Court of Appeal for Ontario
Citation: McLellan v. Martin, 2009 ONCA 657
Date: 2009-09-17
Docket: C48949/M37521
Before: Sharpe, Gillese and LaForme JJ.A.
Between:
Meagan McLellan and Cellex-C International Inc.
Plaintiffs (Appellants)
and
Patricia Fern Martin
Defendant (Respondent in Appeal)
Counsel:
Edward L. Burlew, for the appellants
Stanley Fienberg, for the respondent
Heard: September 16, 2009
On appeal from the judgment of Justice Sandra Chapnik of the Superior Court of Justice dated May 30, 2008.
APPEAL BOOK ENDORSEMENT
[1] We are not persuaded that the motion judge erred by dismissing the action as being frivolous, vexatious and an abuse of process. This was the second action brought by the appellants against the respondent, their former employee, for statements she made as to alleged irregularities in the appellants’ affairs. The first action was settled and the appellants provided the respondent with a broadly worded release. In a prior action against the appellants arising from alleged irregularities disclosed by the respondent, Lax J. found:
Ms Martin was the person who blew the whistle on Robson. There have been two attempts to suborn her testimony. She has been bribed and threatened, but refused to change her testimony and has suffered as a result.
[2] There is now an oppression action against the appellants relating to similar and related allegations of irregularity. The appellants have again sued the respondent Martin for statements she has allegedly made as to their financial affairs.
[3] On this record, even if, as submitted by the appellants, the claim relates to statements made after the date of the settlement and even if the terms of the release do not strictly speaking bar the claim, the motion judge did not err in concluding that this action had been brought for an improper purpose, namely, “to harass her and suborn her testimony in the oppression proceeding.”
[4] Accordingly, the appeal is dismissed. Costs to the respondent fixed at $20,000 inclusive of disbursements and GST.