COURT OF APPEAL FOR ONTARIO
Strathy CJO, Rouleau and Hourigan JJ.A.
BETWEEN
Michael Faklan operating as Faklan Health Services
Plaintiff/Appellant
and
Stanislaw Niewiadomski and Zofia Niewiadomski
Defendants/Respondents
Paul R. Sweeny, for the plaintiff/appellant
Robert B. Lilly, for the defendants/respondents
Heard: October 7, 2014
On appeal from the order of Justice J.A. Ramsay of the Superior Court of Justice, dated March 20, 2014.
APPEAL BOOK ENDORSEMENT
1The appellant appeals the motion judge’s order refusing to set aside the Registrar’s dismissal of his action for delay.
2In brief oral reasons, the motion judge correctly identified the applicable test in Reid v. Dow Corning Corp (2001), 11 CPC (5th) 809 at para. 41, rev’d (2002), 48 CPC (5th) 93. He rejected the hearsay evidence of the appellant’s solicitor as to the reasons for the delay and as to why the motion was not brought promptly. He also found that there was no evidence to establish the absence of prejudice, other than the “bald assertion” of the deponent.
3These conclusions were open to him. The affidavit of the appellant’s solicitor was clearly based on information and belief, but, contrary to rule 39.01(4), it failed to state the source of the information. It contained conclusory assertions as to the cause of the dismissal of the action, the length of delay and the absence of prejudice, all of which were devoid of any evidentiary foundation. The motion judge was entitled to find that this did not discharge the onus on a party seeking to set aside the dismissal of the action.
4The motion judge’s decision was discretionary and in the absence of error, we cannot interfere: Gordon Gravelle (CodePro Manufacturing) v. Denis Grigoras Law Office, 2013 ONCA 339 at para. 5. There is no basis in which to do so in this case. The appeal is therefore dismissed.
5Costs to the respondents fixed at $6500.00 all inclusive.
