Court of Appeal for Ontario

Citation: Szewczyk v. Real Estate Council of Ontario, 2008 ONCA 744 Date: 2008-10-29 Docket: C48777

Before: Moldaver, Armstrong and Blair JJ.A.

Between:

Bohdan Szewczyk Plaintiff (Appellant)

And

Real Estate Council of Ontario Defendant in Default (Respondent)

Counsel:

Bohdan Szewczyk in person Kurt K. Pereira for the respondent

Heard and endorsed: October 28, 2008

On appeal from the judgment of Justice Andra Pollak of the Superior Court of Justice dated April 24, 2008.

APPEAL BOOK ENDORSEMENT

[1] The appellant sought an adjournment because his “lawyer” was out of the country and not able to attend. He presented no proof that he has retained counsel for this appeal. He has had ample time to do so. We have nothing by way of a letter or otherwise, indicating that counsel has even been approached, let alone retained, for the appeal. Accordingly, the application to adjourn is denied.

[2] On the merits, we agree with Pollak J. that the evidence upon which the appellant relies to set aside Sachs J.’s order of April 10, 2006, striking out his claim against the respondent RECO, does not meet the requirements of Rule 59.06(2). Rule 19.01(1), to which the appellant also alludes, is inapplicable.

[3] In any event, as the respondent correctly points out, despite the new means by which the appellant seeks to resurrect his action, in the end, his proposed action against RECO must inevitably fail because it constitutes an abuse of process and collateral attack on RECO’s decision, which as this court noted in its endorsement of November 6, 2006, dismissing the appellant’s appeal from Sachs J.’s order (leave to appeal to the Supreme Court of Canada denied on April 19, 2007), the appellant failed to appeal.

[4] Accordingly, the appeal from Pollak J.’s order is dismissed.

[5] Costs to the respondent, on a partial indemnity basis, fixed at $2,664.97 inclusive of G.S.T. and disbursements.