Court of Appeal for Ontario

Date: 2019-09-03 Docket: C66716

Judges: Lauwers, van Rensburg and Roberts JJ.A.

Between

Grace Joubarne Applicant (Appellant)

and

Gary Kellam, Judith Spence, National Guild of Hypnotists Ottawa-Outaouais Chapter, National Guild of Hypnotists Inc. (NGH) Respondents (Respondent)

Counsel

Grace Joubarne, self-represented

Jaye Hooper, for the respondent

Heard: In writing

On appeal from: The order of Justice Robert N. Beaudoin of the Superior Court of Justice, dated February 20, 2019.

Reasons for Decision

[1] The appellant appeals the order of Beaudoin J. dismissing her action under r. 2.1 of the Rules of Civil Procedure.

[2] Contrary to the appellant's submissions, the r. 2.1 motion in this case was not a close call. The appellant's Small Claims Court action was dismissed after a seven-day trial. She sought to appeal to the Divisional Court but was out of time. The motion for an extension of time was refused, and the appellant's attempt to appeal that order to this court was dismissed by Trotter J.A. Justice Trotter noted the complete absence of merit in the proposed appeal and underlying action.

[3] There is no question that the new Superior Court action, which raised the same issues that had previously been determined, was an attempt to relitigate the initial dispute. Contrary to her assertion, the earlier proceedings are not a "nullity" and their dismissal does not give the appellant the right to start again. The proposed fresh evidence, offered to challenge the respondent's standing to bring the r. 2.1 motion, does not affect the outcome of this appeal. We are satisfied that the respondent had such standing. The action was properly dismissed by Beaudoin J. on a r. 2.1 motion.

[4] The appeal is therefore dismissed. The appellant shall pay costs fixed at $5,000.00 to the respondent, Judith Spence, in respect of the appeal, including the motion to admit fresh evidence.

"P. Lauwers J.A."

"K. van Rensburg J.A."

"L.B. Roberts J.A."