DATE: 2004-11-09
DOCKET: C39950
COURT OF APPEAL FOR ONTARIO
RE: HUGUETTE COUSINEAU (Appellant) – and – JEAN-CHARLES PERRIER, JC PERRIER ET ASSOC. INC., JACQUES A. CÔTÉ and PAUL F. LALONDE (Respondents)
BEFORE: WEILER, SHARPE and BLAIR JJ.A.
COUNSEL: André Bluteau for the appellant
Peter Annis for Paul F. Lalonde, Elizabeth Quigley for Jacques Côté and Andrew Graham for Jean-Charles Perrier and JC Perrier et Assoc. Inc.
HEARD: October 25, 2004
RELEASED ORALLY: October 25, 2004
On appeal from the order of Justice Carnwath of the Superior Court of Justice dated April 4 2003.
E N D O R S E M E N T
[1] This is an appeal from the order of Carnwath J. dated April 4, 2003 dismissing the appellant’s action on the following grounds:
that the re-amended statement of claim does not meet the requirements of the Rules of Civil Procedure, in that it is verbose and pleaded evidence;
that the re-amended statement of claim attempts to re-litigate matters finally disposed of in an earlier proceeding; and
that the re-amended statement of claim is vexatious and an abuse of the process of the court, particularly, where court orders remain unpaid.
[2] The appellant seeks, both by preliminary motion and as a ground of appeal, to have the affidavits filed by the respondents on the motion below and the factums filed on this appeal struck, and to disqualify counsel from arguing the appeal. The basis for this argument is that the affidavits filed were sworn by associates in the same law firms as counsel appearing on the motion. There is no merit in this argument. The affidavits essentially dealt with facts that were already a matter of record, such as orders and endorsements previously made in these and other related proceedings: see Zesta Engineering Ltd. v. Clouthier, [2000] O.J. 1060 (O.S.C.J.), quoting Rosenberg J. in Plan Insurance Portfolio Co. v. Crown Life Insurance Co. (1989), 1989 4228 (ON SC), 68 O.R. (2d) 271 (H.C.).
[3] We would therefore not give effect to the preliminary motion or to this ground of appeal.
[4] In our view, Carnwath J. was correct in dismissing the action. It is difficult, if not impossible, to extract from the pleading in the statement of claim what the allegations of material fact are that would support the appellant’s claim, apart from what may flow from the issue of the sale of the matrimonial home. To the extent we can comprehend the allegations, it is apparent that the underlying basis for the claims of deceit, negligent and fraudulent misrepresentation, and breach of fiduciary duty, is that the trustee in bankruptcy and its solicitors insisted on proceeding with the sale of the matrimonial home after the husband’s discharge from bankruptcy. The issue of the trustee’s right to proceed with the sale was conclusively determined by the combination of this court’s decision in the appeal from Linhares-De Sousa J. and the failure of Ms. Cousineau to proceed with her appeals from the orders of Justices Manton and Mercier. A discharge from bankruptcy is no bar to the trustee’s continued administration of the bankrupt estate, including the sale of the matrimonial home.
[5] We see no merit in the other grounds appeal. The appeal is therefore dismissed.
[6] The respondents are entitled to their costs of the motion and of the appeal fixed in the following amounts: to the respondents Perrier $7,000, to the respondent Lalonde $5000 and to respondent Côté $4000.
“K.M. Weiler J.A.”
“Robert J. Sharpe J.A.”
“R.A. Blair J.A.”