CITATION: Belway v. Petro Canada Fuels Inc., 2015 ONSC 675
COURT FILE NO.: 13-1977
DATE: 2015/29/01
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Hartley Belway, Plaintiff/Responding Party
AND
Petro-Canada Fuels Inc. and Canadian General Filters Limited, Defendants/Responding Parties
AND
Dana Canada Inc. Filter Division, Third Party/Moving Party
BEFORE: Aitken, Lederer and Ramsay J.J.
COUNSEL: Karen J. Borovay, for the Responding Party, Hartley Belway
Daniel Fiorita, Joseph Villeneuve, for the Defendant/Responding Party, Petro-Canada Fuels Inc.
Christopher A. Chekan, for the Third Party/Moving Party, Dana Canada Inc., Filter Division
Louise A. James, for the Defendant/Responding Party, Canadian General Filters Limited.
HEARD: January 28, 2015
ENDORSEMENT
Third Party’s Motions
Third Party’s Appeal from the Order of Justice Leroy Quashing the Appeal of the Orders of Master Roger
[1] The Third Party moves under s. 21(5) of the Courts of Justice Act, R.S.O. 1990, c. C43 to set aside the order of Leroy J. who, sitting as a judge of the Divisional Court, quashed the Third Party’s appeal from orders made by Master Roger on October 7, 15, and 21, 2013. Leroy J. quashed the appeal for lack of jurisdiction as he found the orders of Master Roger to be interlocutory. Master Roger had ordered the Third Party to file a complete motion record with all supporting affidavits within a certain timeframe if it wished to bring a motion for the protection of trade secrets. He did not require that any such secrets be revealed in the affidavits; in fact, he made sealing orders regarding materials on the motion to protect the Third Party’s alleged trade secrets. These orders did not finally determine the rights of the Third Party. They were therefore interlocutory in nature. An appeal from an interlocutory order of the Master must be brought before a single judge of the Superior Court of Justice, not a judge of the Divisional Court (Courts of Justice Act, s. 17(a)). Furthermore, the Notice of Appeal was not served within seven days of the making of the orders appealed from, as required under r. 62.01(1) and (2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Leroy J. committed no error in quashing the appeal for these reasons, particularly where the appeal was so totally lacking in merit.
Third Party’s Appeal from the Order of Justice Leroy Regarding the Establishment of a New Timetable for Interlocutory Proceedings
[2] Due to the Third Party’s appeal of the orders of Master Roger to the Divisional Court, a delay of eight months occurred in the proceedings. This rendered moot the timetable properly set out in the orders of Master Roger because most of the time limits had passed prior to Leroy J. hearing the Plaintiff’s motion to quash the appeal on May 15, 2014.
[3] Pursuant to s. 134(1) of the Courts of Justice Act, a court to which an appeal is taken may make any order or decision that ought to or could have been made by the court or tribunal appealed from, and may make any other order or decision that is considered just.
[4] Leroy J. provided cogent reasons why he would not grant a protective order to the Third Party pending trial and why, if the Third Party continued to want such an order, it must pursue a motion in this regard, based on a full evidentiary record, pursuant to the directions of Master Roger, and subject to a revised timeline. As added protection for the Third Party, Leroy J. granted an interim, without prejudice, confidentiality order pending a full hearing before the Master. The order incorporating a revised timeline and the interim order regarding confidentiality were orders which could have been made by the Master and, therefore, were orders that could properly be made by Leroy J. as a judge of the Divisional Court when the appeal was taken to the Divisional Court.
Third Party’s Appeal from the Order of Costs by Leroy J.
[5] The Plaintiff was successful in all respects on his motion before Leroy J. and was entitled to his costs. Leroy J. provided clear, cogent, and compelling reasons in paragraphs 22-25 of his Endorsement dated June 2, 2014 for the costs order he made against the Third Party. No error has been established in this regard.
Third Party’s Motion to Vary the Terms of the Order of Leroy J.
[6] The Third Party asks this court to vary the terms of the order of Leroy J. to include a new provision allowing the Third Party to conduct an examination of Joseph Villeneuve, counsel for the Defendant, Petro-Canada Fuels Inc., under r. 39.03(1) prior to the return of its motion for a protective order. The alleged purpose of such an examination is to cross-examine Mr. Villeneuve as to why he stated in an email to the Third Party’s counsel that the oil filter in question in this litigation was built to “spec” by the Third Party according to the design of the other Defendant, Canadian General Filters, who did not object to the disclosure of design details.
