COURT OF APPEAL FOR ONTARIO

CITATION: Graydon v. Burton, 2014 ONCA 674

DATE: 20140930

DOCKET: C58306

Epstein, van Rensburg and Benotto JJ.A.

BETWEEN

Roy Thomas Graydon

Plaintiff (Respondent)

and

Leanne Burton and SGI Search Group Inc.

Defendants (Appellant)

No one appearing for the appellant

Tudor B. Carsten, for the respondent

Heard and released orally: September 25, 2014

On appeal from the order of Justice James M. Spence of the Superior Court of Justice, dated January 7, 2014.

ENDORSEMENT

[1] The respondent is suing the appellant and her corporation SGI Search Group Inc. for, among other things, defamation. The action arises out of a brief sexual relationship between the appellant and respondent that ended in acrimony. In his claim, the respondent alleges that following the end of the relationship, the appellant engaged in a campaign of persistent disparaging communication about him - to him directly, to third parties and, more broadly, through the social media network. The appellant has counterclaimed for sexual battery and intentional infliction of mental distress. By order dated, January 7, 2014, Spence J. allowed the respondent’s motion to strike the claim in battery as well as several factual allegations from the counterclaim. The appellant appeals only that part of the order striking her claim in battery, a claim that does not involve SGI.

[2] Until the order of Juriansz J.A. of June 19, 2014 the appellant, who resides in California, was represented by counsel. Since then she has represented herself. A few days after her counsel was removed from the record, the appellant, primarily on the basis of alleged emotional difficulties, sought an adjournment of the hearing of the appeal scheduled for August 11, 2014. Counsel for the respondent agreed to the request on the basis that the appeal proceed peremptory to the appellant. On August 11, 2014, the panel adjourned the appeal to today.

[3] On September 16, 2014 the appellant contacted this court’s scheduling office and requested an adjournment indicating she was booked to have an MRI at a hospital in Toronto, which would interfere with her ability to argue the appeal. Counsel for the respondent refused to agree to another adjournment. On September 18, 2014 the court office advised the appellant she would have to attend today and argue her case for an adjournment but that she also must be prepared to proceed with the appeal, if the adjournment were denied. On September 19, 2014 the appellant contacted the court scheduling office and again tried to secure an adjournment. Counsel for the respondent refused to consent. On September 23, 2014 the court office again advised the appellant that she would have to appear today: she could request an adjournment but must be prepared to proceed with the appeal.

[4] Later that day the appellant advised that she would not be attending at the hearing scheduled for today.

[5] The appellant did not appear in court and counsel for the respondent made submissions that the matter ought to proceed: the appeal should be considered and be dismissed.

[6] In all of the circumstances, the request for an adjournment and the appeal are dismissed.

[7] The appellant’s adjournment requests have focused on emotional issues arising out of a number of circumstances in her life that she claims prevent her from arguing the appeal. Given the history of this appeal and the fact that the appellant has not provided any evidence in support of her claims supporting her request for an adjournment of today’s hearing (notwithstanding her undertaking to do so), we conclude that the appellant has been given ample opportunity to make her case in favour of an adjournment and has failed to do so.

[8] Second, in the light of the allegations in the counterclaim with respect to the tort of sexual battery, on the record before us, the appeal has little chance of success.

[9] For these reasons, the appeal is dismissed.

[10] The respondent is entitled to costs of the appeal fixed in the amount of $10,000 inclusive of disbursements and HST.

“Gloria Epstein J.A.”

“K. van Rensburg J.A.”

“M.L. Benotto J.A.”