Aristocrat v. Aristocrat et al. [Indexed as: Aristocrat v. Aristocrat]

73 O.R. (3d) 275

[2004] O.J. No. 4031

Dockets: M31345 and C35337

Court of Appeal for Ontario,

Armstrong and Juriansz JJ.A. and Speyer J. (ad hoc)

October 6, 2004

*Application for leave to appeal to the Supreme Court of Canada was dismissed without costs May 19, 2005 (McLachlin C.J., Binnie and Charron JJ.)

Judgments and orders -- Setting aside -- Jurisdiction -- Court of Appeal not having jurisdiction to set aside order of Superior Court, affirmed on appeal, on basis of newly discovered evidence of fraud -- Motion should be brought in Superior Court.

The plaintiff wished to re-open and set aside an order of summary judgment granted by a Superior Court judge, which was affirmed by the Court of Appeal, on the basis of newly discovered evidence of fraud by the defendants. To accomplish this, he brought a motion pursuant to rule 59.06(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 to set aside the order of the Court of Appeal dismissing his appeal. The motion was dismissed by the deputy registrar for failure to file a motion record and factum within the required time, and the Chief Justice of Ontario dismissed the plaintiff's motion to set aside the order of the deputy registrar. The plaintiff moved before a full panel of the Court of Appeal to set aside the order of the Chief Justice. He also asked the panel to hear his original motion to set aside the order dismissing his appeal from the order of the Superior Court judge.

Held, the motion should be dismissed.

A motion to set aside an order of the Superior Court, affirmed on appeal, on the basis of newly discovered evidence of fraud should be brought in the Superior Court. Even if there was some basis to set aside the order of the Chief Justice, there would be no point to it as the original motion would of necessity be dismissed for lack of jurisdiction to entertain it.

MOTION to set aside an order of the Chief Justice of Ontario dismissing a motion to set aside an order of the deputy registrar.

R. v. Moura, 2003 46485 (ON CA), [2003] O.J. No. 460, 172 C.C.C. (3d) 340 (C.A.), apld [page276] Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 59.06(2) (a)

Michael Aristocrat, in person. Rima Aristocrat, in person.

Endorsement

[1] Endorsement BY THE COURT: -- Michael Aristocrat, the moving party, commenced an action against his former wife, Rima Aristocrat, and his daughter, Lali Aristocrat. Mr. Aristocrat asserted that his former wife and daughter illegally acquired the ownership of Willis Business College Limited.

[2] Mr. Aristocrat brought a motion for summary judgment which was dismissed by Métivier J. of the Superior Court of Justice on November 3, 2000 [[2000] O.J. No. 5703 (S.C.J.)]. A cross-motion by the defendants was successful and the action was dismissed. Mr. Aristocrat appealed to this court. His appeal was dismissed on July 3, 2001 [[2001] O.J. No. 2744 (C.A.)].

[3] Mr. Aristocrat has advised that he sought leave to appeal to the Supreme Court of Canada. However, his application for leave was dismissed when he failed to pay the required filing fees.

[4] At some time after the dismissal of his application for leave to appeal to the Supreme Court of Canada, Mr. Aristocrat claims that he discovered fresh evidence that his wife and daughter induced the Court of Appeal to dismiss his appeal by reason of "false, fabricated, fraudulent and perjured evidence". Mr. Aristocrat then brought a motion to set aside the order of the Court of Appeal dated July 3, 2001 pursuant to rule 59.06(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which provides that a party may move to set aside an order on the ground of fraud discovered after the order was made.

[5] On April 23, 2004, Mr. Aristocrat's motion was dismissed by the deputy registrar for failure to file a motion record and factum within the time required by the Rules.

[6] On May 18, 2004, the Chief Justice of Ontario dismissed Mr. Aristocrat's motion to set aside the order of the deputy registrar dated April 23, 2004.

[7] Mr. Aristocrat now moves before a full panel of the court to set aside the order of the Chief Justice of Ontario and for relief from the payment of court filing fees which have apparently been the cause of his failure to file his motion documents on time. He also raises a constitutional question in relation to the [page277] requirement to pay court fees. Mr. Aristocrat is on a disability pension and says he is impecunious.

[8] Mr. Aristocrat also requests this panel to hear his original motion to set aside the order of the court of July 3, 2001 dismissing his appeal from the order of Métivier J.

[9] Based upon his oral submissions and his response to questions from the court, it is apparent that Mr. Aristocrat's main concern is to re-open and set aside the original judgment of Métivier J. as a judgment obtained by fraud. In order to accomplish this, he has moved under rule 59.06(2)(a). The Court of Appeal has no jurisdiction to hear such a motion. Such motions should be brought in the action before a judge of the Superior Court. A similar issue arose in the context of a criminal case in R. v. Moura, 2003 46485 (ON CA), [2003] O.J. No. 460, 172 C.C.C. (3d) 340 (C.A.). While rule 59.06(2)(a) was not relevant in that case, Morden J.A. held that a motion to set aside an order of the Superior Court, affirmed on appeal, on the basis of newly discovered evidence of fraud should be brought in the Superior Court.

[10] Even if there was some basis to set aside the order of the Chief Justice (and we believe there is none), there would be no point to it as the original motion would of necessity be dismissed for lack of jurisdiction in this court to entertain it. There is no need to deal with the constitutional question as it has no relevance in view of the fact that we intend to dismiss the motion for the balance of the relief sought.

[11] The motion is therefore dismissed with costs to Ms. Aristocrat on a partial indemnity scale fixed at $500 inclusive of disbursements and Goods and Services Tax.

Motion dismissed.