Court File and Parties
COURT FILE NO.: CV-13-57462
DATE: 2013/10/17
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Ashley Davies and 1374594 Ontario Inc. c.o.b. as Lightning Contracting, Plaintiffs/Responding Parties
AND
June Hodgins, Defendant/Moving Party
BEFORE: Mr. Justice James McNamara
COUNSEL: Terrance Green, Counsel for the Plaintiffs/Responding Parties
Melanie H. Levesque, Counsel for the Defendant/Moving Party
HEARD IN OTTAWA: October 11, 2013
ENDORSEMENT
[1] The defendant/moving party brings this motion under rule 21.01(3)(d) of the Rules of Civil Procedure and asks that the Court dismiss the within action as an abuse of process.
[2] The chronology of events is important.
[3] On March 2, 2012 the plaintiffs commenced proceedings as against the defendant in the Ottawa Small Claims Court. A defence to the claim was filed by the defendant and on August 22, 2012 a settlement conference took place before Deputy Judge Gouin. The endorsement record from the conference simply confirms that the conference was held and that the matter was to “proceed to trial”.
[4] The plaintiffs acknowledge in the responding materials that on October 19, 2012, a notice of approaching dismissal of the action was received, and then on December 14, 2012, there was an Order issued out of the Small Claims Court dismissing the claim as abandoned. On April 26, 2013 the plaintiffs brought this action in the Superior Court of Justice. The plaintiffs concede that substantially the same relief is sought in the Superior Court action as was sought in the Small Claims Court proceeding.
[5] The plaintiffs were self-represented during the Small Claims Court proceedings. They now have counsel. The plaintiffs’ affidavit suggest that during the course of the pre-trial settlement conference there were discussions to the effect that the Small Claims Court was not the proper place for this action and that it ought to be moved to Superior Court. The plaintiffs go on that as a result of the discussions that took place during the conference, they thought that was the end of the Small Claims Court proceedings and that they were at liberty to commence this claim in the Superior Court. The defendant’s affidavit makes reference to no such discussions but rather suggests that the tone of the discussions was that the defendant had a strong case for dismissal of the action, an assessment with which the plaintiffs did not agree.
[6] The moving party argues that the new action is an abuse of this Court’s process as it, in effect, attempts to re‑litigate in a different court the same issues that were previously dealt with. The responding plaintiffs argue that they are simply exercising their right to a fair hearing, and as the action has not been heard on its merits, to proceed with the matter in the Superior Court does not represent an abuse of the Court’s process.
[7] At the heart of this matter is, of course, the undisputed fact that the plaintiffs’ Small Claims Court action was dismissed as abandoned. In my view, the plaintiffs were, and in my view still are, at liberty to move to set that dismissal aside. To permit the plaintiffs to proceed with a second, virtually identical, action would bring the administration of justice into disrepute. It would allow a collateral attack on a previous court order which had dismissed the earlier action for delay (see Bricks and More Bricks v. Conran, 2011 ONSC 983).
[8] In all the circumstances, the motion to stay the proceedings in the Superior Court of Justice is granted. The moving party shall have their costs which having regard to the principle of proportionality I allow in the all-inclusive amount of $3,000.
Mr. Justice James McNamara
Date: October 17, 2013
COURT FILE NO.: CV-13-57462
DATE: 2013/10/17
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Ashley Davies and 1374594 Ontario Inc. c.o.b. as Lightning Contracting, Plaintiffs/Responding Parties
AND
June Hodgins, Defendant/Moving Party
BEFORE: Mr. Justice James McNamara
COUNSEL: Terrance Green, for the Plaintiffs/ Responding Parties
Melanie H. Levesque, for the Defendant/ Moving Party
ENDORSEMENT
Mr. Justice James McNamara
Released: October 17, 2013