Court of Appeal for Ontario

Citation: Indcondo Building Corporation v. Sloan, 2014 ONCA 201

Date: 20140317

Docket: C57481

Before: MacFarland, Lauwers and Strathy JJ.A.

Between:

Indcondo Building Corporation

Plaintiff (Respondent)

and

Valerie Frances Sloan, David Robin Sloan and Cave Hill Properties Ltd.

Defendants (Appellants)

Counsel:

Philip P. Healey and Vedran Simkic, for the appellants

Trung S. Nguyen, for the respondent

Heard: March 5, 2014

On appeal from the order of Justice David M. Brown of the Superior Court of Justice, dated July 12, 2013.

ENDORSEMENT

[1] The appellants appeal the motion judge’s decision on their motion to amend their Statement of Defence, issue a Third Party claim and discharge certain Certificates of Pending Litigation (CPLs).

[2] We agree with the motion judge’s decision and for the reasons he gave on the first two issues.

Amendments to Statement of Defence

[3] As for that part of his order limiting the appellants’ rights of discovery and production in relation to the “state of mind” amendments he did allow, not only do we agree with his reasons, we note, as he did in paragraph 20 of his reasons, counsel for the appellant agreed that in relation to those amendments, there would be no need for discovery and production.

[4] We agree that the limitation defence now proposed is the same argument made before Morawetz J. which this court rejected in 2010. Paragraph 3 of the reasons of Karakatsanis J.A. (as she then was) make it perfectly clear that the argument advanced in this court today is the very argument this court rejected then.

The Third Party Claim

[5] The solicitor’s negligence plea is irrelevant to the issues raised in this s. 38 proceeding and in the same vein the Third Party Notice was properly declined in relation to the solicitor and to those proposed third parties who were co-defendants along with the appellant, David Robin Sloan in the 1992 action.

The CPLs

[6] The appellants seek to challenge the validity of the CPLs on the ground of non-disclosure. We do not agree with the motion judge that he lacked jurisdiction to consider the motion to discharge the CPLs in view of the order of this court restoring the CPLs following the reversal of the order of Morawetz J. The CPLs were restored by order of this court simply because they had been discharged by that order and this court reversed that decision. Neither the decision of Morawetz J. nor the decision of this court addressed the validity of the CPLs on the ground of non-disclosure. In our view, no court has as yet squarely dealt with the issue. Res judicata therefore does not apply.

[7] This court does not have original jurisdiction and we would not consider this issue as a matter of first instance. In our view, it would be open to the appellants to bring such a motion before the case management judge to be heard in such manner as he may direct, including at trial, in view of the imminent trial date of May 26th, 2014.

[8] In all other respects the appeal is dismissed. Costs to the respondent fixed in the agreed amount of $5000 inclusive of disbursements and HST.

“J. MacFarland J.A.”

“P. Lauwers J.A.”

“G.R. Strathy J.A.”