ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
SCOTT FRASER
Plaintiff
- and -
HOLMAN EXHIBITS LIMITED, WENDY CUDNEY, DIRK TREFZGER and ANDREW MCKAY
Defendants
Theodore P. Charney and Rachel Hepburn Craig, for the Plaintiff
Lorne Honickman and Pamela Connolly, for the Defendants
HEARD at Toronto: November 21, 2008
bellamy J.: (Orally)
1The motion for leave to appeal the decision of Echlin J. is dismissed.
2First, there is no conflicting decision by another judge or court on this matter. I do not see Machtinger v. HOJ Industries Ltd. 1992 102 (SCC), [1992] 1 S.C.R. 986 as being a conflicting decision.
3Second, I have no reason to doubt the correctness of Echlin J.’s decision. It is true that he does not mention the Employment Standards Act specifically. However, that does not mean he did not consider it in the context of the entire case. I believe he has, in essence, addressed this in paragraph 19 of his decision when he said “it would be wholly inequitable and unreasonable in these circumstances to permit Fraser to receive judgment for a portion of his claim”.
4Further, even if I did doubt the correctness, I still would not grant leave to appeal as this appeal does not raise matters that are of general importance. This decision is essentially a factual one. As Echlin J. said “this case involves exceptional circumstances, not ordinarily found in such cases.” The issue raised in it is no doubt important to the parties, but in my view, because of the exceptional factual circumstances, the issue raised lacks general legal importance and does not transcend the immediate interests of the very specific facts of this case. In the final analysis, it would have very little jurisprudential value.
5With respect to the defendants’ motion for security of costs. I am not prepared to exercise my discretion to do so and that motion is also dismissed. The defendants have not overcome the first hurdle of s.56.01(1)(e) that there is no good reason to believe that Mr. Fraser’s action is frivolous and vexatious, so I do not need to address the second part of that section.
COSTS
6Given the mixed results, I make no order with respect to costs.
BELLAMY J.
Date of Reasons for Judgment: November 21, 2008
Date of Release: November 24, 2008
COURT FILE NO.: 533/08
DATE: 20081121
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
SCOTT FRASER
Plaintiff
- and -
HOLMAN EXHIBITS LIMITED, WENDY CUDNEY, DIRK TREFZGER and ANDREW MCKAY
Defendants
ORAL REASONS FOR JUDGMENT
BELLAMY J.
Date of Reasons for Judgment: November 21, 2008
Date of Release: November 24, 2008