COURT OF APPEAL FOR ONTARIO

CITATION: Riopelle v. Trucash Rewards, Inc., 2014 ONCA 786

DATE: 20141106

DOCKET: C58728 and M44197

Doherty, Epstein and Tulloch JJ.A.

BETWEEN

Irvin Riopelle

Plaintiff (Appellant)

and

Trucash Rewards, Inc. Trucash Rewards Limited, DCR Strategies Inc., Diana Fletcher and Huguette Masse

Defendants (Respondents)

S. Tripodi, for the appellant

Berkley D. Sells, for the respondents

Heard and released orally: October 30, 2014

On appeal from the order of Justice James M. Spence of the Superior Court of Justice, dated March 21, 2014.

ENDORSEMENT

The motion

[1] We propose to dismiss the motion brought by the respondents. In our view, it really becomes quite difficult to separate factors to be considered on the motion without getting to the appeal itself. In our view the best way to approach this is to address the appeal on its merits.

The appeal

[2] Having regard to the contents of the 2006 claim, the settlement of that claim and the consequential releases, we have no doubt that the motion judge properly held that the claims advanced in the 2012 claim were res judicata and were therefore properly dismissed or stayed as an abuse of process.

[3] The 2012 claim does seek production of corporate financial statements for years that post-date the settlement of the 2006 claim. However, in our view to the extent that those peripheral claims may be technically outside of res judicata, they should proceed as separate claims apart from the claims that are caught by res judicata.

[4] We agree with the respondents’ submission that it would not be appropriate to allow the appellant to “amend” his way out of the res judicata finding by adding claims that are in fact new claims that post-date the settlement of the 2006 action. If the appellant wishes to pursue claims that post-date the settlement of the 2006 action, he should do so by way of a new statement of claim. We of course make no comment on what impediments, if any, there may be to doing so at this time.

[5] The appeal on the merits is dismissed.

The Cost Appeal

[6] We will grant leave to appeal the costs order, however we would dismiss that appeal as well.

[7] The motion judge gave virtually no insight into the basis for his cost order. He should have. Litigants deserve an explanation for an order made against them beyond a cryptic reference to the “acceptability” of the submissions made by the opposing party. Given the absence of any meaningful reasons, we consider the question of costs de novo.

[8] The respondents made an offer to settle. That is an important consideration on costs. The finding that the claim itself was an abuse of process is also an important consideration. In our view, costs on a substantial indemnity basis were justified.

[9] As to the quantum, we have the respondents’ bill of costs filed with the motion judge. We have received no help from counsel for the appellant as to what if anything can be said against the quantification of the respondents’ costs set out in the bill of costs. Given that state of affairs, we think it appropriate to accept the amounts claimed by the respondents. Consequently, while leave to appeal will be granted on the costs question, we dismiss the appeal from the costs order.

[10] The respondents are entitled to their costs of the appeal. We do not however agree with the quantum suggested by counsel. The appeal itself cannot be regarded as an abuse of process. We have also taken into account the unsuccessful motion brought by the respondents. Bearing those factors in mind and taking into account again the absence of any assistance from counsel for the appellant, we award costs of the appeal to the respondents in the amount of $20,000 inclusive of disbursements and applicable taxes.

[11] We would also make an order dispensing with approval of the order of this court as to form and content.

“Doherty J.A.”

“Gloria Epstein J.A.”

“M. Tulloch J.A.”