DATE: 20020211 DOCKET: C34706
COURT OF APPEAL FOR ONTARIO
RE:
M. TUCCI CONSTRUCTION LTD. (Plaintiff/Respondent) -and- MICHAEL LOCKWOOD, ROSEMARY LOCKWOOD and JOHN GROSCKI (Defendants/Appellant)
BEFORE:
ROSENBERG, FELDMAN AND SHARPE JJ.A.
COUNSEL:
Barry S. Wortzman, Q.C.
for the appellant John Groscki
William Kelly
for the respondent
HEARD:
February 6, 2002
RELEASED ORALLY:
February 6, 2002
On appeal from the judgment of Justice J. Stephen O'Neill dated June 29, 2000.
E N D O R S E M E N T
[1] In our view, cause of action estoppel did not apply in this case because the same cause of action was not determined in the earlier proceedings by a court of competent jurisdiction. The earlier small claims court action was resolved in a settlement; there was no determination by a court and there were no releases. That is sufficient to dispose of this ground of appeal. However, it may well be that these were, in any event, separate causes of action and so the respondent was not required to assert his complaint with a counterclaim, especially since the counterclaim would have exceeded the monetary jurisdiction of the small claims court and could only be moved to the Superior Court of Justice with the appellant’s consent.
[2] Accordingly the appeal is dismissed with costs.
Signed by "Rosenberg J.A."
Signed by "Feldman J.A."
Signed by "Sharpe J.A."