CITATION: Zivkovic v. Kovinic, 2008 ONCA 683

DATE: 20081007

DOCKET: C46836

COURT OF APPEAL FOR ONTARIO

Moldaver, Armstrong and Blair JJ.A.

BETWEEN:

Randy Zivkovic

Plaintiff (Respondent)

and

Zivota Kovinic

Defendant (Appellant)

Luigi De Lisio for the appellant

John A. Fehrenbach for the respondent

Heard and endorsed: September 26, 2008

On appeal from the judgment of Justice Patrick J. Flynn of the Superior Court of Justice dated February 16, 2007.

APPEAL BOOK ENDORSEMENT

[1] Having regard to the entire history of the case, including the lengthy delays in proceeding to trial, the appellant’s failure to list the wife as a witness in the affidavit of documents, his failure to notify the respondent’s counsel of his decision to call the wife until the date of trial, and the wife’s unavailability on the first day of trial, we are not persuaded that the trial judge erred in refusing to permit the appellant to call the wife as a witness. Accordingly, the appeal is dismissed. Costs to the respondent in the amount of $7,500 inclusive of G.S.T. and disbursements.