DATE: 20040302

DOCKET: C40608

COURT OF APPEAL FOR ONTARIO

RE:

JEAN-PAUL LARABIE (Plaintiff) (Appellant) – and – JOHN-PAUL MONTFILS a.k.a. BROTHER IRENEE, JOHN DOE a.k.a. BROTHER ANSELME, ST. JOSEPH’S TRAINING SCHOOL, LES FRÈRES DES ÉCOLES CHRÉTIENNES D’OTTAWA LTÉE, and THE ROMAN CATHOLIC EPISCOPAL CORPORATION OF OTTAWA (Defendants) (Respondents)

BEFORE:

WEILER, SHARPE and BLAIR JJ.A.

COUNSEL:

Richard R. Marks

for the appellant

Ronald H. Caza for Les Frères des Écoles Chrétiennes D’Ottawa Ltée and

Thomas F. Wallis for The Roman Catholic Episcopal Corporation of Ottawa

HEARD & ENDORSED:

February 27, 2004

On appeal from the order of Justice Jean A. Forget of the Superior Court of Justice dated August 22, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] The discretion to dismiss an action on the basis of abuse of process must be exercised with a view to ensuring that justice is done. Larabie’s Statement of Claim clearly establishes the factual context of a valid claim, a claim that has never been considered on a substantive basis. In responding to the motion there was some medical and eye witness evidence put forward to support the claim. The motions judge was of the opinion that commencing a new action against the individual plaintiffs after the court had refused to amend the claim to name these two persons in a prior action flew in the face of the prior decisions of the court and constituted an abuse of process. In the circumstances of this case, that conclusion was an error in principle. The prior decisions stemmed from the dismissal of a motion to amend the statement of claim. This was a purely procedural decision that expressly declined to deal with the merits of the appellant’s claim. Much could have been avoided had that decision been appealed because thereafter the proceedings focused on subsidiary procedural issues.

[2] In the matter under appeal, the motion judge, in the exercise of his discretion did not answer the question whether, if the claim were dismissed, it would result in injustice to the appellant because he would be deprived of his day in court on the merits of his claim. Instead, he appears to have been of the opinion that all that would take place would be to relitigate an issue that had already been decided as though the appellant had already had his day in court.

[3] Accordingly the appeal is allowed, the decision of Forget J. is set aside and the action is allowed to proceed. The costs of this appeal and of the motion reserved to the panel are fixed at $6500 all in and are to be set-off against the outstanding costs orders.