DATE: 20010619 DOCKET: C35185
COURT OF APPEAL FOR ONTARIO
RE:
THE TORONTO DOMINION BANK (Plaintiff) – and – GERALD BURLINGTON (Defendant (Respondent)) – and – A. KRISTIN SCYTHES (Third Party (Appellant)) – and – GERALD D. BURLINGTON (Defendant to the Counterclaim (Respondent))
BEFORE: CATZMAN, GOUDGE AND SIMMONS JJ.A.
COUNSEL: Kristin Scythes (In person) For the appellant
Jaki Freeman For the respondent Gerald D. Burlington
HEARD: June 8, 2001
On appeal from the judgment of Justice Peter C. Jarvis dated September 21, 2000.
E N D O R S E M E N T
Released Orally June 8, 2001
[1] At the opening of the appeal the respondent tendered an affidavit by way of fresh evidence. We have not found it necessary to refer to that affidavit in disposing of this matter.
[2] The issues before Jarvis J. were whether Miss Scythes could amend her claim against Mr. Burlington; whether she could add Golden Sunrise Developments Ltd. and the City of Toronto as defendants to that claim and whether Mr. Burlington has shown that her claim against him discloses no genuine issue for trial.
[3] Jarvis J. found on the material before him that the claims Miss Scythes seeks to make against Sunrise and the City were prescribed by the limitation period. She failed to demonstrate before Jarvis J. that her complaints were not discoverable in 1991. He found that her counsel conceded that virtually all of these were prescribed. Jarvis J. found the same concerning the claims she seeks to add against Mr. Burlington.
[4] Jarvis J. found that the dismissal of her counterclaim for negligence in the small claims proceeding now prevents her from pursuing the same claim in the proceedings brought by Mr. Burlington.
[5] Finally, Jarvis J. found that there was no genuine issue for trial against Mr. Burlington because her contract was with Sunrise. Fundamentally, as a matter of law, Miss Scythes’ legal relationship was with Sunrise not Mr. Burlington.
[6] We have examined the material before Jarvis J. and can find no basis for interfering with his conclusions.
[7] The appeal must therefore be dismissed with costs.
“M. A. Catzman J.A.”
“S.T. Goudge J.A.”
“J. Simmons J.A.”