DATE: 20040209

DOCKET: C40306

COURT OF APPEAL FOR ONTARIO

RE:

GABOR L. ZSOLDOS (Appellant (Plaintiff)) – and – ONTARIO ASSOCIATION OF ARCHITECTS, HILLEL ROEBUCK, BRIAN WATKINSON, PAUL MARTEL, FRANK CAMENZULI, CHRISTOPHER SHEPHERD, DAVID CROFT and CHARLES GREENBERG (Respondents (Defendants))

BEFORE:

LASKIN, SIMMONS AND ARMSTRONG JJ.A.

COUNSEL:

Gabor Zsoldos in person

P. John Brunner

for the respondent

HEARD:

February 5, 2004

On appeal from the judgment of Justice Hugh O’Connell of the Superior Court of Justice dated June 12, 2003.

E N D O R S E M E N T

[1] On May 13, 2002, Wright J. stayed the appellant’s action against the respondents because the appellant failed to pay a series of costs awards relating primarily to other proceedings. He then dismissed the action, finding that it was frivolous and vexatious. The appellant moved under rules 37.14(1)(a), 37.14(1)(b) and 59.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for an order setting aside the order of Wright J. On June 12, 2003, O’Connell J. refused the appellant’s request that he be permitted to examine Mr. Barniske, a court administrator, as a witness on the motion and also dismissed the appellant’s motion. This is an appeal from the order of O’Connell J. In addition, the appellant requests leave to introduce fresh evidence on appeal.

[2] In our view, the appellant has not met the test for filing fresh evidence on appeal. The evidence that the appellant seeks to introduce relates primarily to his submission that he is impecunious and to circumstances that post-date the order of O’Connell J. Aside from the issue of the costs of the motion before O’Connell J., the question of whether the appellant is impecunious is not relevant to the matters that were in issue on the motion, namely the specific tests under rules 37.14(1)(a), 37.14(1)(b) and 59.06. The proposed evidence therefore is not relevant to, nor potentially decisive of, any issue on this appeal. The appellant’s request to introduce fresh evidence is accordingly dismissed.

[3] We see no merit in the appellant’s submissions concerning his appeal of O’Connell J.’s order. The motion judge gave thorough reasons and concluded, correctly, that he was not entitled, on a motion to set aside a final order, to consider issues properly dealt with by way of appeal, such as alleged errors in law, or bias, on the part of Wright J. Moreover, as we read his reasons, the motion judge accepted the appellant’s statement of Mr. Barniske’s proposed evidence. The motion judge did not therefore err in refusing to permit the appellant to examine Mr. Barniske as a witness.

[4] As for the appellant’s submission that the motion judge erred in finding that he had not met the requirements of any of the rules permitting a final order to be set aside, we note that the motion dealt with by Wright J. had been pending since January 2000. The appellant was aware that Wright J. had set a hearing date for the motion and, in fact, had confirmed that he was available on the date that was set. In these circumstances, we agree with O’Connell J.’s reasons and his conclusions that rule 37.14(1)(a) was not applicable; that the appellant failed to attend the motion before Wright J. “because he decided not to do so for his own reasons” and not because of mistake, accident or insufficient notice; and that the appellant had not established fraud, or facts arising or discovered after the motion, capable of justifying an order to set aside the order of Wright J.

[5] The appeal is accordingly dismissed with costs fixed at $10,000 inclusive of disbursements and applicable G.S.T. In accordance with the directions of the list judge, the appellant’s motion for an order extending the time to appeal the order of Wright J. is adjourned to no fixed date returnable on three days notice before a single judge of this court sitting in chambers.

“John Laskin J.A.”

“Janet Simmons J.A.”

“Robert Armstrong J.A.”