CITATION: Mollinga v. T-Zone Health Inc., 2016 ONSC 492
DIVISIONAL COURT FILE NO.: 108/15 DATE: 20160119
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, STEWART AND PATTILLO JJ.
BETWEEN:
YVONNE MOLLINGA
Plaintiff
(Appellant)
– and –
T-ZONE HEALTH INC.
Defendant
(Respondent)
Lara Di Genova, for the Plaintiff (Appellant)
Adam Jarvis, for the Respondent
HEARD at Toronto: January 19, 2016
Oral Reasons for Judgment
PATTILLO J. (ORALLY)
[1] This is an appeal by the plaintiff of an interlocutory order of Whitaker J. dated February 11, 2015 ordering that the action be consolidated with the respondent’s action and that the appellant pay costs of $8,000.
[2] The matter involves two competing actions in a franchise dispute between the respondent (franchisor) and the appellant (franchisee).
[3] The first action was commenced by the respondent in Small Claims Court in Burlington in August, 2013. The appellant filed a defence to the action and a counter-claim. That action has subsequently been transferred to the Superior Court. The second action, this action, was commenced by the appellant by Notice of Action in May, 2014 and a Statement of Claim was delivered in June, 2014. The claims are not identical but substantially similar and deal with the issues between the franchisor and the franchisee.
[4] The appellant takes no issue with Whitaker J.’s order consolidating the action with the respondent’s Small Claims Court action.
[5] In any event, we consider that the order to consolidate was appropriate in the circumstances. In granting leave to appeal D.L. Corbett J. referred to an error in principle by Whitaker J. finding that the two proceedings were identical but Whitaker J.’s endorsement is clear that he did not find them to be identical. Rather, he found that the two actions dealt in substance with the same set of issues. We agree. Accordingly, consolidation was appropriate.
[6] That leaves then only the question of Whitaker J.’s cost award and D. L. Corbett J. did not grant leave to appeal costs.
[7] Accordingly, in our view, the appeal must be dismissed.
SACHS J.
COSTS
[8] I have endorsed the Appeal Book, “This appeal is dismissed for reasons given orally by Pattillo J. The respondent is entitled to its costs of the leave motion and the appeal, which we fix in the amount of $7,500.00, all inclusive. Were it not for the offers to settle the amount that we would have ordered would have been lower.”
___________________________ PATTILLO J.
SACHS J.
STEWART J.
Date of Reasons for Judgment: January 19, 2016
Date of Release: January 21, 2016
CITATION: Mollinga v. T-Zone Health Inc., 2016 ONSC 492
DIVISIONAL COURT FILE NO.: 108/15 DATE: 20160119
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SACHS, STEWART AND PATTILLO JJ.
BETWEEN:
YVONNE MOLLINGA
Plaintiff
(Appellant)
– and –
T-ZONE HEALTH INC.
Defendant
(Respondent)
ORAL REASONS FOR JUDGMENT
PATTILLO J.
Date of Reasons for Judgment: January 19, 2016
Date of Release: January 21, 2016