Court of Appeal for Ontario
Judges: Sharpe, Juriansz and Roberts JJ.A.
Between:
Goldbrite Trading Co. Ltd.
Plaintiff/Defendant by Counterclaim (Respondent)
and
Goeyecare Inc.
Defendant/Plaintiff by Counterclaim (Appellant)
Counsel:
Marvin J. Huberman, for the appellant
Roger A. Gosbee, for the respondent
Heard and released orally: April 8, 2016
On appeal from the order of Justice Gordon D. Lemon of the Superior Court of Justice, dated September 11, 2015.
Endorsement
1In our view, the motion judge was entitled to refuse and to dismiss this action as an abuse of process. It would have been procedurally preferable had the respondent moved to transfer this small claims action to the Superior Court.
2While the motion judge may have misapprehended that there had been a consent to transfer the action, on our reading, his decision on abuse of process did not hinge on that fact. He balanced the interests of the parties, found there was no prejudice and concluded that dismissing the claim would bring the administration of justice into disrepute.
3In our view, an order dismissing the action would be disproportionate to the procedural irregularity that occurred in this case.
4Accordingly, the appeal is dismissed.
5Costs to the respondent fixed at $2500, inclusive of disbursements and applicable taxes.
“Robert J. Sharpe J.A.”
“R.G. Juriansz J.A.”
“L.B. Roberts J.A.”