DATE: 20040706

DOCKET: C39749

COURT OF APPEAL FOR ONTARIO

RE:

DEBORAH LYNN SIEGERT (Applicant) – and – RICHARD JOHN SIEGERT (Respondent)

AND BETWEEN:

GUNTER RICHARD SIEGERT and IRENE SIEGERT (Plaintiffs (Appellants)) – and – RICHARD JOHN SIEGERT and DEBORAH LYNN SIEGERT (Defendants (Respondents))

AND BETWEEN:

RICHARD GUNTER SIEGERT and IRENE SIEGERT (Plaintiffs (Appellants)) – and – DEBORAH LYNN SIEGERT, PETER MICHAEL SIEGERT and RICHARD JOHN SIEGERT (Defendants (Respondents))

BEFORE:

ABELLA, MOLDAVER and BORINS JJ.A.

COUNSEL:

Margaret A. Hoy

for Irene and Gunther Siegert et al

Timothy Pedwell

for Deborah L. Siegert

HEARD AND ENDORSED:

July 5, 2004

On appeal from the judgment of Justice P.M. Forestell of the Superior Court of Justice dated February 5, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] The evidence of the handwriting expert was critical to the appellant’s case. With respect, we are of the view that that evidence was misapprehended by the trial judge, particularly his findings that “the expert never examined the original documents and the comparisons that were used were inaccurate. The trial judge also failed to adequately assist the unrepresented appellants so as to ensure trial fairness. In addition, he arbitrarily curtailed cross-examination that may have been relevant. In combination, we are concerned that the appellants did not receive a fair trial.

[2] Accordingly, a new trial is ordered, the judgment is set aside in part, and the order varied to reflect that the appeal is only in connection with the two mortgage actions. The judgment relating to Richard John Siegert and Peter Michael Siegert is not affected by this appeal.

[3] The trial costs order is similarly set aside as it relates to these parties. Costs of the appeal are fixed in the total amount of $7,500 in the cause.