Court File and Parties

CITATION: Bank of Montreal v. WoldeGabriel, 2008 ONCA 71

DATE: 20080205

DOCKET: C47517

COURT OF APPEAL FOR ONTARIO

SHARPE, CRONK and GILLESE JJ.A.

BETWEEN:

BANK OF MONTREAL

Plaintiff (Respondent)

and

JENIFER HARRIETHA WOLDEGABRIEL, WILLIAM T. OLIVER, ADELLA V. OLIVER SEAN B.K. OLIVER, NEITHA JOSPEHINE CLARKE, KALBI SYSTEMS INC. (ALSO KNOWN AS KALBI SYSTEMS), TWISTED PAIR CABLES INC., AND SELECT TECHNOLOGIES INC. (ALSO KNOWN AS SELECT TECHNOLOGY INC.). 3K COMPUTER SYSTEMS INC. (ALSO KNOWS AS 3K COMPUTER SYSTEMS, 3K COMPUTER INC. AND 3K COMPUTERS INC.), JOSE RAMON SANCHEZ ORTIZ (ALSO KNOWN AS JOSE SANCHEZ AND JOSE SANCHEZ ORTIZ), JAVIER SERRET AND PREMIER MAINTENANCE SERVICES

Defendants (Appellant)

Counsel:

Osborne Barnwell and Paul Slansky for Jenifer Woldegabriel (appellant)

Ian Roher and David Altshuller for the plaintiff (respondent)

Heard & released orally: January 25, 2008

On appeal from the judgment of Justice David Brown of the Superior Court of Justice dated April 9, 2007.

ENDORSEMENT

[1] We see no error on the part of Brown J. granting partial summary judgment on the basis that there was no triable issue in light of the appellant’s criminal conviction for fraud in relation to the transactions forming the subject matter of the plaintiff’s claim. The criminal conviction has been affirmed by this court.

[2] The appellant submits that we should allow the appeal on the basis of the fresh evidence. The material tendered as fresh evidence is alleged to demonstrate that the appellant’s civil counsel rendered ineffective assistance on the summary judgment motion by failing to raise the alleged ineffective assistance of her counsel in the criminal proceedings both at trial and on appeal. We see no merit in the appellant’s submissions. They would require us to find that her civil counsel, her criminal appeal counsel and her criminal trial counsel rendered ineffective assistance. To put these allegations in context, the appellant has made similar allegations against virtually every one of the very long list of lawyers who have represented her in these proceedings. We do not agree that there is a credible basis to support these claims.

[3] In the end, this appeal invites this court to allow the relitigation not only of the summary judgment motion but also of the appeal from conviction and of the criminal trial itself. To do so would be to permit an abuse of process.

[4] The appeal is dismissed with costs to the respondent fixed at $10,000, inclusive of disbursements and GST.

“Robert J. Sharpe J.A.”

“E.A. Cronk J.A.”

“E.E. Gillese J.A.”