CITATION: Paul Sadlon Motors Inc. v. General Motors of Canada Ltd. and Georgian Pontiac Buick GMC Inc. 2011 ONSC 4650
DIVISIONAL COURT FILE NO.: 164/11 and 365/11
DATE: 20110802
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
PAUL SADLON MOTORS INCORPORATED
Plaintiff
(Moving Party)
– and –
GENERAL MOTORS OF CANADA LIMITED and GEORGIAN PONTIAC BUICK GMC INC.
Defendants
(Responding Parties)
W. Thomas Barlow and Gideon C. Forrest for the Plaintiff
David Morritt and Jennifer Kelley, for the Defendants, General Motors of Canada Limited
Rocco Di Pucchio and James Renihan, for the Defendants, Georgian Pontiac Buick GMC Inc.
HEARD at Toronto: August 2, 2011
LEDERMAN J. (orally)
Nature of Motions
[1] The plaintiff Sadlon brings three motions:
(i) A motion for leave to appeal to the Divisional Court from the decision of Perell J. dated March 14, 2011, in which he added Georgian Pontiac Buick GMC Inc. (“Georgian”) as a party defendant to this action;
(ii) A motion for leave to appeal to the Divisional Court from the order of Perell J. dated July 20, 2011, in which he dissolved an interim interlocutory injunction enjoining and restraining the defendant GMCL from appointing an additional Chevrolet dealer in Sadlon’s existing Barrie market area;
(ii) A stay of Perell J.’s July 20, 2011 decision pending the disposition of the appeal, if leave is granted.
Decision of Perell J. to Add Georgian as a Party Defendant (Ct. File #164/11)
[2] Perell J. added Georgian as a necessary party under Rule 5.03(1) to enable the Court to adjudicate effectively and completely on the issues in the proceeding.
[3] In doing so, he pointed out that the position of Georgian is not the same as GMCL; that Georgian has a direct and immediate stake in the outcome of the litigation and has a right to defend its own legal rights.
[4] Perell J. correctly identified the legal principles and is not in conflict with other decisions concerning joinder of parties under Rule 5.03 and therefore the first component under Rule 62.02(4)(a) has not been met.
[5] As for the test under Rule 62.02(4)(b), there is no good reason to doubt the correctness of the order adding Georgian as necessary party defendant as the rights of both Georgian and Sadlon as GMCL dealers in Barrie are directly affected. It would not be just to exclude Georgian as a participant in this action.
[6] Furthermore, the second component of the test under 4(b) has not been met. The addition of Georgian as a party defendant raises no issues of general importance to the administration of justice and does not bring into question the interpretation of the dealer agreement or of GMCL’s duties to its franchisees.
[7] As neither the test for leave to appeal under Rule 62.02(4)(a) or (4)(b) have been met, this motion is dismissed.
The Decision of Perell J. to Dissolve the Interim Interlocutory Injunction (Ct. File #365/11)
[8] Sadlon claims that Perell J.’s injunction decision conflicts at least with three other decisions, that is, three other decisions in the same proceeding.
[9] Two of the decisions were merely interim injunctions granted by Whitaker J. who expressly stated that these orders were made pending a hearing of the interlocutory injunction motion on the merits. It was Perell J. who heard the matter on the merits on a full record. It cannot be said that his decision is in conflict in principle with those of Whitaker J. as Whitaker J. did not decide the motion for an interlocutory injunction.
[10] The decision of Spence J. granted an interlocutory injunction restraining GMCL from implementing a specific plan. However, Spence J. expressly stated:
“Nothing in this order shall restrain or enjoin GMCL from exercising any rights it may have to appoint an additional dealer in the Barrie market area as it was constituted prior to the notice given to the plaintiff as to the adoption of the Barrie Market Area Revision.”
[11] The subject matter before Perell J. was a new plan which did not involve a division of the Barrie Market area and was therefore a different question than was before Spence J.
[12] Sadlon also argued that Perell J.’s decision is in conflict with the Rogers Cable T.V. decision and the principle that the relevant status quo is the state of affairs existing during the period immediately preceding the commencement of the action.
[13] Status quo in any given situation is a matter of context. It was appropriate for Perell J. to consider the Barrie Market area as an undivided whole and historically the relationship between Sadlon, Georgian and GMCL and to view the status quo as a continuum.
[14] In his consideration of the status quo and the question of harm to Georgian, Perell J. exercised his discretion and in so doing was not in conflict with the well established principles in the RJR-MacDonald line of jurisprudence for determining whether or not to grant an interlocutory injunction.
[15] Further, a trial date is set for November 28, 2011, and appellate review at this stage is not desirable as it would merely delay the process.
[16] In making his factual findings, Perell J. identified four changes in circumstances from those that were before Spence J. and he had an evidentiary basis for exercising his discretion to find that Sadlon would not suffer irreparable harm pending trial in the absence of an interlocutory injunction and that the balance of convenience favoured Georgian and GMCL.
[17] I therefore have no good reason to doubt the correctness of Perell J.’s decision.
[18] Moreover, the issues in question do not transcend the interests of the immediate parties and do not raise any matter of general public importance to the administration of justice.
[19] As the tests under neither Rule 62.02(4)(a) nor (4)(b) have been met, the motion for leave to appeal is dismissed as is Sadlon’s motion for a stay.
[20] For leave to appeal the addition of Georgian as a party defendant, I have endorsed the Record, “For oral reasons delivered, the motion is dismissed. Georgian and GMCL will each have their costs fixed at $7,700.00, all inclusive.”
[21] For the motion dismissing the injunction, I have endorsed the Record, “For oral reasons delivered, the motion is dismissed. Georgian and GMCL will each have their costs fixed at $4,900.00 all inclusive.”
LEDERMAN J.
Date of Reasons for Judgment: August 2, 2011
Date of Release: August 9, 2011
CITATION: Paul Sadlon Motors Inc. v. General Motors of Canada Ltd. and Georgian Pontiac Buick GMC Inc. 2011 ONSC 4650
DIVISIONAL COURT FILE NO.: 164/11 and 365/11
DATE: 20110802
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LEDERMAN J.
BETWEEN:
PAUL SADLON MOTORS INCORPORATED
Plaintiff
(Moving Party)
– and –
GENERAL MOTORS OF CANADA LIMITED and GEORGIAN PONTIAC BUICK GMC INC.
Defendants
(Responding Parties)
ORAL REASONS FOR JUDGMENT
LEDERMAN J.
Date of Reasons for Judgment: August 2, 2011
Date of Release: August 9, 2011