Citation and Court Information
CITATION: Turner v. York University, 2011 ONSC 3169
DIVISIONAL COURT FILE NO.: 487/10
DATE: 20110524
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, SWINTON AND LOW JJ.
Parties and Counsel
BETWEEN:
JONATHAN TURNER Plaintiff (Appellant)
– and –
YORK UNIVERSITY Defendant (Respondent)
Counsel:
Henry Juroviesky and Kevin Caspersz, for the Plaintiff (Appellant)
Ronald G. Slaght, Q.C. and Kris Borg-Olivier, for the Defendant (Respondent)
HEARD at Toronto: May 24, 2011
Oral Reasons for Judgment
ASTON J. (orally)
[1] This appeal, like any other, is based on the record of the Court below. We can review the decision of Cullity J. based on the Statement of Claim that he had before him. We cannot review his decision based on the proposed Amended Statement of Claim.
[2] The appellant can only proceed with this appeal based on the Statement of Claim that was before the motions Judge or, alternatively, go back to the motions Court to seek the amendment of the pleading and also bring a fresh motion for certification based on an Amended Statement of Claim.
[3] The appellant has confirmed the intention to seek to amend the Statement of Claim regardless of whatever disposition this Court might make on appeal, an appeal which would be limited to the Statement of Claim before the motions Judge.
[4] Though the defendant does not seem to oppose the amendments to the Statement of Claim now proposed by the appellant, a fresh motion for certification in the Court below is nevertheless required. The Divisional Court is not the proper forum for a decision of first instance on certification, even if we were to assume the amendments to the Statement of Claim.
[5] The proposed Statement of Claim in this case raises new issues on certification related to other aspects of the test under s.5(1) of the Class Proceedings Act and not just the issue of whether it pleads a proper cause of action and satisfies s.5(1)(a). The proposed amendments significantly change the underpinning of the class action claims.
[6] Given the plaintiff’s intention to seek another amendment to the Statement of Claim, regardless of the outcome of the appeal, and the fact that this Court is not in the position to certify a class proceeding on the record in this case, the appeal is essentially moot and is stayed.
[7] The appellant is directed to bring any motions to amend the Statement of Claim and to certify the class proceeding within the next four months. If unsuccessful on the motion to amend the Statement of Claim, the appellant may move to lift the stay of this appeal in order that it may be argued on the basis of the Statement of Claim that was before Cullity J. If no such motion is brought to lift the stay of the appeal within six months of today’s date, the appeal is dismissed.
[Supplementary Submissions]
[8] We have considered the supplementary submissions and will add, to clarify our reasons, that our disposition of this appeal is not intended to express any opinion on whether the appellant has any right to amend the Statement of Claim.
[9] I have endorsed the Appeal Book and Compendium Record, “The appeal is stayed. If the appellant is unsuccessful in amending the Statement of Claim, the appellant may bring a motion to lift the stay of this appeal as provided in the oral reasons given today. If no such motion is brought within six months of today’s date, the appeal is dismissed. Our disposition of this appeal is not intended to express any opinion on whether the appellant has any right to amend the Statement of Claim. The Plaintiff is to pay costs fixed at $5,000.”
ASTON J.
SWINTON J.
LOW J.
Date of Reasons for Judgment: May 24, 2011
Date of Release: May 27, 2011
Additional Information
CITATION: Turner v. York University, 2011 ONSC 3169
DIVISIONAL COURT FILE NO.: 487/10
DATE: 20110524
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, SWINTON AND LOW JJ.
BETWEEN:
JONATHAN TURNER Plaintiff (Appellant)
– and –
YORK UNIVERSITY Defendant (Respondent)
ORAL REASONS FOR JUDGMENT
ASTON J.
Date of Reasons for Judgment: May 24, 2011
Date of Release: May 27, 2011