DATE: 20060721

DOCKET: C43041

COURT OF APPEAL FOR ONTARIO

RE:

BONO GENERAL CONSTRUCTION LIMITED, CARMELO BONO, ANNE BONO and SALVATORE (SAM) BONO (Applicants (Respondents)) – and – JOHN SUSIN (Respondent (Appellant))

BEFORE:

GILLESE, LANG and MacFARLAND JJ.A.

COUNSEL:

John Susin

in person

Anne Bono, Carmelo Bono, and Salvatore (Sam) Bono

in person

HEARD & RELEASED ORALLY:

July 18, 2006

On appeal from the judgment of Justice Barry H. Matheson of the Superior Court of Justice dated January 6, 2005.

E N D O R S E M E N T

[1] This appeal challenges the judgment of Matheson J. made under s. 140 of the Courts of Justice Act that, in essence, declares the appellant to be a vexatious litigant. The appellant raises several grounds of appeal, which we deal with sequentially.

[2] First, the appellant argues that the respondents, as undischarged bankrupts, lacked the status to bring this application. This ground of appeal cannot succeed because the relief sought by the respondents does not deal with their property but rather is personal in nature.

[3] Second, the appellant argues that the application judge erred in refusing his request for an adjournment for the purposes of cross-examination and, as well, in ordering an interim stay of various outstanding matters pending determination of the s. 140 application. In our view, the orders made by the application judge were within his discretion and ensured that the proceeding would focus appropriately on the s. 140 issue rather than on the merits of other proceedings.

[4] Third, the appellant argues that the application judge erred in failing to find that the respondents misled the court as to when they received the Welland statement of claim. Apart from the re-arguing of an issue already determined in an earlier proceeding, this issue was of no relevance to the circumstances of the vexatious litigant application.

[5] Fourth, we do not agree that the respondents required leave to bring their s. 140 application. Clearly they did not require leave once the default judgment was set aside.

[6] Fifth, the appellant argues that the application judge erred in granting the s. 140 order on the basis of the evidence presented. We disagree. There was an abundance of evidence to support the application judge’s finding that, since 1991, the appellant persistently and without reasonable grounds instituted vexatious litigation. Although the appellant experienced success in one appeal, that was an exception. The evidence otherwise established that the appellant brought a significant number of unsuccessful proceedings followed by unsuccessful appeals. In addition, he regularly relitigated issues and left numerous costs orders unpaid.

[7] Finally, the appellant argues that the application judge erred in not only making a s. 140 order with respect to any future proceedings but also making such an order with respect to the continuation of outstanding proceedings. In our view, the relief requested in the notice of application was sufficiently broad to ground the remedy granted. As well, we note that the application judge signed the judgment personally; it is clear to us that paragraph 2 of that judgment falls within the intended ambit of the application judge’s reasons.

[8] In conclusion, as the appellant cannot succeed on his grounds of appeal, the appeal is dismissed.

[9] The respondents are entitled to their costs of this appeal fixed at $10,000 inclusive of GST and disbursements.

“E.E. Gillese J.A.”

“S.E. Lang J.A.”

“J. MacFarland J.A.”