[7] There is no need at this juncture for the Third Party to seek any order to this effect. It should proceed with its motion for a protective order before Master Roger. In the context of those proceedings, it can serve Mr. Villeneuve with a summons to witness under r. 39.03(1) and r. 53. It will then be up to Master Roger to determine whether the summons should be quashed. It is patent that the examination of Mr. Villeneuve would have no probative value. He has already been cross-examined on an affidavit in these proceedings and made it clear at the time that he had no relevant evidence to offer. Pursuing this matter strikes us as an abuse of process, but this is a determination to be left to the Master.
Third Party’s Motion to Delete Portions of Leroy J.’s Endorsement
[8] Following the release of the endorsement of Leroy J. on June 2, 2014, counsel for the Third Party engaged in the improper practice of continuing to argue a matter after the release of a decision, and doing so through writing personally to the judge who rendered the decision, rather than pursuing any necessary and legitimate courses of action as set out in the Courts of Justice Act and the Rules of Civil Procedure. This practice of sending letters or emails to a judge, asking that he or she reconsider or reword a decision, is unprofessional and must be vigorously discouraged by the courts. In this case, counsel for the Third Party tried to rely on the provisions of s. 134(1)(c) of the Courts of Justice Act and r. 59.06 – neither of which had any application whatsoever to the issues raised in his letter.
[9] Leroy J. showed remarkable patience and indulgence in responding to the Third Party’s concerns by way of an Endorsement Addendum released June 18, 2014 that fully dealt with the issues raised by the Third Party. No further comment is warranted on this subject. That the Third Party would bring these issues to a panel of the Divisional Court amounts to an abuse of process.
Conclusion Regarding the Third Party`s Motion
[10] All requests for relief in the Third Party’s Motion are dismissed.
Plaintiff’s Motion
[11] The Plaintiff asks for orders prohibiting the Third Party from bringing further motions without leave. Given the Third Party’s misuse of the court’s process, we find it appropriate to vary Leroy J.’s order by adding directions to facilitate the hearing of the motion in a reasonable and expeditious fashion. To prohibit the Third Party from bringing any further motions in the action would be excessive, but we do find it necessary to order the following:
The Third Party shall not bring any further motions with respect to the procedure for the motion for the protection order without leave of the Master who is to hear that motion;
The Third Party shall perfect the motion for protection of trade secrets by March 28, 2015.
[12] The Plaintiff also asks us to settle the terms of Leroy J.’s order. In our view, r. 59.01(12) requires that to be done by the Registrar or Leroy J. We can see no reason for any party to object to the draft that was submitted to us by counsel for the Plaintiff.
Costs
[13] The Third Party’s motion was totally without merit and was a waste of time for all concerned. It put the other parties in this litigation to significant, and unnecessary, expense, and further delayed this litigation by several months. This is precisely the type of case that calls out for a full indemnity costs award to require the Third Party to assume responsibility for the waste of time and money to which the other parties have been put, and to dissuade the Third Party from continuing to act in the future in a way that amounts to an abuse of process.
[14] Costs are awarded against the Third Party, payable within 30 days, as follows:
$36,160.15 in favour of the Plaintiff;
$10,170.59 in favour of the Defendant, Petro-Canada Fuels Inc.; and
$4,878.00 in favour of the Defendant, Canadian General Filters.
Aitken J.
Lederer J.
Ramsay J.
Date: January 29, 2015
CITATION: Belway v. Petro Canada Fuels Inc., 2015 ONSC 675
COURT FILE NO.: 13-1977
DATE: 2015/29/01
ONTARIO
SUPERIOR COURT OF JUSTICE -DIVISIONAL COURT
RE: Hartley Belway, Plaintiff/Responding Party
AND
Petro-Canada Fuels Inc. and Canadian General Filters Limited, Defendants/Responding Parties
AND
Dana Canada Inc. Filter Division, Third party/Moving Party
BEFORE: Aitken, Lederer and Ramsay J.J.
COUNSEL: Karen J. Borovay, for the Responding Party, Hartley Belway
Daniel Fiorita, Joseph Villeneuve, for the Defendant/Responding Party, Petro-Canada Fuels Inc.
Christopher A. Chekan, for the Third Party/Moving Party, Dana Canada Inc., Filter Division
Louise A. James, for the Defendant/Responding Party, Canadian General Filters Limited.
ENDORSEMENT
Aitken J.
Lederer J.
Ramsay J.
Released: January 29, 2015