Court of Appeal for Ontario

Date: 2017-06-15

Docket: M47338 (M46187)

Panel: Strathy C.J.O., Brown and Huscroft JJ.A.

Between

Florips Bajouco Moving Party

and

Cindy Green Responding Party

Counsel

Florips Bajouco, acting in person

George Pakozdi, for the responding party

Heard: In writing

Reasons for Decision

A. Motion before this Court

[1] Florips Bajouco moves for reconsideration of this court's decision denying leave to appeal, pursuant to rule 59.06(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, relying on fresh evidence and alleging fraud. The responding party, Cindy Green, seeks an order prohibiting Ms. Bajouco from making further motions in this proceeding without leave.

[2] While this motion was under consideration by the court, Ms. Bajouco wrote to the Registrar of the court making unsworn allegations relating to this matter. We decline to consider this correspondence.

B. Background

[3] Ms. Bajouco and Ms. Green are neighbours. Ms. Green claimed damages as a result of flooding of her basement bathroom on four occasions between 2011 and 2013. Before the Small Claims Court, Ms. Green alleged that her basement was flooded because of the periodic detachment of a downspout on Ms. Bajouco's property. Ms. Bajouco denied that her downspout was responsible for the flooding. She instead suggested that the flood might have been caused by sewer backup, water flow from the street, or Ms. Green's own downspout.

[4] The trial judge found in favour of Ms. Green and awarded damages of $8,800.77, plus costs and disbursements of $1,515.12.

[5] Ms. Bajouco appealed to the Divisional Court. The Divisional Court dismissed her appeal and ordered costs against her in the amount of $3,000. It noted, at para. 9:

Although Bajouco has raised several issues on her appeal, most of them seek to impugn the trial judge's assessment of the evidence at trial and to have this Court rehear the case. In my view, none of the points argued on behalf of Bajouco amount to demonstrating any reversible error of law or palpable or overriding error with respect to any findings of fact made by the trial judge or with respect to her application of the law to those facts.

[6] Ms. Bajouco sought leave to appeal to this court. This court denied her motion for leave to appeal on June 29, 2016.

[7] Ms. Bajouco brought a motion seeking a stay of proceedings pursuant to rule 63.02 pending disposition of her motion for reconsideration. Justice Pardu denied the stay on February 22, 2017. She held, at para. 27, that "[g]iven the nature of the factual issues now raised, the absence of any error by the Divisional Court and the hurdle faced by the moving party in obtaining a change in the decision of this court refusing leave, I am not persuaded that a stay of enforcement should be granted."

[8] In seeking reconsideration of this court's decision denying leave to appeal, Ms. Bajouco relies on alleged fresh evidence she says she discovered in August 2016. According to Ms. Bajouco, this evidence "is crucial to the decision made at the [Small Claims Court] trial". She also alleges Ms. Green committed fraud.

C. Analysis

[9] Before considering the test for granting leave to appeal, it is necessary to consider the alleged fresh evidence that Ms. Bajouco seeks to adduce.

(1) Fresh Evidence

[10] Ms. Bajouco seeks to adduce a floor plan that she claims shows that Ms. Green's bathroom is located on the west side of the basement, rather than the east. Ms. Bajouco argues that this is contrary to Ms. Green's testimony before the Small Claims Court. This is supposedly relevant because Ms. Green's downspout is on the west wall and Ms. Bajouco's downspout is on the east wall.

[11] Ms. Bajouco also says that the bathroom is directly over Ms. Green's sewer line. From this, she asserts that either Ms. Green's own downspout or back-up water from the sewer caused the flooding.

[12] Ms. Bajouco also relies on a photograph that she claims demonstrates the City of Toronto found 50 percent calcium obstruction in the sewer line. She submits that the calcium obstruction could have caused the flooding. The photograph provided by Ms. Bajouco is dated July 30, 2016. She also provides photographs depicting work performed by the City of Toronto on the sewer and drainage system in October and November 2016.

[13] Ms. Bajouco seeks to adduce documents in support of her claim that Ms. Green misrepresented her true identity to the courts. She submits that the land registration documents indicate the owner of the land is "Cynthia Green", rather than "Cindy Green" (as Ms. Green identified herself at trial).

[14] Ms. Bajouco also submits that Ms. Green fabricated invoices and letters from the contractors.

