- DATE: 20020408 DOCKET: C36512
COURT OF APPEAL FOR ONTARIO
RE:
1153238 ONTARIO LTD., MATTHEW MELCHIOR, RANDALL MELCHIOR (Applicants/Respondents) v. JAMES DURBANO, 842617 ONTARIO LTD., DURLAN CONSTRUCTION LTD., ARCH-BAN DEVELOPMENTS LTD., BRYCARE DEVELOPMENTS LTD., R.J.D. ONTARIO CORP., V.P.A.D. DEVELOPMENT LTD., CHERRY HILL LAND HOLDINGS LTD., CHERRY HILL GP LTD. (Respondents/Appellants)
BEFORE:
DOHERTY, GOUDGE and ARMSTRONG JJ.A.
COUNSEL:
R.P. Quance
for the appellants
W.J. Burden
for the respondents
HEARD:
March 28, 2002
RELEASED ORALLY:
March 28, 2002
On appeal from the order of Justice S.E. Greer dated May 15, 2000.
E N D O R S E M E N T
[1] The respondents brought an oppression application. The appellants (Mr. Durbano) brought a cross-application. On a motion Greer J. struck the cross-application holding that it sought relief that was or could have been sought in an earlier action commenced by Mr. Durbano. That action had been dismissed on consent.
[2] Events subsequent to the hearing before Greer J. have narrowed the appeal. Counsel for the appellants seek to resurrect two of the claims advanced in the cross-application struck by Greer J. They are:
(e) an accounting with respect to the funds received by and extended by the respondents, Cherry Hill Land Holdings, Cherry Hill GP, and any other entity directly associated with the business enterprise of the foregoing;
(f) an Order compensating the applicants with respect to the oppressive and unfair actions of the respondents and with respect to the failure of the respondents to comply with the agreements reached between the parties;
The Accounting Claim
[3] In the statement of claim that had been previously dismissed on consent, Mr. Durbano sought the following:
(h) An accounting with respect to all monies advanced by the plaintiffs and all further necessary or appropriate inquiries and directions;
(i) An accounting with respect to all monies expended in the enterprise hereinbelow described and all further necessary or appropriate inquiries and directions.
[4] The statement of claim sought an accounting in the widest terms of all matters connected to the enterprise. The relief sought in the statement of claim encompassed the accounting sought in the cross-application brought by Mr. Durbano.
The Oppression Claim
[5] In the original action Mr. Durbano sought damages from the respondents for their conduct in relation to the operation of the enterprise and not merely for activity relating to the making of the original agreement. Indeed, the statement of claim alleged that the respondents’ conduct was oppressive. The same claim was advanced under a different name in the cross-application.
[6] In our view, the motion judge was correct in finding that the claims were barred on the basis of res judicata. The appeal is, therefore, dismissed with costs fixed at $7,500.
“Doherty J.A.”
“G.T. Goudge J.A.”
“Robert P. Armstrong J.A.”