Court of Appeal for Ontario

Citation: Mintz v. Wallwin, 2009 ONCA 199

Date: 20090304

Docket: C49140

Before: Winkler C.J.O., Goudge and Epstein JJ.A.

Between:

Irwin Mintz, Trustee

Plaintiff (Respondent)

and

Craig Wallwin, Edward Harper, Jeanne Hudlett and Thomas Ambeau

Defendants (Appellants)

Counsel:

Eric O Gionet, for the appellants

David Taub and Carla Lubell, for the respondent Irwin Mintz, Trustee

Heard and released orally: February 12, 2009

On appeal from the order of Justice Ellen MacDonald of the Superior Court of Justice dated June 13, 2008.

ENDORSEMENT

[1] In our view, the motion judge erred in applying Rule 24.05(2) in a manner that, in essence, entitled the respondent to proceed with a second identical action, subject only to paying the costs of the first action that had been dismissed for delay.

[2] The rule does not do this. It provides no right to a plaintiff to commence a second action identical to one that has been dismissed for delay. In this case it does not give the respondent an answer to the appellant’s claim that the respondent’s second action is an abuse of process, a claim that the motion judge did not address.

[3] The respondent concedes that the order dismissing the first action for delay was correct. In our opinion to permit the respondent to proceed with the second action would indeed constitute an abuse of process. In the circumstances before us, it would bring the administration of justice into disrepute to now permit the respondent to proceed with a second, identical action.

[4] The appeal must be allowed. The order sought is granted. Costs of the appeal fixed at $5,500.00. No costs of the motion.

“Winkler C.J.O.”

“S.T. Goudge J.A.”

“G. Epstein J.A.”