COURT OF APPEAL FOR ONTARIO

CITATION: Moncur v. Harris, 2012 ONCA 281

DATE: 20120501

DOCKET: C54478

Feldman, Simmons and Cronk JJ.A.

BETWEEN

David Moncur and Cathy Moncur

Plaintiffs/Respondents

and

Mary Harris, Donald Harris, Gary Geoffrey, Romano Curti, Walter Pastorius, Peter Guthrie, Lou Prantera, Don Revait, Jim Mitchell, James Fleming, Nereo Bagatto, Neil Chadwick, Gerry Stecyk, Edmond Jung, Lori Spencer Fisher and Beach Grove Golf and Country Club Limited

Defendants/Appellants

James K. Ball, for the appellants

Peter Hrastovec, for the respondents

Heard and released orally: April 13, 2012

On appeal from the order of Justice R.C. Gates of the Superior Court of Justice, dated September 27, 2011.

ENDORSEMENT

[1] The appellants, Mary and Donald Harris, challenge the declaratory order granted by the motion judge.

[2] The issue whether the respondent, David Moncur, committed an assault or battery on the appellant Mary Harris is a central issue in the pending lawsuit between the parties. The challenged declaration made by the motion judge effectively determines that the Board of the Beach Grove Golf and Country Club made no finding of assault or battery by Mr. Moncur. Whether or not that is so is an issue to be determined at trial on proper evidence. It cannot, in effect, be taken off the trial table merely on consent of some but not all the parties. Still less can that consent ground jurisdiction in the court to make a declaration concerning a contested factual or legal finding in advance of trial. To hold otherwise would be to sanction, impermissibly, a collateral attack at trial on an existing court order.

[3] For these reasons, the declaration is question cannot stand.

[4] Accordingly, the appeal is allowed and the motion judge’s order dated September 27, 2011 is set aside in its entirety, without prejudice to the right of any of the parties to the Minutes of Settlement to move before the Superior Court of Justice to reinstate paras. 4 and 5 of the order, on such terms as are deemed just.

[5] The appellants, Mary and Donald Harris, are entitled to their costs of this appeal and the motion below, fixed in the total amount of $5,485, inclusive of disbursements and HST.

“K. Feldman J.A.”

“Janet Simmons J.A.”

“E.A. Cronk J.A.”