



COURT OF APPEAL FOR ONTARIO

CITATION: Curtis v. Pinto, 2019 ONCA 982

DATE: 20191212

DOCKET: C67234

Hoy A.C.J.O., Simmons and Lauwers JJ.A.

BETWEEN

Gary Curtis

Plaintiff (Appellant)

and

Andrew Pinto and Pinto Wray James LLP

Defendants (Respondents)

Gary Curtis, acting in person

Tim Gleason and Adrienne Lei, for the respondents

Heard and released orally: December 10, 2019

On appeal from the order of Justice Grant R. Dow of the Superior
    Court of Justice, dated June 26, 2019, with reasons reported at 2019 ONSC 3635.

REASONS FOR DECISION

[1]

The appellant, Gary Curtis, appeals the order of the motion judge,
    dismissing his action against the respondents under r. 21.01(3)(d) of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg.
    194,
as an abuse of process and ordering costs against the
    appellant in the amount of $28,276.43.

[2]

The motion judge did so on the basis that the issue in the appellants action
     whether the respondents, who had represented the appellant in an unjust
    dismissal case under the
Canada Labour Code
, R.S.C. 1985, c. L-2,
before Adjudicator Monteith had
    failed to follow his instructions, misled and deceived him, and/or failed to
    provide competent legal services  had been specifically raised by the
    appellant before and determined by Adjudicator Monteith. The Federal Court
    dismissed the appellants application for judicial review of that decision:
Curtis
    v. Bank of Nova Scotia
, 2017 FC 380.

[3]

Adjudicator Monteith had no doubt counsel was acting in accordance with
    the [appellants] instructions and found that there was no basis for the contention
    of ineffective representation made against Mr. Pinto, the former counsel of the
    [appellant]. The Federal Court held that the appellants evidence does not
    show a failure by [the respondent] Mr. Pinto to follow instructions and was
    not persuaded that Mr. Pinto acted incompetently.

[4]

The appellant argues that the motion judge erred in dismissing his
    action as an abuse of process because: Adjudicator Monteith only made non-binding
    comments and not findings; if Adjudicator Monteith made findings, they were
    only made on the appellants motion to reopen the hearing and findings on a
    motion cannot be the basis for a claim of abuse of process; and the respondents
    were not parties to the proceeding before Adjudicator Monteith. The appellant
    also argues that the motion judge was biased.

[5]

We are not persuaded that there is any basis for this court to interfere
    with the motion judges order.

[6]

As the motion judge noted, citing
Toronto (City) v. C.U.P.E., Local
    79
, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 51,

the doctrine of abuse of process concentrates on the integrity
    of the adjudicative process  if the result in the subsequent proceeding is
    different from the conclusion reached in the first one on the very same issue,
    the inconsistency, in of itself, will undermine the credibility of the entire
    judicial process, thereby diminishing its authority, its credibility and its
    aim of finality.

As this court stated in
Canam Enterprises Inc. v.
    Coles
(2000)
, 51 O.R. (3d)
    481, at para. 31, and as the motion judge further noted, the doctrine of abuse
    of process can be relied upon by persons who were not parties to the previous
    litigation.

[7]

We agree with the motion judge that the issue in this action is the same
    issue raised by the appellant in his motion to Adjudicator Monteith to reopen
    the hearing before him. In our view, Adjudicator Monteith made clear findings
    on the issue raised by the appellant on his motion to reopen. Contrary to the
    appellants assertion, a finding on an earlier motion can be the basis for a
    claim of abuse of process.

[8]

Further, in the exercise of his discretion, the motion judge considered
    whether the fact that the respondents were not parties to the previous proceeding
    would work an injustice and concluded that, in the circumstances, it would not.
    While the respondents, who, despite their efforts to be represented before
    Adjudicator Monteith, did not have the right to be fully heard in the previous proceeding,
    the findings made by Adjudicator Monteith were in their favour. It was not a
    situation where the doctrine of abuse of process was invoked to bar
    re-litigation of findings made
against
parties who
    were not parties to the first proceeding.

[9]

The appellants argument that the motion judge was not impartial is
    based solely on the statement during the proceedings that Mr. Pinto seems to
    have won the day [before Adjudicator Monteith] without participating. This
    statement is accurate and shows no bias. In our view, there is no merit to this
    ground of appeal.

[10]

The appellant has failed to articulate any error made by the motion
    judge in the costs order. In our view, the costs awarded were reasonable.

[11]

Accordingly, leave to appeal the motion judges order as to costs is
    denied, and the appeal is dismissed. The respondents shall be entitled to their
    costs of the appeal, fixed in the amount of $8,500, including HST and
    disbursements.

Alexandra Hoy
    A.C.J.O.

Janet Simmons J.A.

P. Lauwers J.A.


