Court of Appeal for Ontario
BEFORE: O’Connor A.C.J.O., Cronk and Rouleau JJ.A.
BETWEEN
Alan Lee (also known as Edward Alan Lee)
Plaintiff (Appellant)
and
Cindy Lee and Dr. Michael Chernick
Defendants (Respondent)
COUNSEL:
Alan Lee, in person
Amanda M. Chapman, for the respondent
Heard and released orally: July 6, 2011
On appeal from the order of Justice Paul Perell of the Superior Court of Justice, dated August 17, 2010.
ENDORSEMENT
1We agree with the motion judge, for the reasons outlined by him at paragraph 4 of his reasons, that the appellant was precluded from proceeding with this tort claim against his former wife.
2The final settlement of the matrimonial litigation between the parties, achieved at a time when the appellant knew and relied on the material facts surrounding the respondent’s conduct now complained of, is a full answer to the appellant’s tort action against the respondent. The appellant knew, at the time of the matrimonial litigation, all the facts necessary to advance this tort claim against the respondent. He failed to pursue this claim or to reserve his future right to do so when finally settling the matrimonial litigation. In these circumstances, no genuine issue requiring a trial exists.
3The appeal is dismissed. The respondent is entitled to her costs of the appeal fixed in the amount of $3,000, inclusive of disbursements and applicable taxes.
“D. O’Connor A.C.J.O.”
“E.A. Cronk J.A.”
“Paul Rouleau J.A.”