Court File and Parties

CITATION: Willi v. Chapple, 2008 ONCA 188

DATE: 20080317

DOCKET: C46499

COURT OF APPEAL FOR ONTARIO

WINKLER C.J.O., MACPHERSON and ROULEAU JJ.A.

BETWEEN:

HEIDI WILLI

Applicant (Respondent)

and

FRANK CHAPPLE, LINCOLN PARK INC. and CABLE 1 ONTARIO INC.

Respondents (Appellant)

Counsel: Jeffrey W. Kramer for the appellant

J.D. Weir and Richard B. Jones for the respondent

Heard & released orally: March 11, 2008

On appeal from the order of Justice John Murray of the Superior Court of Justice dated December 12, 2006.

ENDORSEMENT

[1] The appellant appeals the motion judge’s order dismissing his motion to set aside or vary the order of Herold J. Herold J.’s order is the last in a series of orders dealing with the appellant’s failure to answer undertakings given on his discovery.

[2] The first order is the order of Sproat J. requiring that a series of undertakings be answered. The second order is the order of Seppi J. that again ordered the appellant to answer the same undertakings failing which the respondent was at liberty to move ex parte to strike the appellant’s pleading. The order of Herold J. is the ex parte order striking the appellant’s pleading for failure to comply with Seppi J.’s order.

[3] Both the appellant and respondent seek to file fresh evidence consisting of affidavits from their solicitor or former solicitor. In our view, the fresh evidence ought not to be admitted for two reasons. First, that evidence could have been adduced at the original motion by due diligence. Second, the affidavits are directed principally at whether the order Sproat J. ought to have been granted. That order is not under appeal and the evidence in the affidavits would not, therefore, reasonably have affected the result on the motion under appeal.

[4] With respect to the appeal itself, we see no basis for allowing it. The issue argued before the motion judge was whether the ex parte order should be set aside on the basis that the respondent had not made full, fair and frank disclosure to Herold J. Before us the appellant made the further submission that the materials in the record showed that the undertakings had been answered and that the order of Seppi J. has been complied with.

[5] The motion judge carefully reviewed the materials filed both on the motion before Herold J. and before him and concluded that the respondent had made a full, fair and frank disclosure to Herold J. We see no basis to interfere with this conclusion.

[6] The appellant’s second submission is that the material demonstrates that the undertakings had been answered prior to Herold J. hearing the ex parte motion. As a result, the affidavit filed by the respondent on that motion stating that no answer and no reasonable explanation for a lack of an answer had been provided for about forty undertakings was misleading. The appellant submits, therefore, that the order striking the pleading ought not to have been granted.

[7] We disagree. Although the material filed provides an answer to each of the undertakings given, many of these answers are simply unhelpful or unresponsive. By way of example, several of the answers given were that the information or documents sought had already been provided, the appellant did not remember the information being requested or the appellant simply did not know what was being asked of him. In our view, taken as a whole, it is fair to say that the answers provided were not truly responsive to the undertakings given and did not demonstrate an honest attempt to obtain and provide the information and documents sought. We also note that this submission was not made to the motion judge and is made, for the first time in this court.

[8] It was, therefore, reasonable for Herold J. to conclude, based on the materials filed, that the appellant had not provided proper answers to the undertakings and had not complied with the order of Seppi J. Nothing before us including the fresh evidence sought to be filed, demonstrates that this conclusion is wrong or that, if it had been raised before the motion judge, it would have led the motion judge to set aside the order of Herold J.

[9] In the result, we see no basis for concluding that the orders of Sproat J. and Seppi J. have been complied with and find no error in the motion judge’s decision. The appeal is therefore dismissed. Costs awarded to the respondent fixed in the amount of $10,000 inclusive of GST and disbursements.

“W.K. Winkler C.J.O.”

“J.C. MacPherson J.A.”

“Paul Rouleau J.A.”