DATE: 20010117

DOCKET: C33532

COURT OF APPEAL FOR ONTARIO

RE: DONALD B. MOSHER (Appellant/Plaintiff) –and– HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO (Respondent/Defendant)

BEFORE: WEILER, LASKIN and CHARRON JJ.A.

COUNSEL: Donald B. Mosher, the appellant in person Elaine Atkinson, for the respondent

HEARD: January 12, 2001

RELEASED ORALLY: January 12, 2001

On appeal from the order of Justice Erwin W. Stach dated December 21, 1999.

E N D O R S E M E N T

[1] The appellant, Mr. Mosher, sought various relief against the respondent, Her Majesty the Queen, by notice of motion and his motion was dismissed in its entirety. In our view, the motions judge was correct in dismissing the motion in all respects.

[2] First, the motions judge refused to enjoin Her Majesty the Queen from entering upon certain disputed lands. Whether or not the land where Mr. Mosher erected a gate is included in the metes and bounds description in the certificate of pending litigation, the motions judge was correct in finding that Mr. Mosher does not thereby acquire any right to the land. Mr. Mosher cannot on the strength of a certificate of pending litigation obtain an order restraining the respondent from entering upon these lands.

[3] In addition, in his factum before this court, Mr. Mosher sought an order permitting him to reconstruct the gate and gatehouse. In light of the dispute over the title of the lands and the fact that the respondent presently holds title to the land, no such order can be made until the dispute is resolved at trial.

[4] Second, Mr. Mosher sought damages for the wrongful removal and destruction of his gate. The motions judge was quite correct in finding that there is no authority to grant damages on a motion such as this one and this part of the motion was properly dismissed.

[5] Third, Mr. Mosher sought an order permitting him to search the Ministry’s records. Again, we see no reason to interfere with the motions judge’s finding that Mr. Mosher had not satisfied him that the Crown had failed to comply with its disclosure obligations.

[6] Finally, Mr. Mosher sought leave to amend his statement of claim to plead conspiracy to victimize and to add a claim for punitive damages. The motions judge refused to grant leave on the ground that the proposed amendments would bring in matters that are “manifestly irrelevant”. Mr. Mosher has not satisfied us that the motions judge erred in the exercise of his discretion. The facts relied upon in support of the proposed amendments, as set out in the appellant’s supplementary affidavit, are not related to the subject-matter of the action. Given that the action is ready for trial, these matters, if they are to be litigated in civil court, should form part of a separate proceeding if Mr. Mosher is so advised to bring one.

[7] The appeal is therefore dismissed with costs fixed at $250.

(signed) “K. M. Weiler J.A.”

(signed) “John Laskin J.A.”

(signed) “Louise Charron J.A.”