Court of Appeal for Ontario

Citation: Mpampas v. Schwartz, Levitsky Feldman Inc., 2008 ONCA 581 Date: 2008-08-12 Docket: C47722

Between:

John Mpampas Plaintiff (Appellant)

and

Schwartz, Levitsky Feldman Inc., Canada Customs and Revenue Agency, Richard Kline, Alan Page, Dario Gritti and Ross Barrie Defendants (Respondents)

Before: Rosenberg, Gillese and Blair JJ.A.

Counsel: Julian Binavince for the appellant Craig Hill and Brendan Y.B. Wong for the respondents

Heard: August 11, 2008

On appeal from the order of Justice Keith A. Hoilett of the Superior Court of Justice dated August 14, 2007.

APPEAL BOOK ENDORSEMENT

[1] There is a long history of disagreement between Mr. Mpampas and Schwartz, Levitsky Feldman Inc. (SFL) arising out their retainer to act as trustee in relation to an abortive proposal in bankruptcy of his company, World Class Bakers Corporation ("WCB"). Mr. Mpampas was a shareholder, secured creditor and unsecured creditor.

[2] A bankruptcy of WCB ultimately ensued and losses were incurred. Mr. Mpampas sued SLF and the two members of that firm involved with his case, Mr. Kline and Mr. Page, as well as CCRA and two of its employees. After a case conference, Mr. Mpampas moved for "leave to continue the within action against [SLF, Kline and Page]." Registrar Nettie dismissed the motion and no appeal was taken from that order. The Registrar recognized that there may have been some claims that required leave under s. 215 of the BIA and some that did not, but he concluded that he was not able to – and that it was not his job to – "pause the multitude of claims in the statement of claim as to which ones require leave and which ones do not."

[3] Instead of appealing that order, Mr. Mpampas issued a new Fresh as Amended Statement of Claim. In the order under appeal before us, Justice Hoilett struck the new claim on res judicata and abuse of process grounds. He concluded that "the original and amended statements of claim, once stripped of the nomenclature of claims asserted are one and the same."

[4] We agree that the claim is properly struck on abuse of process grounds for that reason. Both before the Registrar and Justice Hoilett, Mr. Mpampas studiously avoided attempting to separate and clarify which claims required leave and which did not. Mr. Binavince suggested some that did not require leave here – e.g. assault and intentional infliction of emotional harm – but a reading of the Statement of Claim indicates that to the extent such claims are raised they are incidental to the main complaint. In any event, the appropriate avenue for relief for Mr. Mpampas was to appeal the Registrar's order, not simply to start over again, attempting to craft a new claim on a different legal theory based on the same set of facts.

[5] Abuse of process is a doctrine enabling the court to prevent the misuse of its procedure. As Goudge J.A. reaffirmed in Toronto v. CUPE, the doctrine may be applied "when litigation before the court is found to be in essence on attempt to relitigate a claim which the court has already determined."

[6] That is the case here. Having chosen not to appeal Registrar Nettie's order, Mr. Mpampas must abide by it in the circumstances.

[7] Accordingly, the appeal is dismissed.

[8] Costs to the respondent, fixed in the amount of $12,493.88 all inclusive.