Court of Appeal for Ontario

Date: 2019-12-10 Docket: C67234

Panel: Hoy A.C.J.O., Simmons and Lauwers JJ.A.

Between

Gary Curtis Plaintiff (Appellant)

and

Andrew Pinto and Pinto Wray James LLP Defendants (Respondents)

Counsel

Gary Curtis, acting in person

Tim Gleason and Adrienne Lei, for the respondents

Heard and released orally: December 10, 2019

On appeal from: the order of Justice Grant R. Dow of the Superior Court of Justice, dated June 26, 2019, with reasons reported at 2019 ONSC 3635.

Reasons for Decision

[1] The appellant, Gary Curtis, appeals the order of the motion judge, dismissing his action against the respondents under r. 21.01(3)(d) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as an abuse of process and ordering costs against the appellant in the amount of $28,276.43.

[2] The motion judge did so on the basis that the issue in the appellant's action – whether the respondents, who had represented the appellant in an unjust dismissal case under the Canada Labour Code, R.S.C. 1985, c. L-2, before Adjudicator Monteith had failed to follow his instructions, misled and deceived him, and/or failed to provide competent legal services – had been specifically raised by the appellant before and determined by Adjudicator Monteith. The Federal Court dismissed the appellant's application for judicial review of that decision: Curtis v. Bank of Nova Scotia, 2017 FC 380.

[3] Adjudicator Monteith had "no doubt counsel was acting in accordance with the [appellant's] instructions" and found that there was "no basis for the contention of ineffective representation made against Mr. Pinto, the former counsel of the [appellant]". The Federal Court held that the appellant's evidence "does not show a failure by [the respondent] Mr. Pinto to follow instructions" and was "not persuaded that Mr. Pinto acted incompetently".

[4] The appellant argues that the motion judge erred in dismissing his action as an abuse of process because: Adjudicator Monteith only made non-binding "comments" and not "findings"; if Adjudicator Monteith made findings, they were only made on the appellant's motion to reopen the hearing and findings on a motion cannot be the basis for a claim of abuse of process; and the respondents were not parties to the proceeding before Adjudicator Monteith. The appellant also argues that the motion judge was biased.

[5] We are not persuaded that there is any basis for this court to interfere with the motion judge's order.

[6] As the motion judge noted, citing Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 51:

the doctrine of abuse of process concentrates on the integrity of the adjudicative process … if the result in the subsequent proceeding is different from the conclusion reached in the first one on the very same issue, the inconsistency, in of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality.

As this court stated in Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481, at para. 31, and as the motion judge further noted, the doctrine of abuse of process "can be relied upon by persons who were not parties to the previous litigation".

[7] We agree with the motion judge that the issue in this action is the same issue raised by the appellant in his motion to Adjudicator Monteith to reopen the hearing before him. In our view, Adjudicator Monteith made clear findings on the issue raised by the appellant on his motion to reopen. Contrary to the appellant's assertion, a finding on an earlier motion can be the basis for a claim of abuse of process.

[8] Further, in the exercise of his discretion, the motion judge considered whether the fact that the respondents were not parties to the previous proceeding would work an injustice and concluded that, in the circumstances, it would not. While the respondents, who, despite their efforts to be represented before Adjudicator Monteith, did not have the right to be fully heard in the previous proceeding, the findings made by Adjudicator Monteith were in their favour. It was not a situation where the doctrine of abuse of process was invoked to bar re-litigation of findings made against parties who were not parties to the first proceeding.

[9] The appellant's argument that the motion judge was not impartial is based solely on the statement during the proceedings that "Mr. Pinto seems to have won the day [before Adjudicator Monteith] without participating". This statement is accurate and shows no bias. In our view, there is no merit to this ground of appeal.

[10] The appellant has failed to articulate any error made by the motion judge in the costs order. In our view, the costs awarded were reasonable.

[11] Accordingly, leave to appeal the motion judge's order as to costs is denied, and the appeal is dismissed. The respondents shall be entitled to their costs of the appeal, fixed in the amount of $8,500, including HST and disbursements.

"Alexandra Hoy A.C.J.O."

"Janet Simmons J.A."

"P. Lauwers J.A."