CITATION: Gravelle v. A-1 Security Manufacturing Corp., 2016 ONSC 6582
COURT FILE NO.: CV-15-0450
DATE: 2016-10-21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Gordon Gravelle o/a CodePro Manufacturing o/a Rapidkey Industries,
Gordon Gravelle being self-represented
Plaintiff (Responding party)
- and -
A-1 Security Manufacturing Corp. and AUTO PARTS ACQUISITION LLC dba Cumsa Distribution, and Avid Industrial Corporation, and Ricky King, and Danny Teixeira,
Derek E. Zulianello, for the Defendants
Defendants (Moving Party)
HEARD: October 20, 2016, at Thunder Bay, Ontario
Mr. Justice W.D. Newton
Decision On Motion To Set Aside Order
Overview
[1] By notice of motion originally returnable August 4, 2016, the plaintiff seeks an order setting aside my order dated March 1, 2016. The plaintiff, Mr. Gravelle, represents himself. Some procedural background is necessary before I deal with the substance of this motion.
[2] My reasons dated March 1, 2016 are attached as Schedule "A" to this decision. On that date I struck out the statement of claim in this action as disclosing no reasonable cause of action and as an abuse of process since I concluded that this action was "an attempt to once again circumvent a court order." What Mr. Gravelle is attempting to do in this motion is to, yet again, circumvent a court order.
Procedural Issues – this motion
[3] On the original return date of this motion on August 4, 2016 Mr. Gravelle requested an adjournment. Fitzpatrick J. granted that adjournment to August 18, 2016 on terms which included that the presiding motion court judge would, on August 18, fix a date for the delivery of Mr. Gravelle's material.
[4] On August 18, 2016, Shaw R.S.J. ordered that Mr. Gravelle file his materials by August 26, 2016 and adjourned this motion to September 8, 2016 to set a date for the hearing of the motion.
[5] In the interim, on August 24, 2016 Mr. Gravelle and counsel for the defendants appeared before me to settle the terms of the order arising from my endorsement and reasons dated March 1, 2016. Mr. Gravelle had refused to approve that order on the grounds that, once the formal order was issued, I would be functus and unable to vary that order. I deferred the formal issuance of that order pending the outcome of this motion so Gravelle was not precluded from arguing that I was not "functus".
[6] At that time, I was not aware that Mr. Gravelle had appealed the March 1, 2016 order and that the appeal was dismissed for delay on June 6, 2016 with costs. I was also not aware that Mr. Gravelle had brought a motion before the Court of Appeal to extend the time to perfect the appeal. Had I known that the appeal was brought then I would have been "functus" since Mr. Gravelle had treated my order as final and appealed it to the Court of Appeal.
[7] On July 11, 2016, Juriansz J.A. dismissed Mr. Gravelle's motion to extend the time for appeal. In his endorsement Juriansz J.A. stated:
In my view the appeal is devoid of merit. Considering the appeal has no merit and that the action struck was an abuse of process, I consider the court can reasonably deny the important right of appeal, especially when prejudice to the respondent and the overall demands of justice are considered.
[8] On August 24, 2016, at Mr. Gravelle's request and on the consent of counsel for the defendants, I extended the time for delivery of Mr. Gravelle's material from August 26, 2016 to August 29, 2016. My endorsement included this statement: "it is acknowledged by Mr. Gravelle that he is not to file any further material on this motion after August 29, 2016 at 10 AM."
[9] On September 8, 2016 this matter was before Shaw R.S.J. in motions court. Shaw R.S.J. noted that Mr. Gravelle had not met the timelines for filing his motion materials. Shaw R.S.J. ordered that the materials that Mr. Gravelle now wishes to file "shall not be accepted for filing unless leave to do so is granted by the judge hearing the motion on October 6, 2016.
[10] On October 6, 2016 this motion was adjourned to October 20, 2016 because confirmation was not filed.
[11] On October 20, 2016, Mr. Gravelle acknowledged that, notwithstanding the order dated September 8, 2016 directing that Mr. Gravelle's material not be accepted for filing unless leave was granted, he contacted the trial coordinator by telephone and suggested that it would be helpful if the motions court judge reviewed the material that he wished to file. The trial coordinator declined Mr. Gravelle's request.
[12] At the hearing of this motion, notwithstanding the failure of Mr. Gravelle to comply by timelines, I elected to receive the material in an attempt to bring finality to this action. That was over the objection of counsel for the defendants who had not reviewed this new material consisting of several hundred pages of factum, affidavit, and authorities.
[13] I indicated to the parties that if I needed to hear from the defendants I would so advise by endorsement and arrange a further date for submissions. If I did not have to hear from counsel for the defendants I indicated that I would deliver written reasons.
Ruling on this Motion
[14] Having been unsuccessful at the Court of Appeal on July 11, 2016, Mr. Gravelle brought this motion to have me reconsider my March 1, 2016 decision.
[15] As my reasons of March 1, 2016 disclose, Mr. Gravelle has a history of attempting to circumvent court orders. This is but another attempt to do so.
[16] Mr. Gravelle's complaints are with respect to process before me and previously before Pierce J. Any concern over process is defeated when the underlying action is, as Juriansz J.A. stated, "devoid of merit."
[17] This motion is dismissed.
[18] This motion has been an abuse of process considering the decision of the Court of Appeal on July 11, 2016. As such, the defendants are entitled to reasonable full indemnity costs. Within 30 days of the release of these reasons the defendant shall deliver their costs submissions consisting of no more than three pages plus costs outline. Within 10 days of the delivery of the defendants' costs submissions Mr. Gravelle may respond with his costs submissions consisting of no more than three pages.
[19] If costs submissions are not received within 30 days then the defendants' costs will be deemed settled.
"Original signed by"____
The Hon. Mr. Justice W.D. Newton
Released: October 21, 2016
CITATION: Gravelle v. A-1 Security Manufacturing Corp., 2016 ONSC 6582
COURT FILE NO.: CV-15-0450
DATE: 2016-10-21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Gordon Gravelle o/a CodePro Manufacturing o/a Rapidkey Industries,
Plaintiff (Responding party)
- and -
A-1 Security Manufacturing Corp. and AUTO PARTS ACQUISITION LLC dba Cumsa Distribution, and Avid Industrial Corporation, and Ricky King, and Danny Teixeira,
Defendants (Moving Party)
DECISION ON MOTION TO SET ASIDE ORDER
Newton J.
Released: October 21, 2016
/mls