Scherer v. Gates

Scherer v. Gates

The motions judge correctly concluded there was no genuine issue for trial and properly granted summary judgment which operated as res judicata in favour of the defendants; however the motions judge lacked jurisdiction to make an order respecting the costs of the June 1998 motion because Wallace J.'s order remained in effect, so paragraph 2 of the formal judgment was set aside while the remainder of the appeal was dismissed.

Citation
C34902
Parties
Plaintiff (appellant): Steven Scherer; Defendant (respondent): Peter D. Gates; Defendant (respondent): 826534 Ontario Limited; Defendant (respondent): Recreational Adventures Inc.
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
16 February 2001
Procedural Posture
Civil / Appeal From Summary Judgment (court of Appeal)
Outcome
Appeal allowed in part and dismissed in part: paragraph 2 of the formal judgment set aside; remainder of appeal dismissed.
Legal Topics
Summary Judgment, Discontinuance (rule 23), Res Judicata, Costs (solicitor and Client), Jurisdiction to Make Costs Orders
Source Language
English
Civil Procedure Appeal Costs Res Judicata Summary Judgment Jurisdiction Discontinuance (rule 23) Costs (solicitor and Client) +1 more

Case Brief

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Parties

Steven Scherer

Plaintiff (appellant)

Peter D. Gates

Defendant (respondent)

826534 Ontario Limited

Defendant (respondent)

Recreational Adventures Inc.

Defendant (respondent)

Procedural Posture

Civil / Appeal From Summary Judgment (court of Appeal)

Legal Issues

  1. 1 Whether there was a genuine issue for trial sufficient to defeat summary judgment
  2. 2 Whether the motions judge could proceed with summary judgment notwithstanding the plaintiff's motion to discontinue under Rule 23
  3. 3 Whether summary judgment constituted res judicata in favour of the defendants

Ratio Decidendi

The motions judge correctly concluded there was no genuine issue for trial and properly granted summary judgment which operated as res judicata in favour of the defendants; however the motions judge lacked jurisdiction to make an order respecting the costs of the June 1998 motion because Wallace J.'s order remained in effect, so paragraph 2 of the formal judgment was set aside while the remainder of the appeal was dismissed.

Court Disposition

Appeal allowed in part and dismissed in part: paragraph 2 of the formal judgment set aside; remainder of appeal dismissed.

Orders

  • Paragraph 2 of the formal judgment is set aside.
  • The balance of the appeal is dismissed.