of the Class Proceedings Act to make the impugned bar order. We disagree.
3The appellants maintain they have right of contribution and indemnity. Assuming they are correct, the plaintiff is required under the order to limit its claim against the non-settling defendants in accordance with Cadbury’s degree of proportionate liability as established at trial. In such circumstances, the bar order is made in accordance with the principles set out in ONHWP v. Chevron (1999), 1999 CanLII 15098 (ON SC), 46 O.R. (3d) 130. As the motion judge observed, if the appellants do not have the right of contribution and indemnity, then the bar order does not interfere with their substantive rights.
[4]
Disposition
Accordingly, the appeal is dismissed.
[5]
Costs
Costs to the plaintiff fixed at $15,000 inclusive of applicable taxes and disbursements.
6Costs to Cadbury fixed at $4,000 inclusive of applicable taxes and disbursements.
7Costs to Itwal fixed at $1,000 inclusive of applicable taxes and disbursements.
