Court File and Parties
COURT FILE NO.: 207/08
DATE: 20090929
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
LARS INGMAR SODERSTROM
Plaintiff
(Appellant)
- and -
HOFFMAN-LA ROCHE LIMITED and BASF CANADA INC.
Defendants
(Respondents)
Counsel:
J. Perry Borden, Q.C., for the Plaintiff (Appellant)
William Vanveen, for the Defendant/Respondent, Hoffman-La Roche Limited
David W. Kent, for the Defendant/Respondent, BASF Canada Inc.
HEARD at Toronto: September 29, 2009
Oral Reasons for Judgment
JANET WILSON J.: (Orally)
[1] The plaintiff/appellant seeks to appeal to a full panel of the Divisional Court from a final decision of Perell J. dated April 9, 2008.
[2] Mr. Borden did not bring an application for leave to appeal. Mr. Borden argues that the Divisional Court has jurisdiction to hear this matter pursuant to its inherent jurisdiction to remedy a “miscarriage of justice”.
[3] The defendants/respondents, Hoffman-La Roche Limited and BASF Canada Inc., seek to quash the proposed appeal for several reasons:
(i) the order that the appellant seeks to appeal is a final order and therefore no appeal lies to the Divisional Court;
(ii) the action which is the subject of the order to be appealed seeks compensatory damages totalling $750,000,000.00, and is therefore an action in excess of $50,000.00, and not within the jurisdiction of the Divisional Court;
(iii) an appeal lies only to the Court of Appeal and the appellant has already exhausted his appeal rights before that Court ; and,
(iv) the appeal and the underlying action are an abuse of process and have been found to be so by several judges. The appeal is devoid of merit, as the claim is res judicata.
[4] I agree with the positions of the defendants/respondents. The motion to quash is granted.
[5] Perell J. dismissed the plaintiff’s action and ordered significant costs payable by both Mr. Borden personally and by the plaintiff. Further, he made an order disallowing any further litigious steps to be taken without leave of the court. Paragraphs 3 and 4 of the order provide:
[3] THIS COURT ORDERS that neither Soderstrom nor Borden shall initiate or commence any proceedings, including (but not limited to) actions, applications, motions or small claims court proceedings, whether within or outside Ontario, against Roche or BASF without prior leave of this Court.
[4] THIS COURT ORDERS that, if Soderstrom or Borden or anyone associated with either of them commences any proceedings without the leave required by paragraph 3 above, Roche or BASF may file a copy of this Order, without proof of service, with the court or tribunal in which the proceeding is commenced, and the proceedings shall thereby be immediately and indefinitely stayed, until further Order of this Court.
[6] This extraordinary relief was granted by Perell, J. for the reasons he outlined succinctly in paragraph 5 of his decision:
[5] As I will explain in more detail below, Mr. Soderstrom’s arguments fail in the sense of being barred or they are fallacious. He has had his day in court; the 2nd Soderstrom Proceeding is an abuse of process, and it shall be dismissed. Further, the Defendants will receive extraordinary relief to protect them from re-litigation and to maintain the integrity of the administration of justice. Further, still [sic] Mr. Borden has caused costs to be incurred without reasonable cause, and he shall be personally liable to pay costs of this motion pursuant to rule 57.05 of the Rules of Civil Procedure.
[7] Mr. Borden and the plaintiff have failed to pay a series of orders for costs, including security for costs. On June 12, 2008, Feldman J.A. required Mr. Borden and the plaintiff to pay the outstanding costs awards, failing which the appeal would be dismissed. As a result of the failure to pay the costs, the appeal from the decision of Perell, J. was dismissed by the Registrar on September 5, 2008.
[8] The Borden-Soderstrom team continued their pursuit and attempted to appeal from the decision of Feldman J.A. Borins J.A. dismissed this request. His reasons dated August 29, 2009 are blunt:
This motion is another example of the abuse of the process of the court by Soderstrom and his counsel, Borden. It is the 8th time that they have brought the respondent and his counsel to Court since the settlement of the class proceeding.
[9] Neither Mr. Borden nor the plaintiff has paid the very significant costs awards outstanding. For this reason alone, this Court should not assume jurisdiction. In any event, this Court does not have jurisdiction to hear an appeal from the decision of Perell J., as it is a final order for a claim in excess of $50,000.00. The plaintiff/appellant has exhausted all remedies before the Court of Appeal, and has been denied leave to appeal to the Supreme Court of Canada.
[10] It was not clear to me what the plaintiff’s motion before this court was for. It was clear to me, however, that it was an abuse of process, and Mr. Borden’s relentless pursuit of a matter which has been settled must stop.
[11] Mr. Borden requests that the matters with respect to the outstanding orders for payment of costs, as well as the conduct of the various proceedings, be reviewed by the Law Society of Upper Canada. Although this Court cannot order such a review, in my view it would be very appropriate and in the interest of justice for the Law Society of Upper Canada to review the various proceedings before the Court and the conduct of Mr. Borden as he had requested.
[12] Costs of this motion are fixed payable by both Mr. Borden personally and by the plaintiff in the amount of $5,000.00 to the respondents, payable forthwith.
JANET WILSON J.
Date of Reasons for Judgment: September 29, 2009
Date of Release: October 2, 2009
COURT FILE NO.: 207/08
DATE: 20090929
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
LARS INGMAR SODERSTROM
Plaintiff
(Appellant)
- and -
HOFFMAN-LA ROCHE LIMITED and BASF CANADA INC.
Defendants
(Respondents)
ORAL REASONS FOR JUDGMENT
JANET WILSON J.
Date of Reasons for Judgment: September 29, 2009
Date of Release: October 2, 2009