COURT OF APPEAL FOR ONTARIO
DATE: 20000420
DOCKETS: M25380
(M24123)
RE: LEWIS JOSEPH SPITERIE (Plaintiff/Applicant) –and–
UPDATE MANAGEMENT LIMITED, DEAN F. MANK and PAUL
CAROLINE (Defendants/Respondents)
BEFORE: CARTHY, LASKIN and ROSENBERG JJ.A.
COUNSEL: Lewis J. Spiterie, the appellant in person
B.A. Percival, Q.C., for the respondents Update
Management Limited and Dean F. Mank
H. Christie for the respondent Paul Caroline
HEARD: April 18, 2000
E N D O R S E M E N T
[1] This is a motion to review the decision of Feldman J.A.
refusing an extension of time to appeal the judgment of Jarvis J.
dismissing two actions brought by the applicant. The two actions
were tried together. The first action arose out of a motor
vehicle accident that occurred on January 7, 1987. It was
commenced by a statement of claim issued on January 3, 1989. The
defendants to that action were Update Management Limited and Dean
F. Mank. Liability was admitted and the only issue was damages.
The second action was commenced on June 30, 1994. It arose out
of an earlier motor vehicle accident in 1982. The applicant’s
claim respecting the 1982 accident settled in the course of a
trial before Rutherford J. and a jury in 1988. The applicant’s
lawyer at this trial was Paul Caroline. The applicant commenced
the second action against Mr. Caroline, claiming that he was
negligent in his representation of the applicant.
[2] Jarvis J. dismissed the two actions with costs in reasons
dated May 14, 1998. In June 1998, the applicant’s then counsel
wrote to counsel for the defendants proposing that no appeal
would be filed if the defendants would not seek their costs. The
defendants refused. Further submissions were made to Jarvis J.
and on November 24, 1998 the judgment was finalized. On April 1,
1999, the applicant filed a notice of motion seeking an extension
of time to appeal the decision of Jarvis J. That motion came on
for hearing before Feldman J.A. on June 29, 1999. She reserved
judgment and on July 13, 1999 dismissed the motion.
[3] Feldman J.A. gave the applicant the benefit of the doubt
that he had formed an intention to appeal within the appeal
period and had explained the delay. She dismissed the motion
because the appeal lacked sufficient merit. As she said, the
appeal essentially concerned findings of fact and she could see
“virtually no possibility of success on an appeal based on the
record before me”.
[4] The applicant brought a motion before this court to review
the order of Feldman J.A. on November 28, 1999. Thus, there is
once again a serious delay. Some of the delay is attributable to
the fact that the applicant first attempted to review the
decision of Feldman J.A. by a motion for leave to appeal to the
Supreme Court of Canada. While we have some concerns about the
applicant’s explanation for the delay in launching his original
application for an extension of time and then applying for the
review, we too would give the applicant the benefit of the doubt
on those issues. We see no basis for overturning Feldman J.A.’s
assessment of the merits of the appeal.
[5] In his submissions before this court, Mr. Spiterie attempted
to demonstrate that there was merit to his appeal. His
submissions focused primarily on the reasons of Jarvis J. in
dismissing the claim against Update Management et al. At the
conclusion of Mr. Spiterie’s oral argument we did not call upon
counsel for Mr. Caroline. In our view, there was no basis upon
which the applicant could succeed on the appeal from the
dismissal of that action.
[6] With respect to the appeal from dismissal of the claim
against Update Management et al., Mr. Spiterie challenged the
findings of credibility by Jarvis J. and argued that he failed to
consider medical evidence that favoured his position that he
suffered injuries in the 1987 accident. We have carefully
reviewed the record placed before this court by the applicant,
and while we would not adopt all of the reasons of Jarvis J., in
our view, the applicant has not demonstrated that his proposed
appeal has any chance of success.
[7] Jarvis J. gave several different reasons for finding that
the applicant was not a credible witness. One of those reasons
concerned the applicant withholding the existence of the action
against Mr. Caroline at the abortive trial of the 1987 accident
before Winkler J. in April 1995. It is not clear from this
record why the failure to disclose the existence of the Caroline
action should have affected the applicant’s credibility. The
applicant had been represented by counsel before Winkler J. and
that counsel was aware of the Caroline action. However, as we
have indicated, the trial judge gave several other reasons for
rejecting the applicant's evidence. Those reasons went directly
to the issue of damages and were compelling. There is no
possibility that this court would interfere with the trial
judge’s findings of credibility.
[8] We are also of the view that the applicant’s submission
concerning medical evidence cannot succeed. The medical opinions
depended upon the history provided by the applicant to his
physicians. For example, the applicant did not initially inform
Dr. Leung of the second accident. While the applicant attempted
to explain why he did not do so, it was for the trial judge to
decide whether this explanation was worthy of credit. In his
submissions before us, the applicant did not suggest that the
trial judge had misapprehended this evidence. It was also open
to the trial judge to refuse to accept the opinions of the other
physicians because the applicant had not provided them with an
accurate history of his symptoms. The reports upon which the
applicant now relies and to which the trial judge did not refer
suffer from similar frailties.
[9] To conclude, we agree with Feldman J.A. that this case
turned upon issues of credibility and findings of fact and that
there is virtually no possibility of success.
[10] Accordingly, the application is dismissed with costs.
Signed: "J.J. Carthy J.A."
"John Laskin J.A."
"M. Rosenberg J.A."