Court File and Parties

COURT FILE NO.: DC-07-00000199-0000

DATE: 20071024

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

RE: GABOR L. ZSOLDOS, Appellant

- and -

MMMC INC. ARCHITECTS, Respondent

BEFORE: HIMEL J.

COUNSEL: Gabor L. Zsoldos, representing himself (appellant) Heather Hall, representing the defendant (respondent)

ENDORSEMENT

HIMEL J.

[1] The appellant appeals the decision of Master Haberman dated June 30, 2006 dismissing, in part, the appellant’s motion for leave to amend his pleadings. The proposed amendments were asserting as a new cause of action “interference with economic relations” and adding three defendants. The plaintiff also appeals the decision regarding costs which was released on August 30, 2006.

FACTUAL BACKGROUND:

[2] On August 23, 2004, the appellant commenced an action for damages relating to his former employment with the respondent MMMC Inc. Architects. Mr. Zsoldos had been employed by the respondent from December 1999 to September 2003. He claimed he had been involved in a motor vehicle accident, that he was driving his car while on MMMC business and that MMMC should be responsible for increased insurance costs. He also claimed damages for wrongful dismissal and for unpaid overtime and punitive, aggravated and exemplary damages.

[3] In his claim, he alleged a conspiracy had existed between the defendant and the Ontario Association of Architects.

[4] The respondent moved for summary judgment which was granted in part by Pitt J. on July 8, 2005. Justice Pitt dismissed the claims for conspiracy, legal costs and increased premiums. He held there were triable issues regarding the claim for damages for wrongful dismissal, unpaid overtime and punitive damages. The appellant appealed and his application for leave to appeal was dismissed by Paisley J. on March 27, 2006, with leave to bring a motion to amend pleadings within ten days.

[5] In April 2006, the appellant sought under Rules 5.04 and 26.01 to add three people from MMMC as defendants and add new claims for loss of reputation and interference with economic relations. The three individuals were Craig Newsome (president of the company), Donald McIntyre (former partner and director) and Gerry Musselman (former partner and director). Master Haberman held that adding a party is a matter in the court’s discretion under Rule 5.04 of the Rules of Civil Procedure. She found that Mr. Zsoldos had not asserted a cause of action against these three defendants and that the claim alleged against Newsome had already been determined by Justice Pitt. She exercised her discretion and dismissed the motion to add the three defendants. She further held that Justice Pitt had already determined that the appellant could not proceed with claims for conspiracy, legal costs and increased insurance premiums. She dismissed the motion to amend by adding claims for damage to reputation and interference with economic relations on the basis of issue estoppel. Master Haberman allowed certain other amendments to the pleadings. On August 23, 2006, she fixed costs at $1,500 payable within 30 days of the appeal or the abandonment of the appeal.

DECISION:

[6] The standard of review on an appeal of the decision of a Master is that the court is to intervene only where there is a palpable and overriding error rendering the decision “clearly wrong”: see Woodheath Developments Ltd. v. Goldman (2003), 56 O.R. (3d) 658 (Ont.Div.Ct.).

[7] With respect to the motion to amend by adding the three defendants, Master Haberman found that the proposed claims against each were untenable in law. The proposed pleadings disclose no reasonable cause of action as against the proposed defendants. As for the motion to amend by adding new causes of action, the Master held that these were simply other ways of claiming conspiracy which had already been determined by Justice Pitt on the summary judgment motion. There is nothing to suggest she was clearly wrong in reaching this conclusion.

[8] A motion to amend pleadings is a matter to be determined under Rule 26.01 by the Judge or the Master. However, in deciding whether to grant the motion, the court is entitled to look at the merits of the amendment to ensure that it is tenable at law: see Daniele et al. v. Johnson (1999), 45 O.R. (3d) 498 (Ont.Div.Ct.); Griffiths v. Canaccord Capital Corp., [2005] O.J. No. 4897 (Ont.Div.Ct.).

[9] It cannot be said that there is any palpable or overriding error made by the Master in this case. There is no basis to interfere with the decision. For these reasons, the appeal of the Master’s decision is dismissed.

[10] As for the appeal against her decision regarding costs, the Master exercised her discretion under Rule 57.01 and section 131 of the Courts of Justice Act and fixed costs of the motion at $1,500 payable by the moving party to the respondent who was the successful party on the motion. Again, there is no error made in her exercise of discretion such that it could be said that she was clearly wrong. The appeal of the costs award is also dismissed.

[11] The responding party on this appeal submitted a costs outline at the conclusion of the argument of this appeal. Having heard the submissions of the parties, I exercise my discretion under Rule 57.01 and section 131 of the Courts of Justice Act and fix costs in the amount of $4,587.15 which includes disbursements and GST. This amount represents a fair and reasonable amount for costs of the attendance before Morawetz J. when the appeal was brought in the wrong court despite the position outlined to the appellant and for fees for the preparation and attendance at this appeal. These costs are fixed on a partial indemnity basis payable by the appellant to the respondent within thirty (30) days.

HIMEL J.

DATE: 20071024