CITATION: Georgian Windpower Corporation v. Stelco Inc., 2008 ONCA 542

DATE: 20080707

DOCKET: M36416-M36360

COURT OF APPEAL FOR ONTARIO

O’CONNOR A.C.J.O., MOLDAVER and MACFARLAND JJ.A.

BETWEEN:

GEORGIAN WINDPOWER CORPORATION and NANTICOKE 80WP INC.

Plaintiffs (Moving Parties)

and

STELCO INC.

Defendant (Responding Party)

William V. Sasso for the moving parties

Bryan Finlay, Q.C. and Marie-Andrée Vermette for the responding party

Heard and orally released: June 30, 2008

ENDORSEMENT

[1] At the conclusion of argument, we delivered our decision together with short oral reasons. These reasons expand upon the reasons given at that time.

[2] The appellant (plaintiff), Georgian Windpower Corporation (“GWC”), brought an action in which it asserts nine causes of action, one of which was a claim for oppressive conduct under the CBCA. The respondent (defendant), Stelco Inc., moved for an order for security for costs under rule 56 of the Ontario Civil Rules of Practice. GWC contested the motion submitting that the order was barred by s. 242(3) of the CBCA which reads:

A complainant is not required to give security for costs in any application made or action brought or intervened in under this part.

[3] The master ordered security for costs pursuant to rule 56 reasoning that the core of GWC’s action did not relate to the claim for oppressive conduct. GWC appealed the master’s order to the Superior Court. The Superior Court judge, Cusinato J., dismissed the appeal.

[4] GWC now applies for leave to appeal the order of Cusinato J. to this court under s. 249(2) of the CBCA. Stelco moves to quash the application and submits that the proper appeal route is to the Divisional Court with leave.

[5] The motion raises the question as to the correct appeal route from the master’s order awarding Stelco security for costs. There are two possibilities. First, there is the appeal process found in Ontario Civil Rules of Procedure which would normally apply when an order for security for costs made by a master under rule 56 of the Civil Rules. Under the Rules, the first appeal goes to a Superior Court judge and then to the Divisional Court with leave. Stelco argues that this is the proper process in this case.

[6] The second possibility is that found in s. 249(2) of the CBCA which provides that an appeal should come directly from the master to this court with leave. Section 249(2) reads as follows:

249. (2) An appeal lies to the court of appeal of a province from any order other than a final order made by a court of that province under the Act, only with leave of the court of appeal in accordance with the rules applicable to that court.

[7] GWC argues that s. 249(2) governs because the statement of claim includes a cause of action based on the oppression section of the CBCA and also because a central issue of the motion before the master and on the appeal is whether a section of the CBCA – s. 242(3) – operates to preclude Stelco from obtaining an order for security for costs.

[8] We agree with Stelco that the proper appeal route in this case is that set out in the Ontario Rules of Practice. We base our decision on four factors.

[9] First, it is desirable to have one appeal dealing with all of the issues arising from a single order if the circumstances of the case and the applicable rules and statutory provisions permit.

[10] Second, GWC started the appeal process from the master’s order through the Civil Rules process. As a first step, it appealed the order to a Superior Court judge. If one were to accept the argument GWC now makes, it should have applied for leave to appeal the master’s order directly to this court under s. 249(2) of the CBCA; it did not do so. It now seeks to change its chosen course.

[11] Third, this action, as the master found, is at its core not an oppression action under the CBCA. There are nine causes of action in the statement of claim – only one is brought under the CBCA. Moreover, that claim, based on the oppression section of the CBCA, is contingent on success on the other non-CBCA causes of action. To route the appeal through the appeals process for an “oppression” action under s. 249(2) of the CBCA would be as Mr. Finlay, counsel for Stelco, put it: “allowing the tail to wag the dog”.

[12] Finally, there is no prejudice to GWC if it is required to pursue its appeal under the Ontario Civil Rules process. While GWC will be required to obtain leave to appeal to the Divisional Court, it would also be required to obtain leave to appeal to this court under s. 249(2).

[13] Moreover, GWC can make the same arguments in the Divisional Court as it could have made in this court. For example, it can argue as it did in the appeal to the Superior Court judge that the master erred in refusing to apply the prohibition in s. 242(3) of the CBCA to all or part of the security for costs claimed by Stelco.

[14] In the result, the motion is allowed, the appeal is quashed, costs are awarded to the applicant, Stelco and they are fixed in the amount of $4,642.18, inclusive of disbursements and GST.

“D. O’Connor A.C.J.O.”

“M.J. Moldaver J.A”

“J. MacFarland J.A.”