Court File and Parties
COURT FILE NO.: 101/03 DATE: 20031124
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
DUNNET, FERRIER AND PITT JJ.
B E T W E E N:
ARMANDO DE MARCO, ANTOINETTA DE MARCO and DE MARCO DEVELOPMENTS INC. Plaintiffs (Respondents)
- and -
JOHN MASCITELLI, ANGELO GABRIELE, FILOMENO GABRIELE, JOHN GABRIELE, ROSE MASCITELLI, FRANCES GABRIELE, ROSA GABRIELE, JULIE GABRIELE, 797652 ONTARIO LIMITED, HUMBERSHORE (BOLTON) LIMITED and HUMBERSHORE (BOLTON) LIMITED PARTNERSHIP Defendants (Appellants)
William K. Andrews, Q.C., for the Plaintiffs (Respondents) John L. O’Kane, for the Defendants (Appellants)
HEARD: November 24, 2003
Oral Reasons for Judgment
DUNNET J.: (Orally)
[1] This is an appeal from the decision of Jarvis J. to dismiss the appellant’s motion for summary judgment and other relief sought under Rules 21, 25 and 34.15.
[2] The case began in 1995 and concerns a failed property investment involving related families. On September 10, 2001, LaForme J. dismissed the appellant’s first motion for summary judgment on two grounds: the respondents’ denial of the truth of all of the facts in the Request to Admit was not improper; and there was no delay that gave rise to either a presumed or substantial prejudice to a fair trial. No appeal was taken from this order.
[3] Discoveries were held and on January 9, 2002, the trial was fixed on consent for June 3, 2002. The motion under appeal was brought nine days before trial.
[4] The motion judge ruled that it was determined on the first summary judgment motion that there were triable issues. As a result, that determination was res judicata.
[5] The appellant’s position is that first, there was no evidence before LaForme J. because of his ruling on the sufficiency of the Request to Admit and therefore, it was open to them to bring a second motion for summary judgment. Second, Jarvis J. did not consider any evidence and erred in applying the doctrine of res judicata to the legal and factual issues raised by amendments to the pleadings, the motions brought under Rules 21, 25 and 34.15 and the motion brought under Rule 51 based on admissions obtained on discoveries. Third, the motion judge failed to provide reasons for dismissing the appellants’ motions for the relief requested other than Rule 20.
[6] Contrary to the submissions of appellants’ counsel, Jarvis J. did not determine that Rule 20 permitted only one motion for summary judgment. He proceeded on the assumption that there would be many persuasive arguments available to the appellants on the facts and law in support of a motion for judgment, had he permitted them to be argued. He found that counsel for the appellants chose not to refer LaForme J. to any of the documents before him, but based his motion for summary judgment on an argument that a blanket refusal to admit evidence was ineffective. Thus, the appellants failed to put their best foot forward and the decision is res judicata in the sense that the dismissal established finally that there is a genuine issue for trial.
[7] Given the circumstances of this case, we are of the view that there is no error in the motion judge’s conclusion that the finding of a genuine issue for trial is res judicata. See V.K. Mason Construction Ltd. v. Canadian General Insurance Group Limited, 42 O.R. (3d) 618 (C.A.).
[8] In the motion before Jarvis J., the respondents specifically raised the question whether the appellants were entitled to bring their motion in the face of a fixed trial date of June 3rd, 2002. In his reasons the motion judge was obviously mindful of the point. Rule 48.04(1) was not referred to in the notice of motion and counsel for the respondents concedes that it was not specifically argued. In our view, the effect of the decision is a refusal to grant leave. Although the motion judge did not refer to the additional relief sought in his reasons, the same consideration with respect to leave had to be made. Notwithstanding his failure to provide reasons with respect to the other relief claimed, we can find no error in the exercise of his discretion.
[9] Accordingly, the appeal is dismissed with costs to the respondents fixed at $2,500. Costs with respect to the motion for leave before Cullity J. are fixed at $2,500 and are payable to the respondents.
DUNNET J.
FERRIER J.
PITT J.
Date of Reasons for Judgment: November 24, 2003 Date of Release: December 1, 2003
COURT FILE NO.: 101/03 DATE: 20031124
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
DUNNET, FERRIER AND PITT JJ.
B E T W E E N:
ARMANDO DE MARCO, ANTOINETTA DE MARCO and DE MARCO DEVELOPMENTS INC. Plaintiffs (Respondents)
- and -
JOHN MASCITELLI, ANGELO GABRIELE, FILOMENO GABRIELE, JOHN GABRIELE, ROSE MASCITELLI, FRANCES GABRIELE, ROSA GABRIELE, JULIE GABRIELE, 797652 ONTARIO LIMITED, HUMBERSHORE (BOLTON) LIMITED and HUMBERSHORE (BOLTON) LIMITED PARTNERSHIP Defendants (Appellants)
ORAL REASONS FOR JUDGMENT
DUNNET J.
Date of Reasons for Judgment: November 24, 2003 Date of Release: December 1, 2003