CITATION: McLennan & Associates v. Nicolaou, 2023 ONSC 3038
DIVISIONAL COURT FILE NO.: 22-549 DATE: 20230516
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
ARES NICOLAOU AN EXECUTOR OF THE ESTATE OF CATHERINE NICOLAOU Self-Represented Applicants / Respondents
– and –
McLENNAN & ASSOCIATES and ALEC McLENNAN Self-Represented Respondent / Appellant
HEARD at Toronto by ZOOM: May 16, 2023
REASONS FOR DECISION
D.L. CORBETT J. (Orally)
[1] With the greatest of respect to Mr. McLennan, we would dismiss this appeal substantially for the unreported oral reasons of Justice Myers, with whom we agree. The amount in dispute is modest, in terms of the costs of litigation, and it is long past time that this matter was concluded.
[2] The appellant solicitor refused to schedule the assessment and then did not appear at it. Before us, he argued that he had no notice of the hearing, and that he would have attended had he received notice. Notice is an important element of procedural fairness. On the record, it is clear that notice was sent to Mr. McLennan, to the email address used for scheduling communications by the Assessment Office. That address was effective both before and after the notice of hearing was given. Mr. McLennan’s factum before Justice Myers stated as follows:
Service of Notice of Hearing Not Effective
Service of the Notice of Hearing by the Toronto Assessment Office dated January 15, 2018 for a Hearing on May 8-10, 2019 was not effective on the Applicant as it is not certain it came to the attention or notice of the Applicant who was in hospital on or about this time and whose office relocated as did the Applicant to his home to recuperate in January, 2018 where he remains. Moreover, for the reasons outlined, the Toronto Assessment Office was without jurisdiction to issue it. Nor did the Respondents confirm proceeding on May 8, 2019 nor supply in advance or at all copies of documents intended by the Respondents to be introduced as evidence on May 8, 2019.
[3] Nowhere in this argument does Mr. McLennan allege that the email was not sent to his email address. On this basis, it is apparent that Mr. McLennan was not challenging the evidence in the Record about this notice being sent to him by email in January 2018, but rather was explaining why he might not have seen it at the time. On this issue, as it was raised before Justice Myers and on the record that was before Justice Myers, we see no palpable and overriding error below. Notice was given, and it was reasonable in all the circumstances for the Assessment Officer to have concluded that Mr. McLennan had withdrawn from the proceeding. No explanation has been provided by Mr McLennan as to why he did not check and read his email any time in fifteen months between notice and the scheduled dates for the hearing.
[4] For these reasons we would not give effect to the procedural fairness argument: notice was given by email and there is no reason to believe it did not appear in Mr McLennan’s email in-box. On the Record and on the basis of the case argued before Myers J., all that is not “certain” is whether Mr McLennan ever read the email. The appellant’s other arguments are addressed effectively in the reasons of Justice Myers.
[5] The appeal is dismissed, with agreed costs of $7,500, payable by the Appellant to the Respondent within 30 days.
“D.L. Corbett J.”
“Leiper J.”
“Muszynski J.”
Oral Reasons for Judgment: May 16, 2023
Date of Written Release: June 30, 2023
CITATION: McLennan & Associates v. Nicolaou, 2023 ONSC 3038
DIVISIONAL COURT FILE NO.: 22-549 DATE: 20230516
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
ARES NICOLAOU AN EXECUTOR OF THE ESTATE OF CATHERINE NICOLAOU Applicants/Respondents
– and –
McLENNAN & ASSOCIATES and ALEC McLENNAN Respondent/Appellant
ORAL REASONS FOR JUDGMENT
D.L. Corbett J.
Oral Reasons for Judgment: May 16, 2023
Date of Written Release: May 19, 2023