Court File and Parties
CITATION: Dr. Thomas Dentistry v. Bank of Nova Scotia, 2010 ONSC 5900
DIVISIONAL COURT FILE NO.: 235/10
DATE: 20101025
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, SACHS AND NADEAU JJ.
BETWEEN:
DR. THERESE THOMAS DENTISTRY, PROFESSIONAL CORPORATION and THERESE THOMAS
Plaintiffs
– and –
THE BANK OF NOVA SCOTIA and MUHAMMAD HUSSAIN
Defendants/Appellants
-and –
ANN GRACE THOMAS RAJAN and TORONTO-DOMINION BANK
Third Parties/Respondent
Elissa Sinha, for the Appellants
No One Appearing for the Respondent Ann Grace Thomas Rajan
HEARD at Toronto: October 25, 2010
Oral Reasons for Judgment
SWINTON J. (ORALLY)
[1] This is an appeal from the Order of D.M. Brown J. dated May 11, 2010 treating a paragraph of an affidavit of the respondent Ann Grace Thomas Rajan as a counterclaim for one million dollars against the appellant, the Bank of Nova Scotia.
[2] The Order was made in the course of a motion for summary judgment in which the motions judge had ordered a mini-trial on February 23, 2010. When the matter came on for hearing before him in May 2010, as he was seized, Ms. Rajan, who was self-represented and under treatment for cancer, requested an adjournment. The Bank had brought a motion to strike her new affidavit. The motions judge dismissed that motion but ordered the one paragraph to be treated as a counterclaim.
[3] While leave to appeal was granted, in our view this appeal is premature. It has been brought in the course of the motion for summary judgment and has caused delay by interrupting the mini-trial. The mini-trial is a continuation of the motion for summary judgment. Just as an appeal of a ruling made during the course of a trial should normally await the outcome of the trial, so too, should an appeal of a ruling made in the course of a motion for summary judgment normally be made at the completion of the motion for summary judgment.
[4] What occurred before the motions judge was unusual, but we are not satisfied that the Bank has been seriously prejudiced by the order made regarding the amendment to the pleadings. Ultimately the Bank’s argument is that the amendment should not have been granted because the counterclaim does not disclose a tenable cause of action. This is an argument that can easily be addressed in the motion for summary judgment. If an order is needed to file a Statement of Defence to the counterclaim, such an order can be sought from the motions judge.
[5] Therefore, the appeal is dismissed for prematurity. We would not grant any costs of this appeal or the motion for leave to appeal.
[6] I have endorsed the Appeal Record, “This appeal is dismissed for prematurity for oral reasons given by me. No costs for the appeal or motion for leave to appeal.”
SWINTON J.
SACHS J.
NADEAU J.
Date of Reasons for Judgment: October 25, 2010
Date of Release: October 29, 2010
Appendix
CITATION: Dr. Thomas Dentistry v. Bank of Nova Scotia, 2010 ONSC 5900
DIVISIONAL COURT FILE NO.: 235/10
DATE: 20101025
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, SACHS AND NADEAU JJ.
BETWEEN:
DR. THERESE THOMAS DENTISTRY, PROFESSIONAL CORPORATION and THERESE THOMAS
Plaintiffs
– and –
THE BANK OF NOVA SCOTIA and MUHAMMAD HUSSAIN
Defendants/Appellants
-and –
ANN GRACE THOMAS RAJAN and TORONTO-DOMINION BANK
Third Parties/Respondent
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: October 25, 2010
Date of Release: October 29, 2010