Court File and Parties

COURT FILE NO.: 465/05

DATE: 20060201

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

RE: MURIELLE FORGET v. DR. NORMAN SUTHERLAND

BEFORE: Justice Farley

COUNSEL: John Kelly and Jeanette Watson, for the Plaintiff

Ronald D. Manes, for the Defendant

HEARD: February 1, 2006

ENDORSEMENT

FARLEY J.

[1] The defendant sought leave to appeal the decision of Pepall J. of November 8, 2005 striking the defendant’s jury notice. The defendant submitted that leave should be granted pursuant to either the (a) or the (b) test of R. 62.02(4). Both the (a) and the (b) tests need to be satisfied conjunctively under either test as to the 2 prongs of each test.

[2] Pepall J. determined that the pith and substance of this litigation was: “The essence of this dispute revolves around whether the Minutes of Settlement should be enforced or set aside because they were obtained by fraud and undue influence and they were unconscionable.” The defendant disputes that characterization at para. 32 of his factum:

32. While the Plaintiff suggests that the action can be categorized as one of specific performance the statement of claim does not seek this remedy in the prayer for relief. The pith and substance of the Plaintiff’s claim is not specific performance but damages for breach of contract.

While I note the defendant objects to certain elements being taken out of context in a pith and substance analysis, it seems to me that Pepall J. was merely observing that in the context of the circumstances prevailing that what was truly being requested (perhaps awkwardly so) was specific performance in that by the date of the Statement of Claim all of the $444,000 was owing ($436,000 on Jan. 7, 1997 and the $8,000 in the 2 months before that date – none of which were paid), given that the Minutes of Settlement provided that those payments were required to be made unless the plaintiff breached the confidentiality agreement, as to which there was no allegation by the defendant that she did. The “mirror image” of this aspect of specific performance is observed by the defendant’s claim for rescission of the Minutes of Settlement, which would result in a voiding of that agreement and the return of the $56,000 previously paid the plaintiff by the defendant. If the plaintiff’s claim is successful, then it would seem that the defendant’s counterclaim would necessarily have to be dismissed. It also seems to me that even if Pepall J. were incorrect as to any one of the three items of s. 108(2) – i.e. .8, .10 or .11 that the plaintiff would still have a basis for her motion to strike the jury notice as all of those items had not been shown to be inapplicable. I further note that the defendant acknowledged that public policy concerns were not within the jurisdiction of the jury. See also Snell on equity at p. 233: “Courts of equity set aside as unconscionable not only transactions where one of the parties needed protection but also transactions which were a fraud on third parties or upon the public generally.” In the end result I am not satisfied that Pepall J.’s decision/order is open to very serious debate (not serious debate as suggested in the defendant’s factum). See Ash v. Lloyd’s Corp., [1992] 2 O.R. (3d) 282 (Gen. Div.). Therefore even if I were to accept the characterization of the dispute here as being as to matters of general importance (recognizing that a right to trial by jury is a substantive right – but one which may be denied for cogent and substantial reasons: see Doe v. Bragg, [2005] O.J. No. 3932 (S.C.J.) at para. 5 – and s. 108(2) of the Courts of Justice Act would be such a cogent and substantial reason) as opposed to matters of particular relevance to the litigants in question, leave should not be granted on the (b) test given that the first prong of that test has not been met.

[3] What then of the (a) test? I am not convinced that there are “conflicting decisions” in the context of R. 62.02(4)(a) advanced by the defendant. The defendant asserted that Pepall J. did not correctly apply a pith and substance analysis. As indicated above I disagree with respect. Further it would not appear to be premature to strike the jury notice when Pepall J. found that s. 108(2) came into play.

[4] As for the second group of (a), the defendant noted at para. 63 of his factum:

63. It is respectfully submitted that, having regard to the importance of the issues raised in the proposed appeal and the lack of appellate authority on the interpretation of s.108 it is desirable that leave to appeal be granted.

With respect, this does not seem to advance the discussion and is a conclusory observation.

[5] Leave to appeal is dismissed. While counsel on both sides sincerely pressed home to the court the positions of their clients very ably, it appears that in the preparation of their factums there was, as regards to each factum, considerable unnecessary digressions/creation of atmosphere. I am therefore satisfied that defendant’s counsel’s suggestion of $4,000 costs is the appropriate level. Defendant is to pay $4,000 costs to the plaintiff forthwith and in no event later than March 6, 2006.

J.M. FARLEY

DATE: February 1, 2006