DATE: 20040726
DOCKET: C39444
COURT OF APPEAL FOR ONTARIO
RE: JOHN SUSIN (Plaintiff/Appellant) – and – REGIONAL MUNICIPALITY OF PEEL (Defendant/Respondent)
BEFORE: CATZMAN, GILLESE and LANG JJ.A.
COUNSEL: John Susin
the appellant
in person
Michael Kyne
for the respondent
HEARD: July 23, 2004
RELEASED ORALLY: July 23, 2004
On appeal from the order of Justice Gordon G. Nicholls of the Superior Court of Justice dated December 19, 2002.
E N D O R S E M E N T
[1] The claim that is asserted in this action is the same claim that was asserted in the arbitration in 1984 and in the court action commenced in1989. Both of those proceedings ended when Susin Construction failed to pay costs it was required to pay, but neither proceeding was determined on its merits. The third action, the one now before the court, was commenced in 2002. Nicholls J. dismissed the present action on the ground of expiration of the limitation period and res judicata. In this court, counsel for the respondent’s principal submission in support of the order of Nicholls J. was based on abuse of process.
[2] The most recent Supreme Court of Canada decision to deal with the doctrine of abuse of process is City of Toronto v. C.U.P.E. (2003), 2003 SCC 63, 232 D.L.R. (4th) 385. In that case, Arbour J. said, at para. 37, the doctrine of abuse of process “engages the inherent power of the court to prevent the misuse of its procedure, in a way that would bring the administration of justice into disrepute” and that allowing the litigation to proceed would “violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice.”
[3] In our view, that statement of the doctrine is applicable to the present case. Having regard to the lengthy and frustrating history of the dispute, allowing this litigation to proceed would violate all of the principles to which Arbour J. refers.
[4] Accordingly, the appeal is dismissed with costs, fixed in the amount of $4,000.00, inclusive of disbursements and G.S.T.
Signed: “M.A. Catzman J.A.”
“E.E. Gillese J.A.”
“S.E. Lang J.A.”