DATE: 20030414
DOCKET: C39117
COURT OF APPEAL FOR ONTARIO
ROSENBERG, MACPHERSON and SIMMONS JJ.A
B E T W E E N :
JAMEEL MOHAMMED
Jameel Mohammed appellant in person
(Plaintiff/Respondent/Appellant/ Respondent by cross‑appeal)
- and -
THE MUNICIPALITY OF DYSART ET AL Owners of the Evergreen Cemetery, GORDON WOODMAN, MIKE BENNETT, DAN COLLINGS, ROB ADAMS and ONTARIO PROVINCIAL POLICE
John F. Black for the respondents
(Moving Party/ Defendants/Respondents/ Appellants by cross‑appeal)
AND BETWEEN:
JAMEEL MOHAMMED
(Plaintiff/Respondent/Appellant/ Respondent by cross‑appeal)
- and -
THE MUNICIPALITY OF DYSART ET AL Owners of the Evergreen Cemetery, DONNA L. MCCALLUM and LINDA BENSON
(Moving Party/ Defendants/Respondents/Appellants by cross‑appeal)
Heard: April 9, 2003
On appeal from the order of Justice Thomas M. Wood of the Superior Court of Justice dated March 22, 2001.
BY THE COURT:
[1] The appellant, Jameel Mohammed, commenced two actions against the respondent, the Municipality of Dysart.
[2] The first action, commenced in Newmarket, claimed $5,000,000 in damages for the removal of objects Mr. Mohammed placed on his mother’s grave. He also sought a declaration that Orison stones, which have a significance in his religion, be left in place.
[3] In the second action, commenced in Peterborough, Mr. Mohammed sought $10,000,000 in damages in respect of the municipality’s administrative process and decision concerning his request to erect a monument at his mother’s burial site.
[4] The municipality brought motions for summary judgment in both of these actions. Justice Thomas M. Wood granted most, but not all, of the relief sought by the municipality.
[5] Mr. Mohammed appeals several components of the motion judge’s orders. The municipality cross‑appeals in relation to three aspects of the same orders.
A. Mr. Mohammed’s Appeal
[6] The essential thrust of Mr. Mohammed’s appeal is that the motion judge erred by striking out all of the Peterborough action and subparagraph 1(a) of the Newmarket action on the basis of res judicata and abuse of process. The foundation for this holding by the motion judge was a previous decision of the Divisional Court dismissing an application brought by Mr. Mohammed in which he sought various forms of relief against the municipality in relation to the same burial site.
[7] We do not accept Mr. Mohammed’s submissions on this issue. In our view, the motion judge’s statement of the relevant legal principles, in particular res judicata, was sound and his application of the principles to all of the components of the two actions was correct (with one exception, to be dealt with on the cross‑appeal). The Newmarket and Peterborough actions overlapped in many respects with each other and, more importantly, covered virtually all of the same ground as the matters which had been dealt with by the Divisional Court in earlier litigation.
[8] For completeness, we would indicate that we see no error in the motion judge’s exercise of discretion in setting aside the noting in default of the municipality in the Newmarket action.
B. The municipality’s cross‑appeal
[9] The municipality contends that the motion judge erred in not striking out subparagraph 1(k) of the Statement of Claim in the Newmarket action. We agree. This subparagraph, like subparagraph 1(a) which the motion judge struck out, covers the same ground as subparagraph 1(a) of the Statement of Claim in the Peterborough action and the decision of the Divisional Court. The logic of the motion judge’s reasons should have led to subparagraph 1(k) being struck out, either as an abuse of process (improper duplication) or on the basis of res judicata.
[10] In its motion for summary judgment in the Newmarket action, the municipality sought an order striking out the jury notice on the basis that a jury trial is unavailable in an action where declaratory relief or relief against a municipality is sought. The motion judge, in otherwise comprehensive reasons, did not consider this issue. In our view, it is clear that the municipality was entitled to this order: see s. 108(2) 10 and 12 of the Courts of Justice Act.
[11] The municipality contends that the motion judge erred by not ordering that Mr. Mohammed provide security for costs in the Newmarket action. The motion judge did not consider this issue. Based on our review of the record, and bearing in mind that an order of security for costs is a discretionary order, we are not inclined to hold that the motion judge erred by failing to make such an order.
Disposition
[12] Mr. Mohammed’s appeal is dismissed.
[13] The municipality’s appeal with respect to striking out subparagraph 1(k) of the Statement of Claim and the striking of the jury notice in the Newmarket action is allowed. The municipality’s appeal relating to security for costs in the Newmarket action is dismissed.
[14] The municipality has been substantially successful on the appeal and the cross‑appeal and is entitled to its costs on a partial indemnity scale, which we would fix at $8000 inclusive of disbursements and GST.
RELEASED: April 14, 2003 (“MR”)
“M. Rosenberg J.A.”
“J. C. MacPherson J.A.”
“Janet Simmons J.A.”