Zabo v. University of Ottawa
The Court held the contract claim as pleaded could not possibly succeed and that in this exceptional, essentially academic case the motion judge properly struck the pleading under rule 25.11 and properly refused leave to file a fresh statement of claim; accordingly the appeal was dismissed.
Source-derived case information.
- Citation
- C41815
- Parties
- Appellant: Ndavo Zabo; Respondent: University of Ottawa
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 28 June 2005
- Procedural Posture
- Civil Appeal / Appeal From Superior Court Order (judgment of April 15, 2004)
- Outcome
- Appeal dismissed
- Legal Topics
- Striking Pleadings, Summary Judgment, Jurisdiction, Leave to Amend, Academic Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ndavo Zabo
Appellant
University of Ottawa
Respondent
Procedural Posture
Civil Appeal / Appeal From Superior Court Order (judgment of April 15, 2004)
Legal Issues
- 1 Whether the pleading disclosed a cause of action under rule 21.01(1)(b)
- 2 Whether relief could be granted for lack of jurisdiction under rule 21.01(3)(a)
- 3 Whether the motion judge properly struck the pleading under rule 25.11
Ratio Decidendi
The Court held the contract claim as pleaded could not possibly succeed and that in this exceptional, essentially academic case the motion judge properly struck the pleading under rule 25.11 and properly refused leave to file a fresh statement of claim; accordingly the appeal was dismissed.
Court Disposition
Appeal dismissed
Orders
- Appeal dismissed
- Motion judge entitled to strike the pleading under rule 25.11 and to refuse leave to file a fresh statement of claim as to the contract claim
Full Case Text
Judgment text and source record
1 paragraphs
Zabo v. University of Ottawa Collection Decisions of the Court of Appeal Date 2005-06-28 Docket numbers C41815 Judges Sharpe, Robert J.; Blair, Robert Ashley; Rouleau, Paul S. Subject Civil Decision Content DATE: 20050628 DOCKET: C41815 COURT OF APPEAL FOR ONTARIO RE: NDAVO ZABO (Appellant) – and – UNIVERSITY OF OTTAWA (Respondent) BEFORE: SHARPE, BLAIR and ROULEAU JJ.A. COUNSEL: Emilio Binavince for the appellant Debbie Orth for the respondent HEARD & ENDORSED: June 24, 2005 On appeal from the order of Justice Robert J. Smith of the Superior Court of Justice April 15, 2004. APPEAL BOOK ENDORSEMENT [1] The record before us is unclear as to precisely what procedure was followed. Ordinarily, the relief sought by the defendant would be pursued under rule 21.01(1)(b), that the pleading discloses no cause of action, or under Rule 20 as a motion for summary judgment. We are doubtful that relief could be granted under rule 21.01(3)(a) on the ground that the court has no jurisdiction. In the end, however, we are satisfied that this is one of those exceptional cases where the motion judge was entitled to strike the pleading under rule 25.11 as being so untenable in law having regard to the fact that the dispute is essentially an academic matter, and that the motion judge was entitled to refuse leave to file a fresh statement of claim with respect to the claim in contract. [2] We are satisfied, having reviewed this full record, that this claim as framed in contract could not possibly succeed. [3] Accordingly the appeal is dismissed. Costs to the respondent fixed at $2000 inclusive of GST and disbursements.