CITATION: Joyce Corinne Farrell v. Bell Canada, 2017 ONSC 5436
COURT FILE NO.: CV-16-009
DATE: 20170913
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Joyce Corinne Farell
Plaintiff
– and –
Bell Canada
Defendant
Nicholas Katsepontes, for the Plaintiff
Dalton McGuinty Jr., for the Defendant
HEARD: August 31st, 2017 (Perth)
K.B. PHILLIPS J.
Ruling
[1] This is an appeal of a trial judgment of the Small Claims Court, rendered by McNabb, D.J. on December 14, 2015.
[2] Joyce Farrell owns roughly 12 acres of vacant land in Lanark County. In the summer of 2004, in the process of expanding telephone service in her area, Bell Canada entered onto Ms. Farrell’s property, removed a number of trees and installed some utility poles.
[3] On discovering the apparent trespass and damage to her forest in late 2004, Ms. Farrell protested. After protracted but unsuccessful settlement negotiations, she commenced this action on January 6, 2010.
[4] On October 19, 2010, a settlement was reached: Bell was to pay $18,000.00 and re-locate some of the poles, while Ms. Farrell was to grant Bell an easement over the property in question.
[5] Bell issued Ms. Farrell a cheque for $18,000.00 which she cashed. Thereafter, things went awry as a result of disagreement over precisely to where the poles should be relocated. Ultimately, Ms. Farrell refused to allow Bell the easement that was part of the deal.
[6] Eventually, Bell brought a motion under Rule 49.09. In the result, on July 29, 2014, McNabb D.J. declared that the “settlement” was vacated. He ordered that Ms. Farrell return the $18,000.00 and that the matter could proceed to trial.
[7] Ms. Farrell declined to appeal the July 29, 2014 order. Instead, she elected to follow only the second part of it. Thus, without re-paying the $18,000.00, she took her claim to trial.
[8] Ms. Farrell was entirely unsuccessful at trial. On December 14, 2015, McNabb D.J. found that her action was statute barred due to the Limitations Act, S.O. 2002, c. 24, and dismissed it with costs.
[9] Of course, Ms. Farrell has a right to appeal. Like any right, however, that position must be balanced against other interests.
[10] I find it concerning that Ms. Farrell has never complied with the re-payment part of the July 29, 2014 order. I brought the matter up with counsel in the course of oral submissions. After conferring with his client, counsel for Ms. Farrell informed me that she indeed has $18,000.00 on hand and could therefore repay that sum forthwith. There was no explanation proffered as to why that has not already been done.
[11] Section 134(1)(c) of the Courts of Justice Act, R.S.O. 1990, C. C.43 empowers this court to make any order or decision that is considered just. Moreover, section 106 of the same legislation provides that a court, on its own initiative, may stay any proceeding on such terms as are considered just.
[12] The rule of law requires that court orders be followed. The order made on July 29, 2014 was not a menu of options to be selected from - it was a clear instruction meant to be obeyed. The proper administration of justice is thwarted if a litigant is allowed to pick and choose from among orders of the court as she advances an action through the system. This appeal co-exists with deliberate non-compliance with a court order by the appellant. That co-existence must not be allowed to continue.
[13] I hereby order this appeal stayed until such time as the Plaintiff complies with the July 29, 2014 order. More specifically, there is a stay of proceedings until Joyce Farrell has re-paid to Bell Canada the sum of $18,000.00. If she fails to do so after 30 days, the stay shall be become permanent. In that event, the trial judgment presently under appeal shall be enforceable in the usual way.
[14] If Ms. Farrell re-pays the $18,000.00 to Bell Canada within 30 days, this court will release a decision on her appeal soon thereafter.
The Honourable Mr. Justice Phillips
Date: September 13, 2017
CITATION: Joyce Corinne Farrell v. Bell Canada, 2017 ONSC 5436
COURT FILE NO.: CV-16-009
DATE: 20170913
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Joyce Corinne Farrell, Plaintiff
-and-
Bell Canada, Defendant
BEFORE: The Honourable Mr. Justice Phillips
COUNSEL: Nicholas Katsepontes, Counsel, for the Plaintiff
Dalton McGuinty Jr., Counsel, for the Defendant
RULING
K.B. PHILLIPS J.
Released: September 13, 2017