Court of Appeal for Ontario

CITATION: Pagourov v. Cox, 2009 ONCA 125

DATE: 20090209

DOCKET: C49013

Laskin, Feldman and Cronk JJ.A.

BETWEEN

Dimitre Pagourov

Plaintiff (Appellant)

and

John Cox, David Broadley and John Mendler, in all their capacities including personal, Science Applications International Corporation (SAIC Canada), Employer, Exploranium G.S. Ltd., Former Employer, acquired by SAIC, Workplace Safety and Insurance Board

Defendants (Respondents)

Dimitre Ivanov Pagourov, acting in person

David A. Stamp and Lawren Murray, for the respondents

Heard and released orally: February 3, 2009

On appeal from the order of Justice Peter Daley of the Superior Court of Justice dated May 22, 2008.

ENDORSEMENT

[1] Mr. Pagourov’s main point is that under s. 31 of the Workplace Safety and Insurance Act only the Appeals Tribunal, not the court, can determine whether his right to maintain a lawsuit can be taken away. He contends that this issue was not dealt with by Baltman J. on the original rule 21 motion and, therefore, he is entitled to relief under r. 59.06 of the Rules of Civil Procedure.

[2] We do not agree that Mr. Pagourov is entitled to relief under r. 59.06. The question whether s. 31 of the Act vests jurisdiction in the Appeals Tribunal alone to determine the right to maintain an action was argued before this court on the appeal from the order of Baltman J. and not decided. However, this court dismissed Mr. Pagourov’s appeal because it upheld the alternate ground for Baltman J.’s decision, abuse of process.

[3] We have no basis under r. 59.06 to set aside our decision affirming the dismissal of Mr. Pagourov’s action for abuse of process. Mr. Pagourov claimed compensation from the Board for his alleged workplace injury. His claim was denied. However, he has a right of appeal under the Act, which he has commenced but not pursued. There is no suggestion that Mr. Pagourov is precluded from reviving that appeal. He cannot circumvent his statutory appeal right by suing in the court. Quite apart from whether s. 31 of the Act ousts this court’s jurisdiction to decide whether he can bring an action – an issue we need not decide – this court retains jurisdiction to stay or dismiss his action for abuse of process. That jurisdiction was properly exercised in this case. There is no basis to revisit it.

[4] Finally, we do not agree with Mr. Pagourov’s second point that Baltman J. did not deal with some of his causes of action. All his claims and allegations were before her and adjudicated on by her.

[5] Accordingly, this appeal is dismissed, with costs fixed at $2,500, inclusive of disbursements and G.S.T.

“John Laskin J.A.”

“K. Feldman J.A.”

“E.A. Cronk J.A.”