DATE: 20040305

DOCKET: C39148

COURT OF APPEAL FOR ONTARIO

RE:

OBSESSIONS DRESS DESIGNS LTD. and ATHINA SMYRNIOTIS (Plaintiffs/Respondents) – and – CATHERINE TULLY, WALTER ORLOW, ATHINA’S BRIDAL BOUTIQUE INC. and 1331248 ONTARIO INC. (Defendants/Appellants)

BEFORE:

GILLESE, ARMSTRONG and BLAIR JJ.A.

COUNSEL:

Enzo Di Iorio

for the appellants

Michael Simaan

for the respondents

HEARD & ENDORSED:

March 4, 2004

On appeal from judgment of Justice Ruth E. Mesbur of the Superior Court of Justice dated October 31, 2002.

A P P E A L B O O K E N D O R S E M E N T

[1] The appellants were self‑represented at trial. They ask this court to set aside the judgment following trial on the basis that the trial judgment erred in:

(1) failing to grant them an adjournment to allow them to retain legal counsel; or

(2) failing to impress upon them the fact that evidence offered from counsel table was not admissible.

[2] We reject both arguments.

(1) The transcript shows that the appellants did not request an adjournment. The trial judge cannot be faulted for failing to grant one. By filing the Notice of Intention to Act in person and by the appellant Orlow’s request to represent the appellants, it appeared that the appellants were ready and willing to proceed with the trial.

(2) Although the second ground was not pursued in oral argument, we would respond by noting that the record is replete with warnings from the trial judge to the appellants of the necessity of giving evidence from the witness box and that she could not accept evidence given from the counsel table.

[3] At the hearing of the appeal, the appellants argued that Mesbur J. erred in the way in which she dealt with the parties respective obligations for one group of bridal gowns. On the evidence before her, the trial judge was entitled to conclude, as she did, that the appellants as purchasers were responsible for the payables associated with that group of gowns.

[4] We would dismiss the motion to admit fresh evidence on the basis that, with due diligence, the evidence could have been adduced by the appellants. Once the appellants legal counsel removed himself, the appellants could have sought other legal advice. Instead, they chose to go to trial self‑represented. Moreover, the proposed fresh evidence does not bear upon a potentially decisive issue.

[5] Accordingly, the appeal is dismissed with costs to the respondents fixed at $2500.