COURT FILE NO.: 5/05
DATE: 20060303
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
B E T W E E N:
1245094 ONTARIO INC.
Plaintiff
- and -
BANK OF MONTREAL and SPIN PETROCHEMICALS INC.
I. Marks, for the Bank of Montreal
Defendants/Appellant
- and -
ROYAL BANK OF CANADA, ZELLERS INC., ARNOLD MILAN and KHATCHIG ARTINIAN also known as CHRIS ARTINIAN
Third Parties/Respondent
K. Podrebarac, for Zellers Inc.
Heard: December 15, 2005
Archibald J.
[1] This was a motion brought to Divisional Court to appeal the decision of Master Haberman, who struck out certain particulars pertaining to the cause of action in negligence. What was not struck out, however, was the broad claim by the Bank of Montreal against Zellers in negligence.
[2] A careful review of the history of these proceedings and the pleadings leads to the unequivocal conclusion that the denial of leave to amend the negligence particulars in the pleading, while leaving alive the broad claim in negligence, was an interlocutory decision of the Master, as opposed to a final order. If it had been a final order, this case would have raised an interesting point before me concerning the breadth of Rule 26. The issue would have been as follows: does the mandate of a Master to deny leave to amend pleadings because of their untenability also encompass the right to decide novel points of law? In this case, that potential novel point is the alleged duty of care owed by a drawer of a cheque, to a drawee.
[3] The proper appeal route, given the reality that Master Haberman’s decision is interlocutory, is to seek leave from a judge of the Superior Court of Justice to allow for the amendment of the pleading. Under s. 17(a) of the Court of Justice Act, an appeal lies to a single judge of the Superior Court of Justice from an interlocutory decision of a Master.
[4] Both parties are considering whether this motion for leave should be married with a motion to strike, on the basis that the proposed particulars disclose, or do not disclose, a novel point of law.
[5] In any event, the proper appeal route, based upon the Master’s refusal to allow the particulars to be added to the claim, is to a single judge of the Superior Court of Justice, as opposed to Divisional Court.
[6] After extensive argument, it was acknowledged by counsel that the costs of today should be borne by the losing party on the appeal of Master Haberman’s decision.
[7] One minor point was raised whether Mr. Marks could attend and argue this appeal because he had provided a personal affidavit on the motion before Master Haberman.
[8] It was agreed between both parties that the affidavit basically set out the history of some of the pleadings. There were no issues raised in the affidavit that constituted any personal opinion by Mr. Marks. The affidavit was uncontested and non-controversial.
[9] Ms. Podrebarac has agreed that there is no reason to prevent Mr. Marks from arguing the subsequent appeal for leave to amend the pleading.
[10] Both counsel have acknowledged the significance of Rule 4.02 of the Rules of Professional Conduct. Both lawyers concede that sub-section 3 would not be applicable to this case:
A lawyer who is a witness in proceedings shall not appear as advocate in any appeal from the decision in those proceedings.
[11] The matters averted to in the affidavit were neither controversial, nor expressions of opinion, or belief on the part of Mr. Marks.
[12] Counsel have agreed that today’s costs should be fixed in the amount of $3,000.00 for the attendance, and for preparation thrown away on this particular appeal.
Archibald J.
Released: March 3, 2006
COURT FILE NO.: 5/05
DATE: 20060303
BETWEEN:
1245094 ONTARIO INC.
Plaintiff
- and -
BANK OF MONTREAL and SPIN PETROCHEMICALS INC.
Defendants/Appellant
- and -
ROYAL BANK OF CANADA, ZELLERS INC., ARNOLD MILAN and KHATCHIG ARTINIAN also known as CHRIS ARTINIAN
Third Parties/Respondent
JUDGMENT
Archibald J.