Court File and Parties

CITATION: Fanuzzi v. Windsor, 2008 ONCA 369

DATE: 20080512

DOCKET: C47813

COURT OF APPEAL FOR ONTARIO

DOHERTY, ARMSTRONG AND MACFARLAND JJ.A.

BETWEEN:

VICTOR FANUZZI

Appellant

And

WILLIAM G. WINDSOR

Respondent

Counsel:

Victor Fanuzzi in person

No one contra

Heard and released orally: April 24, 2008

On appeal from the judgment of Justice Wailan Low of the Superior Court of Justice dated September 20, 2007.

ENDORSEMENT

[1] The appellant appeals the judgment of Low J. dismissing his action on the ground that it is res judicata and duplicative of an earlier action dismissed by the judgment of Somers J. May 21, 1998. The judgment of Somers J. was appealed to this court and the appeal was dismissed. It is not clear from the record whether the appeal was dismissed on the merits or because of procedural irregularity. It is apparent from the pleadings that the issues and action dismissed by Somers J. are the same as those pleaded in the action which came on before Low J. September 20, 2007.

[2] Mr. Fanuzzi argues that the affidavit of documents filed in the earlier action was fraudulent. His claim in this regard is based solely on the fact that the date in the jurat of the affidavit had been changed from 1995 to 1997 and that March 28, 1997 was Good Friday when offices are closed. In any event, these irregularities in and of themselves do not suggest fraud in our view. This argument could and should have been before Somers J. and the argument addressed at that time. The affidavit predates the judgment.

[3] In any event, the plaintiff’s claim against Mr. Windsor was dismissed. The court found that he was not negligent in dispersing the proceeds of sale. The affidavit to which the appellant objects in our view has nothing to do with the claim against Mr. Windsor. The affidavit is that of a representative of the intervener, Mr. Windsor’s professional liability insurer.

[4] The appeal is dismissed.

“Doherty J.A.”

“Robert Armstrong J.A.”

“J. MacFarland J.A.”