DATE: 20060410

DOCKET: C41910

COURT OF APPEAL FOR ONTARIO

RE:

LENARD THOMPSON (Plaintiff (Respondent)) – and - BRUCE STONE (Defendant (Appellant))

BEFORE:

SHARPE, ARMSTRONG and BLAIR JJ.A.

COUNSEL:

Kenneth Alexander

for the appellant

David Potts

for the respondent

HEARD & RELEASED ORALLY:

March 24, 2006

On appeal from the judgment of the Honourable Justice Barry H. Matheson of the Superior Court of Justice, dated March 16, 2004.

E N D O R S E M E N T

[1] The respondent Lenard Thompson sued the appellant Bruce Stone for defamation in respect of remarks made by Stone in the workplace in November 2000. The matter went to trial in the Superior Court in March 2004. The trial judge awarded Mr. Thompson damages in the amount $35,000 and costs of $31,499.01.

[2] On this appeal Mr. Stone raises, for the first time, the jurisdiction of the Superior Court to try this case on the basis that this is a dispute arising out of the workplace, which is governed by the grievance procedure of a collective agreement and ought to be heard by an arbitrator. See Weber v. Ontario Hydro (1995), 125 DLR (4th) 583 (S.C.C.) and Giorno v. Pappas, [1999] O.J. No. 168 (C.A.).

[3] We are satisfied that in the circumstances of this case, the dispute did not fall within the exclusive jurisdiction of an arbitrator and the Superior Court had overlapping or concurrent jurisdiction to try the defamation action.

[4] This is clearly a case where the jurisdictional issue should be raised on a timely basis. Jurisdiction was not raised in the pleadings; it was not raised at trial or in the notice of appeal. It was raised for the first time in the appellant’s factum filed in the court on September 30, 2005.

[5] In Price v. Sonsini, [2002] O.J. No. 2607 (C.A.) this court said at para. 17:

Here the respondent raised no objection to the order for assessment until more then 5 years after it was granted, after he had participated in a lengthy assessment hearing and after he had suffered an adverse result. In my view, the respondent’s failure to raise a timely objection to the procedure used to obtain the order for assessment is fatal… To allow him to nullify the assessment now would be contrary to the law and commonsense.

[6] The appeal is therefore dismissed.

[7] The appellant seeks leave to appeal the costs award. In our view the award of costs is not unreasonable given the offer to settle. We see no error in principle in the exercise of the trial judge’s discretion. Leave to appeal the costs award is granted but the appeal is dismissed.

“R.J. Sharpe J.A.”

“R.P. Armstrong J.A.”

“R.A. Blair J.A.”