Court File and Parties
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MEEHAN, FERRIER AND PITT JJ.
B E T W E E N:
MONIKA AUGUSTINE, FRANK AUGUSTINE, and ALLAN AUGUSTINE, personally and as Trustees of the Estate of Lorne Augustine, deceased, and as Trustees of the Estate of Erma Augustine, deceased, and AUGUSTINE’S DAIRY INC.
Plaintiffs (Respondents)
- and -
INCO LIMITED
Defendant (Appellant)
Counsel: Linda C. McCaffrey, Q.C., for the Plaintiffs David S. Morritt and Randall Stephenson, for the Defendant
HEARD: October 26, 2004
Oral Reasons for Judgment
MEEHAN J.: (Orally)
1This is an appeal from a decision of the Honourable Mr. Justice Matlow, dated November 19, 2003. Leave was granted by Mr. Justice Spiegel, dated February 16, 2004. Mr. Justice Matlow set aside the order of Master Haberman, dated September 4, 2003. Master Haberman struck out with Leave to Amend the respondent’s three affidavits in reply to the plaintiff’s motion for judgment.
2The motion for judgment of the defendant Inco was based on three issues:
(a) a statutory authority which allowed it to emit certain emissions;
(b) the Limitations Act; and
(c) accord and satisfaction.
3The original affidavit of documents of the parties were exchanged in 1995. The respondent/plaintiffs chose to rebut each item of Dr. Conard’s affidavit. Dr. Conard was a witness whose affidavits were filed on behalf of Inco on the motion for judgment. Much of the respondent’s evidence was led by attaching reports to the affidavits filed on behalf of the respondents as exhibits. In retrospect it might have been better to ignore certain irrelevant evidence in Inco’s material since the respondent’s material became voluminous when they attempted to reply to the material of Inco.
4Mr. Justice Matlow’s reasons, while brief, indicated that the affidavits material filed on behalf of the plaintiff/respondents was not clearly in violation of the rules. In dealing with the matter of preliminary editing, if you like, of the material in a matter like this, he preferred the approach taken by Propco Holdings Ontario, noted as 876502 Ontario Inc. et al. v. I.F. Propco Holdings (Ontario) 10 Limited (1997), 37 O.R. (3d) 70, a decision of Dambrot J., which indicated that ordinarily a Master should not review in advance affidavits filed on a motion which would be argued before another judicial officer.
5The matter at issue in this particular action is not uncomplicated and in the circumstances, we are unable to say that Mr. Justice Matlow was clearly wrong in preferring that the judge dealing with the motion would deal with the issue of defects in the parties’ affidavit material at the hearing of that motion. In the circumstances, the appeal is dismissed.
6Counsel have agreed that we fix the costs of the previous proceedings which were the Master’s motion, the appeal before Matlow J., the leave application before Spiegel J., and the proceeding before us. We are dealing with this matter on a partial indemnity basis and we are keeping in mind that while it is an important matter, it is still at this point just the reconciliation of an interim proceeding. We attempt to fix an amount on a partial indemnity basis that is fair and equitable and it is our feeling that for the total of all proceedings to-date, the plaintiff should receive the sum of $45,000.00, including disbursements and GST. The record indicates that costs to the plaintiff fixed at $45,000.00 on a partial indemnity basis. The appeal is dismissed.
MEEHAN J.
FERRIER J.
PITT J.
Date of Reasons for Judgment: October 26, 2004
Date of Release: November 2, 2004
COURT FILE NO.: 731/03
DATE: 20041026
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MEEHAN, FERRIER AND PITT JJ.
B E T W E E N:
MONIKA AUGUSTINE, FRANK AUGUSTINE, and ALLAN AUGUSTINE, personally and as Trustees of the Estate of Lorne Augustine, deceased, and as Trustees of the Estate of Erma Augustine, deceased, and AUGUSTINE’S DAIRY INC.
Plaintiffs (Respondents)
- and -
INCO LIMITED
Defendant (Appellant)
ORAL REASONS FOR JUDGMENT
MEEHAN J.
Date of Reasons for Judgment: October 26, 2004
Date of Release: November 2, 2004