Court of Appeal for Ontario

Citation: Goldbrite Trading Co. Ltd. v. Goeyecare Inc., 2016 ONCA 563

Date: 20160711

Docket: C61122

Judges: Sharpe, Juriansz and Roberts JJ.A.

Between:

Goldbrite Trading Co. Ltd.

Plaintiff/Defendant by Counterclaim (Respondent)

and

Goeyecare Inc.

Defendant/Plaintiff by Counterclaim (Appellant)

Counsel:

Marvin J. Huberman, for the appellant

Roger A. Gosbee, for the respondent

Heard and released orally: April 8, 2016

On appeal from the order of Justice Gordon D. Lemon of the Superior Court of Justice, dated September 11, 2015.

Endorsement

[1] In our view, the motion judge was entitled to refuse and to dismiss this action as an abuse of process. It would have been procedurally preferable had the respondent moved to transfer this small claims action to the Superior Court.

[2] While the motion judge may have misapprehended that there had been a consent to transfer the action, on our reading, his decision on abuse of process did not hinge on that fact. He balanced the interests of the parties, found there was no prejudice and concluded that dismissing the claim would bring the administration of justice into disrepute.

[3] In our view, an order dismissing the action would be disproportionate to the procedural irregularity that occurred in this case.

[4] Accordingly, the appeal is dismissed.

[5] Costs to the respondent fixed at $2500, inclusive of disbursements and applicable taxes.

“Robert J. Sharpe J.A.”

“R.G. Juriansz J.A.”

“L.B. Roberts J.A.”