Court of Appeal for Ontario

Date: 2017-04-04 Docket: C62675

Judges: Juriansz, Lauwers and Hourigan JJ.A.

Between

Eugene D'Orazio Applicant (Appellant)

and

Attorney General of Ontario Respondent (Respondent)

Counsel

Eugene D'Orazio, acting in person

Savitri Gordian and Joshua Hunter, for the respondent

Heard: March 30, 2017

On Appeal

On appeal from the judgment of Justice Elizabeth M. Stewart of the Superior Court of Justice, dated August 12, 2016, with an addendum dated August 29, 2016.

Endorsement

[1] The appellant appeals from the order of Stewart J. dated August 25, 2016, with an addendum dated August 29, 2016. In that order, Stewart J. dismissed his application under r. 2.1.01 on the basis that the matters claimed were res judicata or an abuse of process.

[2] At the outset of his factum, the appellant recounts that Wright J. dismissed a previous application he had brought claiming that sections of the Human Rights Code of Ontario were unconstitutional. He states that he did not appeal the decision of Wright J., and later refiled this application, which included additional research and content. Specifically, the appellant submits that the claims in paras. 2 and 5 of the refiled application are new. Paragraph 2 is an attack of the findings of Wright J. and the relief sought in para. 5 could have been included in the first application. As such, there was ample support for Stewart J.'s finding that the refiled application was res judicata or an abuse of process. We agree with her that this application is fundamentally an attempt to re-litigate the issues before Wright J.

[3] Further, there was no procedural unfairness in this case. The filing of written materials is not mandatory where the court orders otherwise. Stewart J. gave both parties the opportunity of making oral submissions and in her addendum makes clear that she ordered otherwise.

[4] The appeal is dismissed. Costs in favour of the Attorney General of Ontario are fixed in the amount of $1,000, all inclusive.

"R.G. Juriansz J.A."

"P. Lauwers J.A."

"C.W. Hourigan J.A."