COURT OF APPEAL FOR ONTARIO

CITATION: Narwhal International Limited v. O.M.V. Investments Limited, 2020 ONCA 268

DATE: 20200427

DOCKET: C67588

Gillese, Brown and Huscroft JJ.A.

BETWEEN

Narwhal International Limited

Plaintiff (Appellant)

and

O.M.V. Investments Limited, Aldo Elia, Virgilio Elia, Autotrax Tire & Lube Inc., Franco Cardone and Lina Paris

Defendants (Respondents)

Counsel:

Mikalai Chapurny, for the appellant

Antoni Casalinuovo and Victor Yee, for the respondents O.M.V. Investments Limited, Aldo Elia and Virgilio Elia

Alex Flesias, for the respondents AutoTrax Tire & Lube Inc., Franco Cardone and Lina Paris

Heard: in writing

On appeal from the order of Justice William S. Chalmers of the Superior Court of Justice, dated October 2, 2019.

REASONS FOR DECISION

[1] This is an appeal from the order of the motion judge striking the appellant Narwhal’s claim against the respondents without leave to amend and discharging a certificate of pending litigation.

[2] The appellant, a commercial tenant in a property once owned by the respondent O.M.V., commenced an action against O.M.V. and its principals and the respondent Autotrax, another tenant in the property, and its principals. The action involved claims for breach of contract and various torts in connection with its business. The respondent O.M.V. and its principals brought a motion for summary judgment and, in the alternative, a motion to strike the action for being an abuse of process.

[3] The motion judge found that the issues in the claim were substantially the same as in two small claims actions the appellant had commenced against the respondents, and concluded that issuance of this third action was an abuse of process. He dismissed the action against the respondents. In addition, the motion judge found that the appellant’s claims of conspiracy and fraudulent misrepresentation were “wholly unsubstantiated”. He ordered the appellant to pay costs on a substantial indemnity basis.

[4] The appellant submits that the motion judge erred in concluding that the issues were the same, erred in turning a motion for partial summary judgment motion into a motion for full summary judgment, and erred in concluding that the claims of conspiracy and fraudulent misrepresentation were wholly unsubstantiated. The appellant submits, further, that the motion judge erred in awarding substantial indemnity costs.

[5] We disagree.

[6] The motion judge made no error in finding that the issues in this action are substantially the same as in the two small claims court actions. He reviewed the pleadings in those actions and found that parties were the same and that the claims arose out of issues related to the appellant’s tenancy. As the motion judge noted, the affidavit evidence of the principal of the appellant corporation, Mr. Gennady Tcherny, confirmed as much. He specifically acknowledged that “[a]ll three actions arise out [sic] breach of contract and various torts committed by the defendants in connection with the plaintiff’s business”. The appellant’s attempt to consolidate the three actions after being served with the respondent O.M.V.’s motion record further supports the motion judge’s conclusion that the actions were substantially the same.

[7] Although the respondent O.M.V. brought a motion for partial summary judgment, in the alternative it sought to have the appellant’s claim struck as an abuse of process. The respondent’s motion succeeded on the alternative basis. The motion judge did not decide the partial summary judgment application and there is no need to address the appellant’s summary judgment arguments on this appeal.

[8] Given that the appeal fails, there is no basis to review the motion judge’s costs order. The appellant was required to seek leave to appeal the motion judge’s costs order and did not do so. We would not have granted leave to appeal the costs award in any event. It is well established that the award of costs is entitled to deference. In this case, the motion judge found not only that the claim was an abuse of process, but also that the claims of civil conspiracy and fraudulent misrepresentation were “wholly unsubstantiated”. He made no error in awarding costs on a substantial indemnity basis.

[9] The appeal is dismissed.

[10] The respondents are entitled to their costs of the appeal on a partial indemnity basis. Autotrax costs are fixed at $10,400 and O.M.V.’s costs are fixed at $12,900, both amounts inclusive of applicable taxes and disbursements.

“E.E. Gillese J.A.”

“David Brown J.A.”

“Grant Huscroft J.A.”