Susin v. Eugene Goodreau and Goodreau Excavating Ltd., 2008 ONCA 165

CITATION: Susin v. Eugene Goodreau and Goodreau Excavating Ltd.,2008 ONCA 165

DATE: 20080307

DOCKET: C46915

COURT OF APPEAL FOR ONTARIO

DOHERTY, ROSENBERG and BLAIR JJ.A.

BETWEEN:

JOHN SUSIN

Plaintiff (Appellant)

and

EUGENE GOODREAU AND GOODREAU EXCAVATING LTD., PRECISION BUILDERS (WINDSOR) LIMITED, FIDELITY INSURANCE COMPANY OF CANADA and PASQUALE D’AMORE

Defendants, Eugene Goodreau and Goodreau Excavating Ltd. (Respondents)

AND BETWEEN:

JOHN SUSIN

Plaintiff (Appellant)

and

PRECISION BUILDERS (WINDSOR) LIMITED, FIDELITY INSURANCE COMPANY OF CANADA, EUGENE GOODREAU and GOODREAU EXCAVATING LTD.

Defendants, Eugene Goodreau and Goodreau Excavating Ltd. (Respondents)

John Susin appearing in person

David Medcalf for the respondents

Heard and orally released: March 3, 2008

On appeal from the order of Justice John H. Brockenshire of the Superior Court of Justice dated February 1, 2007.

ENDORSEMENT

[1] The appellant and the respondents went through a lengthy trial in 2000 and 2001. The appellant was largely but not entirely unsuccessful.

[2] The appellant appealed to this court. His appeal on questions of liability was dismissed, but the cost order made against him at trial was varied in his favour to some extent (see paras. 5(b) and (c) of the order made by this court dated November 16, 2005).

[3] The appellant’s application for leave to appeal to the Supreme Court of Canada was refused in June 2006.

[4] One would have thought that the refusal of leave to appeal would have brought this long litigation to an end. Not so. In January 2007, the appellant went back to the trial court and brought a motion before the trial judge asking him to amend or vary his order made after the trial. That was the order that had been appealed to this court and varied to some extent. The appellant relied on Rule 59.06.

[5] The trial judge dismissed the motion and the appellant now appeals to this court.

[6] The motion is misconceived. To the extent that the appellant’s submissions attack the jurisdiction of this court to make the order it did on appeal with respect to the appellant’s responsibility for costs, the trial judge had no jurisdiction to address this court’s jurisdiction, and no authority to in any way vary the order of this court. In any event, there is no merit to the substance of the appellant’s argument that this court did not have jurisdiction to make the order it did. The order was made in the context of the appellant’s appeal from the cost order made at trial.

[7] The appellant’s obligation in respect of the costs of Goodreau is controlled by the order of this court (see paras. 5(b) and (c) of the order). The trial judge had no authority to in any way amend or vary an order of this court.

[8] Many of the appellant’s submissions made on the motion before the trial judge and renewed in this court were simply an attempt to reargue facts that had been decided against him at trial. Specifically, the appellant contends that certain factual findings made by the trial judge can no longer stand in light of this court’s decision. Those findings relate to the appellant’s responsibility for the length of the trial. The appellant argues that he was entitled on a motion to amend the judgment to have the trial judge somehow delete or remove these findings from his reasons. Rule 59.06 does not deal with reasons for judgment, but rather with orders and judgments of the court. To the extent that the trial judge’s factual findings were varied by this court, that variation is apparent from the reading of the reasons of this court.

[9] Lastly, we agree with the trial judge that to the extent that the trial judgment remains the operative order, it is free of any ambiguity.

[10] The appeal is dismissed. The respondent will have its costs as set out in the draft order approved at the end of the argument.

“Doherty J.A.”

“M. Rosenberg J.A.”

“R. A. Blair J.A.”