DATE: 20050408

DOCKETS: C42598, M31858

COURT OF APPEAL FOR ONTARIO

RE:

MARK THOMAS DONAGHY (Plaintiff/Appellant) -and- SCOTIA CAPITAL INC./SCOTIA CAPITAUX INC. and THE BANK OF NOVA SCOTIA (Defendants/Respondents)

BEFORE:

CATZMAN, ROSENBERG and JURIANSZ JJ.A.

COUNSEL:

Mark Donaghy the appellant in person

Jeremy Devereux for the respondents

HEARD AND ENDORSED:

April 6, 2005

On appeal from the judgment of Justice Andromache Karakatsanis of the Superior Court of Justice dated November 3, 2003 and May 19, 2004.

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

1. MOTION TO ADDUCE FRESH EVIDENCE

[1] In our view, the moving party has, with the exception of the credibility requirement, established none of the other prerequisites for the admission of the proposed fresh evidence on this appeal. In particular, all of the proposed fresh evidence, though arguably pertinent to procedures available under the Canada Labour Code, could not reasonably, when taken with the other evidence adduced before Karakatsanis J., be expected to have affected the result.

[2] The motion to admit fresh evidence is dismissed.

2. THE APPEAL

[3] The issue before the motion judge was a motion for judgment based on a settlement of the appellant’s civil action against the respondents. Karakatsanis J. granted the motion.

[4] On the appellant’s motion to set aside or vary her judgment, Karakatsanis J. did not accept the evidence that the appellant tendered because it was generic and did not address his claim for overtime with any specificity. She found that it did not establish bad faith and was insufficient to suggest that the settlement was incapable of satisfying any potential claim for overtime.

[5] The motion judge made no palpable and overriding error in her disposition of the motion to enforce the settlement or the motion to set aside her judgment.

[6] Accordingly, the appeal is dismissed.

[7] Having regard to our disposition of the appeal, it is not necessary to deal with the motion to quash.

[8] The appeal is dismissed with costs. We fix the costs of the respondents of the appeal and of all motions in connection with the appeal in the amount of $10,000, inclusive of disbursements and G.S.T.