Court File and Parties

CITATION: Dey v. Sookram, 2009 ONCA 104

DATE: 20090203

DOCKET: C47482

COURT OF APPEAL FOR ONTARIO

Rosenberg, MacPherson and Rouleau JJ.A.

BETWEEN:

Randolph Dey in his own capacity and as Executor of the Estate of Emma Dey

Plaintiff (Appellant)

and

David H. Sookram, M. Levine c.o.b. as Sookram and Levine, Barristers & Solicitors

Defendant (Respondent)

Randolph Dey, acting in person

Alfred J. Esterbauer for the respondent

Heard and endorsed: February 2, 2009

On appeal from the judgment of Justice Harvey Spiegel of the Superior Court of Justice dated June 28, 2007.

APPEAL BOOK ENDORSEMENT

[1] The appellant confined his appeal to two issues.

[2] First, that rule 37.15 precluded the trial judge from dealing with motions at the opening of trial. There is no merit to this submission. That rule deals with complex matters and allows the Chief Justice to assign a judge to deal with new motions. It does not prevent a trial judge, as they must, from dealing with motions that arise at the opening of and during the trial, such as amendments to the statement of claim or defence.

[3] Second, the appellant sought to introduce certain documents as fresh evidence. Those documents, or copies, were available at the trial, but the appellant withdrew from the trial. He was given the opportunity to return the following day but failed to do so. Thus, the appellant failed to exercise due diligence. We are also of the view that this evidence would not have changed the result. The evidence established that the respondent submitted the opinion letter within days of the request from legal aid. The proposed fresh evidence could not undermine that critical finding.

[4] Accordingly, the appeal is dismissed with costs fixed at $3,000 inclusive of G.S.T. and disbursements.