Court of Appeal for Ontario

Citation: Hester v. Canada, 2008 ONCA 634

Date: 2008-09-17

Docket: C48177

Before: Winkler C.J.O., Lang and MacFarland JJ.A.

Between:

Joe Hester

Plaintiff (Appellant)

and

Her Majesty the Queen in right of Canada, Minister of National Revenue, Minister of Indian Affairs, Commissioner of Customs and Revenue, Bill McCloskey, Robert Frappier, Michael Cox, Winford Smith, Denis Lefebvre, K.M. Burpee, Ken Fox, John Fennelly, Jeanne Flemming, Luisa Guyan, Ruby Howard, Ken McCuaig, Aileen Conway, Pierre Gravelle and Brian Dawe

Defendants (Respondents)

Counsel:

Eric Lay for the appellant

John N. Birch for the defendants

Heard and orally released: September 4, 2008

On appeal from the judgment of Justice Joan L. Lax of the Superior Court of Justice dated December 4, 2007.

ENDORSEMENT

[1] This is an appeal from the order of Lax J. striking without leave to amend certain paragraphs and causes of action in a draft fresh as amended statement of claim. There is no merit to the jurisdiction argument. While the motion was brought pursuant to Rule 26 seeking leave to amend the statement of claim and the motion judge expressed her reasons in language suggestive of a motion to strike, in our view, this is immaterial. The moving party sought their relief by filing a draft fresh as amended statement of claim which contained the proposed amendments. That is to say, in the form of a document already amended.

[2] In the circumstances, we view this as really a distinction without a difference. The language used is immaterial in the circumstances here. Whether leave to amend is refused or the proposed amended paragraphs struck without leave to amend the result is the same. The proposed pleading and causes of action which the motion judge struck are not available to the moving parties. They could not be raised again in any other revised pleading.

[3] As for the other grounds raised, we agree with the motion judge for the reasons she gave and the appeal is dismissed.

[4] The respondents are entitled to their costs of the appeal fixed in the sum of $9,000.00 inclusive of disbursements and G.S.T.

"Winkler C.J.O."

"S. E. Lang J.A."

"J. MacFarland J.A."