PSC Foods Ltd. operating as Hanway Restaurant Equipment, Contracting v. Debbie Wong also known as Debbie Miu Kwan Lui Wong and 124361 Ontario Inc. operating as DJ Cafe & Restaurant, 2000 ONCA 16905

Case Summary

The appellant appealed an order dismissing an application on the basis that disputed facts required a trial. The Court of Appeal agreed that the matter could not proceed by way of application, but held that the motion judge should have converted the proceeding into an action under the Rules of Civil Procedure rather than dismissing it without prejudice. The appeal was allowed, the dismissal order was set aside, and directions were given for pleadings and discovery in the converted action. No costs were awarded on the appeal.

DATE: 20001023

DOCKET: C33733

COURT OF APPEAL FOR ONTARIO

RE: PSC FOODS LTD. operating as HANWAY RESTAURANT EQUIPMENT, CONTRACTING (Applicant/Appellant in appeal) v. DEBBIE WONG also known as DEBBIE MIU KWAN LUI WONG and 124361 ONTARIO INC. operating as DJ CAFE & RESTAURANT (Respondents/Respondents in appeal)

BEFORE: OSBORNE A.C.J.O., LABROSSE and DOHERTY JJ.A.

COUNSEL: Ford Wong

for the appellant

James Chow

for the respondents

HEARD: October 19, 2000

On appeal from the judgment of Mr. Justice Paul Lamek dated January 24, 2000.

E N D O R S E M E N T

[1] No quarrel can be taken with Lamek J.’s conclusion that this matter could not proceed by way of application. There were many issues in dispute before him which could be resolved only by way of a trial.

[2] Lamek J. dismissed the application without prejudice to the applicant commencing an action. Pursuant to rule 38.10 and rule 2.01(2), Lamek J. should not have dismissed the application, but should have converted it into an action and made appropriate directions with respect to pleadings and discoveries. The appeal must be allowed to bring the substance of the order made by Lamek J. into compliance with the rules. We would, therefore, allow the appeal, set aside the order of Lamek J. and convert the application to an action with the following directions:

♦ The parties will exchange pleadings. The statement of claim will be due by November 15th, and the statement of defence and any counter-claim will be due by December 1st.

♦ The cross-examinations of the affidavits filed on the application are to be taken as examinations for discovery. Any further discovery is limited to relevant matters raised by the pleadings and not already canvassed in the cross-examinations on the affidavits.

♦ The costs of the application will be left to the discretion of the trial judge.

[3] In view of the result that we have arrived at and the reasons for that result, we are satisfied that this is not an appropriate case for costs on the appeal.

“C.A. Osborne A.C.J.O.”

“J.M. Labrosse J.A.”

“Doherty J.A.”

PSC Foods Ltd. operating as Hanway Restaurant Equipment, Contracting v. Debbie Wong also known as Debbie Miu Kwan Lui Wong and 124361 Ontario Inc. operating as DJ Cafe & Restaurant, 2000 ONCA 16905

Case Summary

COURT OF APPEAL FOR ONTARIO

E N D O R S E M E N T

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