[15] The test governing the admissibility of fresh evidence on appeal was outlined by the Supreme Court in R. v. Palmer, [1980] 1 S.C.R. 759, at p. 775. It requires satisfaction of the following four criteria: (i) the evidence could not have been adduced at trial; (ii) the evidence must be relevant in that it bears on a decisive or potentially decisive issue; (iii) the evidence must be reasonably capable of belief; and (iv) the evidence must be such that, if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[16] The proposed fresh evidence does not satisfy the Palmer test. As Pardu J.A. noted in dismissing the motion for a stay, most of the matters described as fresh evidence were, in fact, dealt with at trial.

[17] At trial, Ms. Bajouco suggested that the flooding was caused by Ms. Green's own downspouts since the bathroom is located on that side of the house. The trial judge rejected this possibility by finding Ms. Bajouco liable.

[18] Further, it is not clear how the floor map was obtained and whether it is accurate and reliable.

[19] The flooding occurred between 2011 and 2013. The relevance of calcium in the sewer lines and construction work done by the City of Toronto in 2016 is tenuous at best and could not reasonably be expected to have affected the result at trial.

[20] The issue at trial was liability for the flooding of Ms. Green's basement. Nothing about the name listed on the land registration documents is relevant to the determination of that issue.

[21] Finally, Ms. Bajouco had an opportunity to challenge the accuracy of the letters and invoices from the contractors at trial. She simply repeats these allegations here without providing any additional evidence that would call into question the validity of these documents.

[22] Accordingly, we decline to admit the fresh evidence.

(2) Leave to Appeal

[23] Ms. Bajouco seeks leave to appeal on the basis that the trial judge improperly relied on Ms. Green's allegedly false testimony and documents, failed to provide sufficient reasons, improperly reversed the burden of proof, and applied the wrong causation test.

[24] The test for granting leave to appeal from a final decision of the Divisional Court acting in its appellate capacity was established by this court in Sault Dock Co. Ltd. v. Sault Ste. Marie (City), [1973] 2 O.R. 479 (C.A.). Such decisions are intended to be final and review of those decisions is the exception to the general rule: Sault Dock, at p. 480.

[25] Leave may be granted in cases that present an arguable question of law or mixed fact and law on the interpretation of legislation; the interpretation, clarification or propounding of a general rule or principle of law; the interpretation of a municipal by-law where the point in issue is a question of public importance; or the interpretation of an agreement where the point in issue involves a question of public importance: Sault Dock, at p. 481.

[26] The court may also grant leave where special circumstances make the matter one of public importance, or where it appears in the interests of justice that leave should be granted: Sault Dock, at p. 481. Finally, leave may be granted where there is a clear error in the judgment below: Sault Dock, at p. 481.

[27] This case does not fall into any of the above categories. The proposed appeal is largely fact-based and does not raise questions that are of importance to the public generally. There is also no clear error below.

[28] Most of Ms. Bajouco's proposed grounds of appeal seek to impugn the trial judge's assessment of the evidence and to retry the case. Even if the purported fresh evidence was admissible, it would not justify granting leave in this matter.

[29] The arguments about the sufficiency of reasons, burden of proof, and causation were appropriately addressed by the Divisional Court. The only matter that was seriously at issue before the trial judge was the cause of the flooding. The evidence before the trial judge was capable of supporting a finding that Ms. Bajouco's waterspout was responsible for the basement flooding.

[30] There is no basis for this court to vary its earlier order. The motion for reconsideration is dismissed.

(3) Prohibition on Further Motions

[31] The responding party seeks an order under rule 2.1.02. Pursuant to rule 2.1.02(3), when the court makes an order staying or dismissing a motion that appears to be frivolous, vexatious or an abuse of process, the court may also make an order prohibiting the moving party from making further motions in a proceeding without leave.

[32] This court will monitor motions relying on rule 59.06 to ensure that the motion is not frivolous, vexatious or otherwise an abuse of process: Hoang v. Mann Engineering Ltd., 2015 ONCA 838, at para. 15.

[33] We are satisfied that in the context of this entire proceeding, including Ms. Bajouco's attempt to adduce fresh evidence and her recent correspondence with the Registrar, this motion is vexatious and an abuse of process and an order should issue under rule 2.1.02.

D. Disposition

[34] For these reasons, the motion for reconsideration is dismissed, with costs to the responding party in the amount of $3,500, inclusive of disbursements and all applicable taxes. Ms. Bajouco is prohibited from bringing further motions in these proceedings without leave of the court.

"George R. Strathy C.J.O."

"David Brown J.A."

"Grant Huscroft J.A."