COURT OF APPEAL FOR ONTARIO

DATE: 20001204

DOCKET: C33551

RE: BARRY ISEMAN and 918888 ONTARIO LIMITED o/a WELLAND CLINIC PHARMACY (Plaintiffs/Appellants) v. KIM ALLEN RUTHIG and ONTARIO COLLEGE OF PHARMACISTS (Defendants/Respondents)

BEFORE: OSBORNE A.C.J.O., AUSTIN & LASKIN JJ.A.

COUNSEL: Brian A. Banfield

for the appellant

Michael C. Birley

for the respondent

HEARD: November 28, 2000

On appeal from the judgment of Justice Joseph W. Quinn dated December 28, 1999.

E N D O R S E M E N T

[1] We are not satisfied that the committee’s decision that the proceedings against the appellant Iseman were not unwarranted (a decision that was part of the committee’s disposition of costs) answered the central question whether the investigation and the proceedings against the appellant were undertaken in bad faith. Thus, the first requirement of issue estoppel has not been met. Since the motions judgment determined the respondents’ summary judgment motion on the basis of issue estoppel, his order cannot stand.

[2] The appeal is allowed, the order dismissing the appellants’ action is set aside and the matter is remitted to the motions judge to determine whether, apart from issue estoppel, there is a genuine issue for trial. The appellant are entitled to their costs of this appeal. Costs of the summary judgment motion should be at the discretion of the motions judge who is seized of the matter.

[3] In our view, the proposed fresh evidence, including the evidence that we received today, has no bearing on the legal issues before us. Leave to admit the fresh evidence is, therefore, dismissed.

“C.A. Osborne A.C.J.O.”

“Austin J.A.”

“John Laskin J.A.”s