Court of Appeal for Ontario

CITATION: Heaney v. Wiznet Inc., 2013 ONCA 115

DATE: 20130222

DOCKET: C55153

BEFORE: Cronk, Epstein and Lauwers JJ.A.

BETWEEN

Adam Heaney, David Gilbert and Ken Chasse

Plaintiffs (Appellants)

and

Wiznet Inc., Wiztel Inc., Fraser Mason, Jeff Mason and 1038088 Ontario Limited

Defendants (Respondents)

COUNSEL:

Daniel Zacks, for the appellants

Cheryl Boyd, for the respondents

Heard and released orally: February 15, 2013

On appeal from the order of Justice James M. Spence of the Superior Court of Justice (Commercial List), dated January 20, 2012.

ENDORSEMENT

[1] The appellants appeal from the order of Spence J. of the Superior Court of Justice, dated January 20, 2012, “dismissing” their statement of claim. In our view, the appeal must be dismissed.

[2] The record before the motion judge confirmed that the appellants, who have been embroiled in this litigation for many years, were given multiple opportunities to file affidavit evidence in response to the respondents’ motion to strike their pleading. They failed to do so.

[3] The record also established that the appellants had not honoured several outstanding costs orders of the Superior Court of Justice and had failed to respond to outstanding undertakings in accordance with time limits repeatedly set by Superior Court judges.

[4] These facts, by themselves, amply supported the motion judge’s key holding:

In summary, the Plaintiffs have received considerable indulgence from the Court as set out in the materials filed by the Moving Parties. Now, after all this indulgence, they seek further indulgence but they do not provide any adequate and reliable reasons for the request.

[5] It is therefore unnecessary for the disposition of this appeal to address the appellants’ claim that oral evidence from the self-represented appellants was improperly received and relied on by the motion judge. The record itself grounded the motion judge’s ruling to strike the appellants’ statement of claim. His ruling fully accords with the principles enunciated by this court in 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544.

[6] Accordingly, we see no basis for appellate interference with the motion judge’s discretionary ruling.

[7] The respondents are entitled to their costs of this appeal, fixed in the total amount of $7,000, inclusive of disbursements and all applicable taxes. If the respondents require further direction to enable payment out of court of the funds currently held in court to the credit of this appeal, we may be spoken to through the Registrar.

“E.A. Cronk J.A.”

“Gloria Epstein J.A.”

“P. Lauwers J.A.”