Court File and Parties

Citation: Kurdina v. Toronto (Police Services Board), 2009 ONCA 906 Date: 2009-12-18 Docket: C49880

Court of Appeal for Ontario Cronk, Blair and LaForme JJ.A.

Between

Galina Kurdina Plaintiff (Appellant)

and

Toronto Police Services Board, Attorney General of Canada, Lei Chen, Unknown Institution, Rengxian Li, Doctor Sara Pliamm, Doctor Naomi Pliamm, Doctor Lew Pliamm Defendants (Respondents)

Counsel: Galina Kurdina, in person Robin A.F. Squires, for the Toronto Police Services Board Byron Shaw, for Drs. Pliamm Rina M. Li, for the Attorney General of Canada

Heard: December 15, 2009

On appeal from the order of Justice Romain Pitt of the Superior Court of Justice, dated December 16, 2008.

Appeal Book Endorsement

[1] While we accept that the appellant sincerely believes the matters complained of, we see no basis on which to interfere with the motion judge’s decision. We agree with the motion judge’s conclusions that the appellant’s current fresh amended pleading fails to disclose a reasonable cause of action and, further, that it fails to comply with the rules of pleading as set out under the Rules of Civil Procedure.

[2] We note that the appellant was previously afforded an opportunity to file a fresh statement of claim to cure the deficiencies in her original pleading. As we have said, her fresh pleading fails to do so. In these circumstances, we also agree with the motion judge that no attempt to amend the pleading could realistically repair its fatal deficiencies.

[3] Finally, the appellant’s fresh evidence does not meet the test for admission set out under Sengmueller v. Sengmueller, 1994 CanLII 8711 (ON CA), [1994] O.J. No. 276. The evidence now sought to be introduced could have been adduced prior to the hearing before the motion judge on the exercise of reasonable diligence. Further, the fresh evidence does not establish a cause of action against the relevant defendants. Accordingly, even if admitted, the fresh evidence would not likely be conclusive of any issue on appeal.

[4] The appeal is dismissed. In the particular circumstances of this case, we do not regard it as appropriate to award any costs of the appeal.