SUPERIOR COURT OF JUSTICE - ONTARIO
Court File No.: CV-14-4548-00
Date: 2015-09-11
RE: GOLDBRITE TRADING CO. LTD. v. GOEYECARE LTD. INC.
BEFORE: LEMON J.
COUNSEL:
Roger A. Gosbee, Counsel for the
Plaintiff/Defendant by Counterclaim
Marvin J. Huberman, Counsel for the Defendant/
Plaintiff by Counterclaim
HEARD: August 27, 2015
ENDORSEMENT
The Issue
[1] Goeyecare Ltd. Inc. moves to strike Goldbrite Trading Co. Ltd.’s Statement of Claim for abuse of process. It submits that Goldbrite’s earlier proceeding in the Small Claims Court should prevent it from proceeding with this action. After hearing argument, I dismissed the motion for reasons to follow; these are those reasons.
Background
[2] Goldbrite initially brought a claim in the Small Claims Court, at Brampton, on January 23, 2014. The claim related to monies owing under a commercial lease.
[3] On February 10, 2014, Goeyecare filed its defence.
[4] On April 14, 2014, a settlement conference was held. The endorsement from that hearing was “Case not settled and parties have agreed that a motion will be undertaken by the plaintiff to move this case up to Superior Court”.
[5] On June 10, 2014, the Small Claims Court sent a Notice of Approaching Dismissal to the parties.
[6] By fax memo dated June 24, 2014, the lawyer for Goldbrite sent to the lawyer for Goeyecare a copy of a consent to have the claim transferred to the Superior Court of Justice. Counsel for Goldbrite asked counsel for Goeyecare to execute the consent, failing which Goldbrite would bring a motion to have the matter transferred.
[7] The consent was never executed by or on behalf of Goeyecare and Goldbrite did not bring a motion to transfer the matter.
[8] Since the action did not move ahead, on August 5, 2014, an Order dismissing the claim as abandoned was sent to the parties by the Brampton Small Claims Court.
[9] On October 8, 2014, Goldbrite commenced this action in the Superior Court. It is agreed that although damages differ, the claim is for the same causes of action as were pled in the Small Claims Court action.
[10] Although the Notice of Motion initially submitted that the case had been disposed of in the Small Claims Court, that ground was specifically withdrawn at the motion. It is agreed that the matter was not dismissed on its merits but rather by way of an administrative action.
Legal Authorities
[11] In Behn v. Moulton Contracting Ltd., 2013 SCC 26, [2013] 2 S.C.R. 227, LeBel J. confirmed that the abuse of process doctrine engages the inherent power of the court to prevent the misuse of its procedure, where failure to act would result in manifest unfairness to a party to the litigation or would in some other way bring the administration of justice into disrepute. He noted circumstances in which abuse of process has been applied include attempts to relitigate a claim that the court had already determined or where unreasonable delay had caused serious prejudice to the defendant. He found that the doctrine of abuse of process is flexible, and it exists to ensure that the administration of justice is not brought into disrepute.
Analysis
[12] Goeyecare submits that there was an order requiring Goldbrite to move the case to the Superior Court. Since Goldbrite failed to comply with the order, allowing it to proceed with a separate action would amount to an abuse of process. I disagree. I do not read the endorsement of the Small Claims Court judge to be an order. Rather, it is simply an endorsement as to what occurred that day. There was no other evidence from Goeyecare as to what occurred at the pre-trial. My reading of the endorsement suggests that the parties may have simply agreed that the matter would be moved to the Superior Court. If so, this step is more efficient than that process and would not be abusive.
[13] If I am wrong in that reading and it was an order, then it must have required both to proceed with that consensual step. Goeyecare did not respond to the reasonable steps taken by Goldbrite to proceed with the motion. Its failure to do so cannot assist it in finding Goldbrite to be abusing the court`s process.
[14] Goeyecare picks and chooses paragraphs from Justice LeBel’s decision in Behn. However, a comprehensive reading of that case shows that Goeyecare has not met the standard to find an abuse of process. There is no evidence here of any serious prejudice to Goeyecare that could amount to an abuse. It is agreed that the claim has not already been determined on its merits. A balancing of the interests of the parties does not lead to a determination of an abuse of process. See: Abarca v. Vargas, 2015 ONCA 4, 123 O.R. (3d) 561. Rather, ending the claim that has not yet been adjudicated on its merits would bring the administration of justice into disrepute.
[15] Goeyecare submits that had Goldbrite proceeded with its motion, it may not have been successful in moving the action to the Superior Court. No evidence was led on that point. The only authority provided was Alexandrov v. Csanyi (2009), 2009 10665 (ON SCDC), 247 O.A.C. 228 (Div. Ct.). That case, however, stands for the proposition that the Superior Court has an inherent jurisdiction to exercise its discretion to allow a claimant to transfer a claim into this court. I cannot tell on this record whether Goldbrite would have been successful or not. As such, without more, I cannot rely on Goeyecare’s submission on this point.
Result
[16] Accordingly, the motion was dismissed. The parties agreed that there should be no order with respect to costs.
Lemon J.
DATE: September 11, 2015
COURT FILE NO.: CV-14-4548-00
DATE: 2015-09-11
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: GOLDBRITE TRADING CO. LTD. v. GOEYECARE LTD. INC.
BEFORE: LEMON J.
COUNSEL: Roger A. Gosbee, Counsel for the Plaintiff/Defendant by Counterclaim
Marvin J. Huberman, Counsel for the Defendant/
Plaintiff by Counterclaim
ENDORSEMENT
LEMON J.
DATE: September 11, 2015