Court of Appeal for Ontario

CITATION: Rainbow Concrete Industries Limited v. Anderson, 2012 ONCA 195

DATE: 20120326

DOCKET: C53682

Doherty, Weiler and Cronk JJ.A.

BETWEEN

Rainbow Concrete Industries Limited

Plaintiff (Appellant)

and

Ian Anderson and International Union of Operating Engineers, Local 793

Defendants (Respondents)

Counsel:

Marvin J. Huberman, for the plaintiff (appellant)

Sara Blake and Kristin Smith, for the defendant (respondent), Anderson

Heard: March 13, 2012

On appeal from the order of Justice B.A. Conway of the Superior Court of Justice, dated April 12, 2011.

ENDORSEMENT

[1] This endorsement is further to the endorsement of the court dated October 11, 2011. At that time, the court, after hearing full argument, adjourned the appeal pending the outcome of related proceedings in the Divisional Court.

[2] The Divisional Court released its reasons on the judicial review application on November 28, 2011. The court dismissed the application. A motion for leave to appeal from that decision to this court was dismissed on March 13, 2012.

[3] Having reviewed the reasons of the Divisional Court, we agree with the contention of the respondent, Anderson, that the allegations in the appellant’s pleadings are in substance the same as the allegations advanced and rejected in judicial review proceedings in the Divisional Court. We agree that it would be an abuse of process to allow the re-litigation of those allegations in a second proceeding.

[4] The appeal is dismissed and the judgment below, striking the claim and dismissing the action, is affirmed.

[5] If the parties cannot agree on the costs of the appeal, they may file written submissions of three pages or less. The respondent must file within 30 days of the release of these reasons and the appellant must file within 40 days.

“Doherty J.A.”

“K.M. Weiler J.A.”

“E.A. Cronk J.A.”