Hester v. Canada
The motion judge did not err: the jurisdiction argument lacked merit, the distinction between refusal of leave and striking without leave was immaterial in the circumstances, and the proposed amended paragraphs and causes of action as presented were properly excluded; the appeal is dismissed and costs awarded to the...
Source-derived case information.
- Citation
- 2008 ONCA 634
- Parties
- Appellant: Joe Hester; Respondent: Her Majesty the Queen in right of Canada; Minister of National Revenue; Minister of Indian Affairs; Commissioner of Customs and Revenue; Bill McCloskey; Robert Frappier; Michael Cox; Winford Smith; Denis Lefebvre; K.M. Burpee; Ken Fox; John Fennelly; Jeanne Flemming; Luisa Guyan; Ruby Howard; Ken McCuaig; Aileen Conway; Pierre Gravelle; Brian Dawe
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 17 September 2008
- Procedural Posture
- Civil / Appeal From Superior Court Judgment (motion to Strike/refusal of Leave to Amend)
- Outcome
- Appeal dismissed; motion judge's order upheld; respondents awarded costs.
- Legal Topics
- Amendment of Pleadings, Motion to Strike, Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joe Hester
Appellant
Her Majesty the Queen in right of Canada; Minister of National Revenue; Minister of Indian Affairs; Commissioner of Customs and Revenue; Bill McCloskey; Robert Frappier; Michael Cox; Winford Smith; Denis Lefebvre; K.M. Burpee; Ken Fox; John Fennelly; Jeanne Flemming; Luisa Guyan; Ruby Howard; Ken McCuaig; Aileen Conway; Pierre Gravelle; Brian Dawe
Respondent
Procedural Posture
Civil / Appeal From Superior Court Judgment (motion to Strike/refusal of Leave to Amend)
Legal Issues
- 1 Whether the motion judge erred in refusing leave to amend the statement of claim
- 2 Whether the motion judge's use of language indicative of a motion to strike affected jurisdiction or the correctness of the order
- 3 Whether the struck proposed pleading and causes of action could be reintroduced in another pleading
Ratio Decidendi
The motion judge did not err: the jurisdiction argument lacked merit, the distinction between refusal of leave and striking without leave was immaterial in the circumstances, and the proposed amended paragraphs and causes of action as presented were properly excluded; the appeal is dismissed and costs awarded to the respondents.
Court Disposition
Appeal dismissed; motion judge's order upheld; respondents awarded costs.
Orders
- Appeal dismissed
- Order of Lax J. striking specified paragraphs and causes of action in the draft fresh as amended statement of claim without leave to amend is upheld
Full Case Text
Judgment text and source record
1 paragraphs
Hester v. Canada Collection Decisions of the Court of Appeal Date 2008-09-17 Neutral citation 2008 ONCA 634 Docket numbers C48177 Judges Winkler, Warren Keith; Lang, Susan Elizabeth; MacFarland, Jean Louise Subject Civil Decision Content CITATION: Hester v. Canada , 2008 ONCA 634 DATE: 20080917 DOCKET: C48177 COURT OF APPEAL FOR ONTARIO Winkler C.J.O., Lang and MacFarland JJ.A. BETWEEN: Joe Hester Plaintiff (Appellant) and Her Majesty the Queen in right of Canada, Minister of National Revenue, Minister of Indian Affairs, Commissioner of Customs and Revenue, Bill McCloskey, Robert Frappier, Michael Cox, Winford Smith, Denis Lefebvre, K.M. Burpee, Ken Fox, John Fennelly, Jeanne Flemming, Luisa Guyan, Ruby Howard, Ken McCuaig, Aileen Conway, Pierre Gravelle and Brian Dawe Defendants (Respondents) Eric Lay for the appellant John N. Birch for the defendants Heard and orally released: September 4, 2008 On appeal from the judgment of Justice Joan L. Lax of the Superior Court of Justice dated December 4, 2007. ENDORSEMENT [1] This is an appeal from the order of Lax J. striking without leave to amend certain paragraphs and causes of action in a draft fresh as amended statement of claim. There is no merit to the jurisdiction argument. While the motion was brought pursuant to Rule 26 seeking leave to amend the statement of claim and the motion judge expressed her reasons in language suggestive of a motion to strike, in our view, this is immaterial. The moving party sought their relief by filing a draft fresh as amended statement of claim which contained the proposed amendments. That is to say, in the form of a document already amended. [2] In the circumstances, we view this as really a distinction without a difference. The language used is immaterial in the circumstances here. Whether leave to amend is refused or the proposed amended paragraphs struck without leave to amend the result is the same. The proposed pleading and causes of action which the motion judge struck are not available to the moving parties. They could not be raised again in any other revised pleading. [3] As for the other grounds raised, we agree with the motion judge for the reasons she gave and the appeal is dismissed. [4] The respondents are entitled to their costs of the appeal fixed in the sum of $9,000.00 inclusive of disbursements and G.S.T. “Winkler C.J.O.” “S. E. Lang J.A.” “J. MacFarland J.A.”