Court File and Parties

2010 ONCA 897

DATE: 20101223

DOCKET: C52211

COURT OF APPEAL FOR ONTARIO

Doherty, Armstrong and MacFarland JJ.A.

BETWEEN

Algonquin Regiment Inc. and Stephen J. Sparling

Plaintiffs/Appellants

and

Promotion Resource Group Inc. and Mark Jackson

Defendants/Respondents

Counsel: Darren J. Smith, for the appellants Christina E. Hall, for the respondents

Heard and released orally: December 21, 2010

On appeal from the order of Justice Duncan A. Grace of the Superior Court of Justice dated April 28, 2010.

ENDORSEMENT

[1] The appellant, Stephen J. Sparling, commenced an action against his employer, Promotion Resource Group Inc., to enforce Minutes of Settlement in respect of the termination of his employment. He subsequently commenced a second action in his own name and in the name of his personal corporation against his employer and the principal of his employer, Mark Jackson. The motion judge dismissed the second action as an abuse of process.

[2] The appellants, the plaintiffs in the second action, appeal the dismissal of the action on the primary ground that the motion judge erred in applying the principle of abuse of process.

[3] The appellants submit that the second action was justified on the basis that the defendant, Promotion, in its statement of defence and counterclaim in the first action is, in effect, attempting to repudiate the Minutes of Settlement. We disagree.

[4] The appellants further submit that the sole purpose of the second action is to preserve a limitation period that was about to expire.

[5] There is no question the parties entered into the Minutes of Settlement and a final release. Those documents govern their relationship going forward. The question is whether Sparling breached the terms of the Minutes of Settlement in such a way that Promotion does not have to make the payments called for under the Minutes of Settlement. That question is fully covered by the pleadings in the first action.

[6] The underlying conduct, which gave rise to the Minutes of Settlement and the final release is no longer relevant and to start a second action on the basis of the underlying conduct is, in our view, an abuse of process.

[7] We see no error on the part of the motion judge. The appeal is therefore dismissed. The respondents shall have their costs of the appeal fixed in the amount of $7,000 inclusive of disbursements and applicable taxes.

“Doherty J.A.”

“Armstrong J.A.”

“J. MacFarland J.A.”