Access legal Services Professional Corporation v. Padjen, 2010 ONCA 669

CITATION: Access legal Services Professional Corporation v. Padjen, 2010 ONCA 669

DATE: 20101018

DOCKET: C51914

COURT OF APPEAL FOR ONTARIO

Blair, Juriansz and LaForme JJ.A.

BETWEEN

Access Legal Services Professional Corporation and Aliamisse Mundulai

Plaintiffs (Appellant)

and

Mirjana Padjen

Defendant (Respondent)

Aliamisse Mundulai, in person L. Leslie Dizgun, for Access Legal Services Professional Corporation

Jan-Paul Waldin, for the defendant/respondent

Heard & released orally: October 8, 2010

On appeal from the judgment of Justice Patricia C. Hennessy of the Superior Court of Justice dated March 8, 2010.

ENDORSEMENT

[1] This appeal is utterly devoid of any merit. At the time of the motion for summary judgment, Mr. Mundulai and Access Legal Services were seeking to recover on the basis of a written contingency retainer agreement with the respondent. Mr. Mundulai was not a party to the alleged agreement. The respondent had retained Access Legal Services to represent her and Access had contracted with Mr. Mundulai to perform certain of the services.

[2] The motion judge dismissed both claims on a motion for summary judgment. Access has abandoned its appeal leaving Mr. Mundulai as the sole appellant.

[3] The motion judge was correct to dismiss Mr. Mundula’s claim. Pursuant to a Request to Admit, to which he did not respond, Mr. Mundulai was deemed to admit certain facts. One was that there was nothing further owing to either plaintiff by the defendant for any reason. (The respondent had paid $21,992.05 to Access)

[4] Mr Mundulai did not move for leave to withdraw these and other admissions and the motion judge, noting that there was no evidence of any facts to establish leave to withdraw the admissions, refused to allow them to be withdrawn at the hearing.

[5] The admission of this fact alone is sufficient to establish there was no genuine issue for trial, including a personal equitable claim on behalf of Mr. Mundulai, assuming it was available.

[6] The preamble to the motion judge’s formal order confirms that the summary judgment motion was heard together with another motion before the Master that had been adjourned to her on consent.

[7] We see no error in her disposition of costs including the fixing of costs for that motion.

[8] Mr. Mundulai’s appeal is dismissed.

Costs

[9] Mr. Dizgun proposes that costs of Access’ abandoned appeal be fixed at $7,000 plus HST. Mr. Waldin has no instructions but signals that he thinks that that amount is reasonable. We fix the costs of the abandoned appeal against Access in the total amount of $7,000 inclusive of disbursements plus HST.

[10] There are some troubling aspects about the way this appeal has been proceeded with. Mr. Mundulai was responsible for the appeal on his own behalf and on behalf of Access until Access served a notice of change of solicitors on September 28, 2010. In all the circumstances – including the absence of any merit in the appeal and the matters referred to above – we fix the costs of the Mundulai appeal against Mr. Mundulai personally on a substantial indemnity basis in the amount of $13,000 inclusive of disbursements and any applicable taxes.

“R.A. Blair J.A.”

“R.G. Juriansz J.A.”

“H.S. LaForme J.A.”