Agway Metals Inc. v. Fresh Springs Investments Limited
Because the motion judge gave no reasons and made no finding of deliberate flouting the order could not be sustained; the Court of Appeal set aside the motion judge's order and allowed the appeal on condition the appellants pay the outstanding $750 cost order by the specified deadline, and affirmed the respondent's...
Source-derived case information.
- Citation
- C27572
- Parties
- Respondent: Agway Metals Inc.; Appellant: Fresh Springs Investments Limited; Appellant: Ronald William Mullen; Appellant: Cindy Lee Mullen; Appellant: 232872 Woodcraft Company Limited; Appellant: Nino Campitelli; Appellant: Louie Campitelli; Appellant: Lawken Investments Limited; Appellant: Maria Assunta Campitelli; Appellant: Evelyn Campitelli
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 22 October 1998
- Procedural Posture
- Civil / Appeal (motion)
- Outcome
- Appeal allowed conditionally; order of Cumming J. set aside; respondent's motion dismissed on condition of payment; respondent awarded fixed costs of the motion; no costs of appeal.
- Legal Topics
- Non Compliance With Court Order, Costs Orders, Setting Aside Orders, Renewal of Motion, Requirement for Reasons
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Agway Metals Inc.
Respondent
Fresh Springs Investments Limited
Appellant
Ronald William Mullen
Appellant
Cindy Lee Mullen
Appellant
232872 Woodcraft Company Limited
Appellant
Nino Campitelli
Appellant
Louie Campitelli
Appellant
Lawken Investments Limited
Appellant
Maria Assunta Campitelli
Appellant
Evelyn Campitelli
Appellant
Procedural Posture
Civil / Appeal (motion)
Legal Issues
- 1 Whether the motion judge erred by making an order for non-compliance without giving reasons or finding deliberate flouting of the prior order
- 2 Whether partial compliance by appellants and failure to pay an outstanding cost order justified the sanction
- 3 Whether the appellate court should set aside the motion judge's order and conditionally allow the appeal
Ratio Decidendi
Because the motion judge gave no reasons and made no finding of deliberate flouting the order could not be sustained; the Court of Appeal set aside the motion judge's order and allowed the appeal on condition the appellants pay the outstanding $750 cost order by the specified deadline, and affirmed the respondent's entitlement to the $1,000 costs fixed by the motion judge, with no costs awarded for the appeal.
Court Disposition
Appeal allowed conditionally; order of Cumming J. set aside; respondent's motion dismissed on condition of payment; respondent awarded fixed costs of the motion; no costs of appeal.
Orders
- Appeal allowed on condition that appellants pay outstanding $750 cost order by 4:00 p.m. Friday October 23
- Order of Cumming J. set aside
Full Case Text
Judgment text and source record
1 paragraphs
Agway Metals Inc. v. Fresh Springs Investments Limited Collection Decisions of the Court of Appeal Date 1998-10-22 Docket numbers C27572 Judges McMurtry, Roy; Laskin, John Ivan; Borins, Stephen Subject Civil Decision Content Date:19981022 Docket:C27572 COURT OF APPEAL FOR ONTARIO RE: AGWAY METALS INC. (Plaintiff (Respondent)) and FRESH SPRINGS INVESTMENTS LIMITED, RONALD WILLIAM MULLEN, CINDY LEE MULLEN, 232872 WOODCRAFT COMPANY LIMITED, NINO CAMPITELLI, LOUIE CAMPITELLI, LAWKEN INVESTMENTS LIMITED, MARIA ASSUNTA CAMPITELLI AND EVELYN CAMPITELLI (Defendants (Appellants)) BEFORE: McMURTRY C.J.O., LASKIN AND BORINS JJ.A. COUNSEL: Brian D. Belmont for the appellant Barbara J. Thurston for the respondent HEARD: October 16, 1998 ENDORSEMENT [1] Unfortunately the motion judge, Cumming J., did not give any reasons for his order that there had been noncompliance with the order of Lax J. Consequently, we are unable to definitively answer whether his order was correctly made. He made no finding, which was required on a motion of this nature, that the appellants had deliberately flouted the order of Lax J. We note that the appellants appear to have made some efforts to answer the questions ordered by Lax J. However, we are concerned about the appellant's failure to pay the outstanding cost order of $750. On condition that the appellants pay the $750 cost order by 4:00 p.m. Friday, October 23rd, this appeal is allowed, the order of Cumming J. is set aside and the respondent's motion is dismissed. Should the respondent however wish to renew its motion it may do so before a judge of the General Division. The respondent is entitled to its cost of the motion before Cumming J. in the amount fixed by him, $1,000. There shall be no costs of this appeal.