Court of Appeal for Ontario

CITATION: Lee v. Lee, 2011 ONCA 506

DATE: 20110711

DOCKET: C52657

BEFORE: O’Connor A.C.J.O., Cronk and Rouleau JJ.A.

BETWEEN

Alan Lee (also known as Edward Alan Lee)

Plaintiff (Appellant)

and

Cindy Lee and Dr. Michael Chernick

Defendants (Respondent)

COUNSEL:

Alan Lee, in person

Amanda M. Chapman, for the respondent

Heard and released orally: July 6, 2011

On appeal from the order of Justice Paul Perell of the Superior Court of Justice, dated August 17, 2010.

ENDORSEMENT

[1] We agree with the motion judge, for the reasons outlined by him at paragraph 4 of his reasons, that the appellant was precluded from proceeding with this tort claim against his former wife.

[2] The final settlement of the matrimonial litigation between the parties, achieved at a time when the appellant knew and relied on the material facts surrounding the respondent’s conduct now complained of, is a full answer to the appellant’s tort action against the respondent. The appellant knew, at the time of the matrimonial litigation, all the facts necessary to advance this tort claim against the respondent. He failed to pursue this claim or to reserve his future right to do so when finally settling the matrimonial litigation. In these circumstances, no genuine issue requiring a trial exists.

[3] The appeal is dismissed. The respondent is entitled to her costs of the appeal fixed in the amount of $3,000, inclusive of disbursements and applicable taxes.

“D. O’Connor A.C.J.O.”

“E.A. Cronk J.A.”

“Paul Rouleau J.A.”