



COURT OF APPEAL FOR ONTARIO

CITATION: Gary Anthony Bennett Professional Corporation v.
    Triella Corp., 2019 ONCA 225

DATE: 20190321

DOCKET: C65281

Feldman, Pepall and Nordheimer JJ.A.

BETWEEN

Gary
    Anthony Bennett Professional Corporation

Applicant (Appellant)

and

Triella
    Corp.

Respondent (Respondent)

Mark Ross, for the appellant

Edwin Upenieks and Angela Kwok, for the respondent

Heard and released orally:  March 18, 2019

On appeal from the order of Justice Leonard Ricchetti of
    the Superior Court of Justice, dated September 19, 2017, with reasons reported
    at 2017 ONSC 5474, and from the costs order dated October 18, 2017

REASONS FOR DECISION

[1]

The applicant brought an application that sought two mandatory orders,
    and an injunction, essentially designed to allow the applicant to have access
    to certain data over which the respondent had control. The application
    eventually led to a consent order that permitted the applicant to have access
    to its data, if the applicant paid in trust to the respondents lawyers the
    amount outstanding for fees due to the respondent on a without admission of
    liability basis. The consent order did not stipulate what was to happen if the
    payment was not made.

[2]

The applicant did not pay the outstanding fees by the time stipulated in
    the consent order. About six weeks after that date, the respondent brought a
    motion to dismiss the original application.  The application judge granted that
    relief. He found that the application was moot.

[3]

The appeal is based principally on two contentions. One is that the
    requirement in the consent order for the payment of the outstanding fees was an
    option available to the applicant, one that the applicant could choose not to
    avail itself of. The other is that the application judge erred in not
    permitting the applicant a further opportunity to pay the outstanding amount
    before dismissing the application.

[4]

In our view, nothing turns on whether the payment of the outstanding
    fees is properly characterized as an option or not. The fact remains that the
    applicant brought an application for certain relief that it obtained through
    the consent order but on the condition that the payment interest be made.
    Notwithstanding that the amount was not paid, it appears that the applicant
    subsequently achieved the relief that he sought in respect of his data in the
    application through other sources. There was nothing left to be adjudicated in
    terms of the relief that was sought. Whether one considers that result as
    rendering the application moot, or spent, or some other term, the effect was
    the same.  There was nothing left for the court to adjudicate upon.

[5]

In those circumstances, the application judge was correct to dismiss the
    application.

[6]

In oral argument, the appellant submitted that there were other
    outstanding issues to be adjudicated in the application including issues
    surrounding the appellants website and passwords related to it.  These issues
    do not appear to have been raised before the application judge nor are they
    referred to either in the Notice of Appeal or Supplementary Notice of Appeal. 
    We also note that counsel for the respondent advised that it is the first time
    that he has heard about these issues.  For these reasons, we do not make any
    findings in this regard.

[7]

The applicant also challenges the costs award made by the application
    judge. However, since the substantive appeal is being dismissed, the applicant
    needs but has not sought leave to appeal the costs award, as is required by s.
    133 of the
Courts of Justice Act
, R.S.O. 1990, c. C.43. Consequently,
    this court does not have jurisdiction to consider the challenge to the costs
    award.  In any event, we would not see any reason to interfere with the motion
    judges exercise of his discretion in this regard.

Conclusion

[8]

The appeal is dismissed with costs of $7,500 inclusive of disbursements
    and HST as agreed payable to the respondent.

K.
    Feldman J.A.
S.E. Pepall J.A.
I.V.B. Nordheimer J.A.


