Court of Appeal for Ontario

Date: 2019-03-18 Docket: C65281

Feldman, Pepall and Nordheimer JJ.A.

Between

Gary Anthony Bennett Professional Corporation Applicant (Appellant)

and

Triella Corp. Respondent (Respondent)

Counsel

Mark Ross, for the appellant

Edwin Upenieks and Angela Kwok, for the respondent

Heard and Released

Heard and released orally: March 18, 2019

Appeal Information

On appeal from the order of Justice Leonard Ricchetti of the Superior Court of Justice, dated September 19, 2017, with reasons reported at 2017 ONSC 5474, and from the costs order dated October 18, 2017

Reasons for Decision

[1] The applicant brought an application that sought two mandatory orders, and an injunction, essentially designed to allow the applicant to have access to certain data over which the respondent had control. The application eventually led to a consent order that permitted the applicant to have access to its data, if the applicant paid in trust to the respondent's lawyers the amount outstanding for fees due to the respondent on a "without admission of liability" basis. The consent order did not stipulate what was to happen if the payment was not made.

[2] The applicant did not pay the outstanding fees by the time stipulated in the consent order. About six weeks after that date, the respondent brought a motion to dismiss the original application. The application judge granted that relief. He found that the application was "moot".

[3] The appeal is based principally on two contentions. One is that the requirement in the consent order for the payment of the outstanding fees was an "option" available to the applicant, one that the applicant could choose not to avail itself of. The other is that the application judge erred in not permitting the applicant a further opportunity to pay the outstanding amount before dismissing the application.

[4] In our view, nothing turns on whether the payment of the outstanding fees is properly characterized as an option or not. The fact remains that the applicant brought an application for certain relief that it obtained through the consent order but on the condition that the payment interest be made. Notwithstanding that the amount was not paid, it appears that the applicant subsequently achieved the relief that he sought in respect of his data in the application through other sources. There was nothing left to be adjudicated in terms of the relief that was sought. Whether one considers that result as rendering the application moot, or spent, or some other term, the effect was the same. There was nothing left for the court to adjudicate upon.

[5] In those circumstances, the application judge was correct to dismiss the application.

[6] In oral argument, the appellant submitted that there were other outstanding issues to be adjudicated in the application including issues surrounding the appellant's website and passwords related to it. These issues do not appear to have been raised before the application judge nor are they referred to either in the Notice of Appeal or Supplementary Notice of Appeal. We also note that counsel for the respondent advised that it is the first time that he has heard about these issues. For these reasons, we do not make any findings in this regard.

[7] The applicant also challenges the costs award made by the application judge. However, since the substantive appeal is being dismissed, the applicant needs but has not sought leave to appeal the costs award, as is required by s. 133 of the Courts of Justice Act, R.S.O. 1990, c. C.43. Consequently, this court does not have jurisdiction to consider the challenge to the costs award. In any event, we would not see any reason to interfere with the motion judge's exercise of his discretion in this regard.

Conclusion

[8] The appeal is dismissed with costs of $7,500 inclusive of disbursements and HST as agreed payable to the respondent.

"K. Feldman J.A." "S.E. Pepall J.A." "I.V.B. Nordheimer J.A."