



COURT OF APPEAL FOR ONTARIO

CITATION: Narwhal International Limited v.
    O.M.V. Investments Limited, 2020 ONCA 268

DATE: 20200427

DOCKET: C67588

Gillese, Brown and Huscroft
    JJ.A.

BETWEEN

Narwhal International Limited

Plaintiff (Appellant)

and

O.M.V. Investments Limited, Aldo Elia, Virgilio Elia,

Autotrax
    Tire & Lube Inc., Franco Cardone and Lina Paris

Defendants (Respondents)

Mikalai Chapurny, for the appellant

Antoni Casalinuovo and Victor Yee, for the
    respondents O.M.V. Investments Limited, Aldo

Elia
    and Virgilio Elia

Alex Flesias, for the respondents AutoTrax
    Tire & Lube Inc., Franco Cardone and Lina Paris

Heard in writing

On appeal from the order of Justice William
    S. Chalmers of the Superior Court of Justice, dated October 2, 2019.

REASONS FOR DECISION


[1]

This is an appeal from the order of the motion
    judge striking the appellant Narwhals claim against the respondents without
    leave to amend and discharging a certificate of pending litigation.

[2]

The appellant, a commercial tenant in a property
    once owned by the respondent O.M.V., commenced an action against O.M.V. and its
    principals and the respondent Autotrax, another tenant in the property, and its
    principals. The action involved claims for breach of contract and various torts
    in connection with its business. The respondent O.M.V. and its principals
    brought a motion for summary judgment and, in the alternative, a motion to
    strike the action for being an abuse of process.

[3]

The motion judge found that the issues in the
    claim were substantially the same as in two small claims actions the appellant
    had commenced against the respondents, and concluded that issuance of this
    third action was an abuse of process. He dismissed the action against the respondents.
    In addition, the motion judge found that the appellants claims of conspiracy
    and fraudulent misrepresentation were wholly unsubstantiated. He ordered the
    appellant to pay costs on a substantial indemnity basis.

[4]

The appellant submits that the motion judge
    erred in concluding that the issues were the same, erred in turning a motion
    for partial summary judgment motion into a motion for full summary judgment,
    and erred in concluding that the claims of conspiracy and fraudulent
    misrepresentation were wholly unsubstantiated. The appellant submits, further,
    that the motion judge erred in awarding substantial indemnity costs.

[5]

We disagree.

[6]

The motion judge made no error in finding that
    the issues in this action are substantially the same as in the two small claims
    court actions. He reviewed the pleadings in those actions and found that
    parties were the same and that the claims arose out of issues related to the
    appellants tenancy. As the motion judge noted, the affidavit evidence of the principal
    of the appellant corporation, Mr. Gennady Tcherny, confirmed as much. He
    specifically acknowledged that [a]ll three actions arise out [sic] breach of
    contract and various torts committed by the defendants in connection with the
    plaintiffs business. The appellants attempt to consolidate the three actions
    after being served with the respondent O.M.V.s motion record further supports
    the motion judges conclusion that the actions were substantially the same.

[7]

Although the respondent O.M.V. brought a motion
    for partial summary judgment, in the alternative it sought to have the
    appellants claim struck as an abuse of process. The respondents motion
    succeeded on the alternative basis. The motion judge did not decide the partial
    summary judgment application and there is no need to address the appellants
    summary judgment arguments on this appeal.

[8]

Given that the appeal fails, there is no basis
    to review the motion judges costs order. The appellant was required to seek
    leave to appeal the motion judges costs order and did not do so. We would not
    have granted leave to appeal the costs award in any event. It is well
    established that the award of costs is entitled to deference. In this case, the
    motion judge found not only that the claim was an abuse of process, but also
    that the claims of civil conspiracy and fraudulent misrepresentation were
    wholly unsubstantiated. He made no error in awarding costs on a substantial
    indemnity basis.

[9]

The appeal is dismissed.

[10]

The respondents are entitled to their costs of
    the appeal on a partial indemnity basis. Autotrax costs are fixed at $10,400
    and O.M.V.s costs are fixed at $12,900, both amounts inclusive of applicable taxes
    and disbursements.

E.E.
    Gillese J.A.

David
    Brown J.A.

Grant
    Huscroft J.A.


