Court of Appeal for Ontario

Date: 2017-04-19 Docket: C62722

Judges: Feldman, Cronk and Miller JJ.A.

Between

Anthony Gyimah Appellant (Plaintiff)

and

Domenic Reda, Ricky Singh and Invis Inc. Respondents (Defendants)

Counsel

Anthony Gyimah, acting in person

Ilan Ishai and Grace M. McKeown, for the respondents

Heard: April 12, 2017

On appeal from: the order of Justice Jamie K. Trimble of the Superior Court of Justice, dated September 1, 2016.

Endorsement

[1] The appellant appeals from the motion judge's order striking his pleading and dismissing his action against the respondents on the grounds that it is frivolous and vexatious and an abuse of process.

[2] The appellant had previously brought an action in the Superior Court in Toronto against the same respondents framed in contract. The appellant had claimed that the respondents had guaranteed a $30,000 short term loan that they had arranged between the appellant and a third party borrower. That action was dismissed by Perell J. on March 30, 2015 on a summary judgment motion brought by the appellant. An appeal from that decision was dismissed by this court on October 20, 2015.

[3] A month after the previous action was dismissed, the appellant brought a new action in the Superior Court in Brampton, arising from the same facts as the previous action, but framed in tort. In this new pleading, the appellant asserts that he made the loan in question as a result of the respondents' misrepresentations, fraud, and deceit. The respondents brought a motion under rule 21.01(3)(d) of the Rules of Civil Procedure to strike the action as an abuse of process, on the basis that the claim is res judicata.

[4] The motion judge found that the appellant's tort action was based on the same facts as the action in contract that had been dismissed, and that the appellant had been aware of those facts prior to the hearing of the summary judgment motion. The motion judge held that it was incumbent on the appellant to include in his original pleading all causes of action arising out of the same transaction and events, and the second action therefore constituted an abuse of process. We see no reversible error in the motion judge's decision to strike the action.

Disposition

[5] The appeal is dismissed with costs to the respondents, fixed at $3,000 inclusive of disbursements and HST.

"K. Feldman J.A."

"E.A. Cronk J.A."

"B.W. Miller J.A."