



COURT OF APPEAL FOR ONTARIO

CITATION: Indcondo Building
    Corporation v. Sloan, 2014 ONCA 201

DATE: 20140317

DOCKET: C57481

MacFarland, Lauwers and Strathy JJ.A.

BETWEEN

Indcondo Building Corporation

Plaintiff (Respondent)

and

Valerie Frances Sloan, David Robin Sloan and Cave
    Hill Properties Ltd.

Defendants (Appellants)

Philip P. Healey and Vedran Simkic, for the appellants

Trung S. Nguyen, for the respondent

Heard:  March 5, 2014

On appeal from the order of Justice David M. Brown of the
    Superior Court of Justice, dated July 12, 2013.

ENDORSEMENT

[1]

The appellants appeal the motion judges decision on their motion to amend
    their Statement of Defence, issue a Third Party claim and discharge certain
    Certificates of Pending Litigation (CPLs).

[2]

We agree with the motion judges decision and for the reasons he gave on
    the first two issues.

Amendments to Statement of Defence

[3]

As for that part of his order limiting the appellants rights of discovery
    and production in relation to the state of mind amendments he did allow, not
    only do we agree with his reasons, we note, as he did in paragraph 20 of his
    reasons, counsel for the appellant agreed that in relation to those amendments,
    there would be no need for discovery and production.

[4]

We agree that the limitation defence now proposed is the same argument
    made before Morawetz J. which this court rejected in 2010. Paragraph 3 of the
    reasons of Karakatsanis J.A. (as she then was) make it perfectly clear that the
    argument advanced in this court today is the very argument this court rejected
    then.

The Third Party Claim

[5]

The solicitors negligence plea is irrelevant to the issues raised in
    this s. 38 proceeding and in the same vein the Third Party Notice was properly
    declined in relation to the solicitor and to those proposed third parties who
    were co-defendants along with the appellant, David Robin Sloan in the 1992
    action.

The CPLs

[6]

The appellants seek to challenge the validity of the CPLs on the ground
    of non-disclosure.  We do not agree with the motion judge that he lacked
    jurisdiction to consider the motion to discharge the CPLs in view of the order
    of this court restoring the CPLs following the reversal of the order of
    Morawetz J. The CPLs were restored by order of this court simply because they
    had been discharged by that order and this court reversed that decision.
    Neither the decision of Morawetz J. nor the decision of this court
    addressed the validity of the CPLs on the ground of non-disclosure. In our
    view, no court has as yet squarely dealt with the issue.
Res judicata
therefore does not apply.

[7]

This court does not have original jurisdiction and we would not consider
    this issue as a matter of first instance. In our view, it would be open to the
    appellants to bring such a motion before the case management judge to be heard
    in such manner as he may direct, including at trial, in view of the imminent
    trial date of May 26
th
, 2014.

[8]

In all other respects the appeal is dismissed. Costs to the respondent
    fixed in the agreed amount of $5000 inclusive of disbursements and HST.

J. MacFarland J.A.

P. Lauwers J.A.

G.R. Strathy J.A.


