



COURT OF APPEAL FOR ONTARIO

CITATION:
Chaudhry v. A&B Auto
    Leasing & Car Rental Inc., 2012 ONCA 336

DATE: 20120518

DOCKET: C54766

MacPherson, Gillese and MacFarland JJ.A.

BETWEEN

Muhammad Naeem Chaudhry

Plaintiff (Appellant)

and

A&B Auto Leasing & Car Rental Inc. and
    Mohammad Rafiq and
Shahzad Rafiq
and
Ayesa Rafiq
and
Haider Humza Inc.

Defendants (
Respondents
)

M. Doli and C. Nwobele, for the appellant

M. Teitel, for the respondents Shahzad Rafiq, Ayesa
    Rafiq and Haider Humza Inc.

Heard: May 10, 2012

On appeal from the judgment of Justice Michael Dambrot of
    the Superior Court of Justice, dated December 8, 2011.

APPEAL BOOK ENDORSEMENT

[1]

Three of the defendants in this action, Shahzad Rafiq, Ayesa Rafiq and
    Haider Humza Inc., brought a motion to, among other things, strike out those
    portions of the amended Statement of Claim and Defence to Counterclaim that
    bring into issue the validity of a $275,000 judgment of Coo J. dated November
    14, 2005.  The motion was successful.  The plaintiff appeals.

[2]

The motion judge fully canvassed the facts, articulated the relevant
    legal principles and concluded that the circumstances cried out for the
    application of the doctrine of abuse of process.  At para. 20 of his reasons
    for decision, the motion judge identified the following circumstance which, in his
    view, cried out for the application of the doctrine of abuse of process:

1.

The issue had
    already been litigated twice.

2.

The issue had
    already been raised in the plaintiffs pleadings in this case when the motion
    before Penny J. was heard.

3.

The plaintiff
    was on notice that the issue was being litigated before Penny J., and he was
    invited to take steps to participate.

4.

In [the motion
    judges] view, it was highly likely that the plaintiff would have been granted
    standing as a person who would be affected by the order sought.

5.

Despite being
    put on notice, the plaintiff declined to participate.

6.

When the
    plaintiff declined to participate in the motion before Penny J., he had a clear
    intention of instead litigating the same issue again in this action.

[3]

We agree.  While it may be that the motion could also have been decided
    on the basis of estoppel, the motion judge made no error in deciding the motion
    on the doctrine of abuse of process.

[4]

Accordingly, the appeal is dismissed with costs to the respondents
    Shahzad Rafiq, Ayesa Rafiq and Haider Humza Inc., fixed at $9,000, all
    inclusive.


