DATE: 20050314

DOCKET: C42515

COURT OF APPEAL FOR ONTARIO

RE:

1029822 ONTARIO INC. c.o.b. as HAWKINS PETROL (Plaintiff/Appellant) – and – GORDON J. SMITH (Defendant/ Respondent)

BEFORE:

McMURTRY C.J.O., ARMSTRONG and LANG JJ.A.

COUNSEL:

John R. Read

for the appellant

Peter S. Mirsky

for the respondent

HEARD & RELEASED ORALLY:

March 7, 2005

On appeal from the order of Justice Denis J. Power of the Superior Court of Justice dated September 10, 2004.

E N D O R S E M E N T

[1] This is an appeal from Justice Power’s dismissal of this Superior Court action. That dismissal determined that this action was an abuse of process because it raised the same lis that had already been determined in an earlier Small Claims Court action.

[2] In the Small Claims Court action, the appellant swore that the issues in the two separate actions “dealt with the exact same issues”. In the Superior Court action, the appellant swore that his earlier statement was in error and that the two actions, while involving the same parties and some of the same facts, raised different legal issues. From these contradictory statements, it would appear that, when it is in his interest to do so, the appellant is prepared to swear, to put it charitably, to “inaccuracies”. This conduct raises significant concerns and clearly concerned the motion judge. The appellant’s conduct was not, however, the question.

[3] Rather the question was the characterization of the issues at law. A review of the separate claims leads to the conclusion that the issues were not identical or even substantially the same. The Small Claims Court action claimed relief, which was subsequently abandoned, with respect to a fuel bill, with respect to an alleged failure to manage a construction contract, and with alleged negligence in failing to file documents with Revenue Canada. The Superior Court action claims $184,757.64 for fraud, breach of contract, or intentional interference with economic relations. The two actions are not identical.

[4] Accordingly, the Superior Court action should not have been dismissed. We would allow the appeal and set aside the dismissal of the Superior Court action.

[5] To a significant extent, the motion before Power J. and this appeal both arise from the appellant’s delivery of an inaccurate affidavit. The appellant conceded that this conduct may be reflected in our disposition of costs. In the circumstances, we would not interfere with the trial judge’s award of costs in favour of the respondent. Further, we would award costs of the appeal in the amount of $5,000 to the respondent, inclusive of disbursements and GST.

“Roy McMurtry C.J.O.”

“Robert P. Armstrong J.A.”

“Susan E. Lang J.A.”