Court File and Parties

CITATION: Sawaged v. IPC (Investment Planning Counsel), 2011 ONCA 827

DATE: 20111222

DOCKET: C53202

COURT OF APPEAL FOR ONTARIO

O’Connor A.C.J.O., Laskin and Cronk JJ.A.

BETWEEN

Naim Sawaged

Defendant in Claim and Plaintiff in Third Party Claim (Appellant)

and

IPC (Investment Planning Counsel) & Liberty International

Plaintiff in Claim and Defendant in Third Party Claim (Respondents)

Counsel:

Naim Sawaged, appearing in person

Meredith L. Hayward, for the defendant (respondent) IPC (Investment Planning Counsel)

M. Edward Key, for the defendant (respondent) Liberty International

Heard and released orally: December 16, 2011

On appeal from the judgment of Justice G. T. Trotter of the Superior Court of Justice, dated December 20, 2010.

ENDORSEMENT

[1] We conclude that the appeal must be dismissed.

[2] We do not accept Mr. Sawaged’s argument that the trial judge erred in refusing his request for an adjournment. A trial judge enjoys latitude in deciding whether to grant or refuse an adjournment of a scheduled civil trial. In dismissing Mr. Sawaged’s request, the trial judge considered, properly in our view, the age of the case (seven years), the fact that the trial date had been set one year earlier and the fact that another judge at the second pre-trial conference had refused a similar adjournment request.

[3] The trial judge dismissed both the claim against Mr. Sawaged and his counterclaim. IPC does not appeal the dismissal of its claim.

[4] Mr. Sawaged argues that the trial judge erred in dismissing his counterclaim. His counterclaim for defamation was based on arguments that IPC acted improperly in settling the claim by Mr. Sawaged’s client, in terminating his employment and in reporting the events to the regulators. The trial judge found that IPC was entitled to take these actions based on the results of its investigation. The investigation revealed that Mr. Sawaged engaged in sloppy business practices, inaccurate reporting of client income, and co-mingling of funds. There was evidence to support these conclusions. We see no basis to interfere.

[5] The trial judge also dismissed Mr. Sawaged’s counterclaim for mental distress. There was no evidence to establish compensable mental distress. Given the last minute production of the letter from Mr. Sawaged’s family doctor, the trial judge was entitled to reject its admission into evidence. In any event, the letter did not meet the threshold to establish the mental distress claim.

[6] Finally, the trial judge dismissed Mr. Sawaged’s third party claim against the respondent, Liberty International Underwriter Canada. The trial judge concluded that Mr. Sawaged did not comply with the notice requirements of the insurance policy. Again, we see no basis to interfere. The trial judge found as a fact that Mr. Sawaged did not deliver any written communication to Liberty International during the applicable time period other than his letter of September 18, 2002. There was evidence to support that finding.

[7] The trial judge also found that the letter of September 18th did not satisfy the notice requirements of this “claims made and reported” policy. The letter merely referred to a complaint that could be a potential claim. It provided no details of the complaint, nor did it say when the complaint was made. The letter did not provide any details that would enable Liberty International to determine if there was coverage or not.

[8] In the result, the appeal is dismissed. Costs of the appeal to IPC are fixed in the amount of $7,500, inclusive of disbursements and all applicable taxes. Costs of the appeal to Liberty International are fixed in the amount of $6,000, inclusive of disbursements and all applicable taxes.

“Dennis O’Connor A.C.J.O.”

“John Laskin J.A.”

“E.A. Cronk J.A.”