Court of Appeal for Ontario

Date: 2017-10-19 Docket: C63689

Judges: MacPherson, Juriansz and Roberts JJ.A.

Between

Sardar Saadilla Plaintiff (Appellant)

and

York Condominium Corporation No. 187 Defendant (Respondent)

Counsel

Sardar Saadilla, acting in person

Antoni Casalinuovo, for the respondent

Heard: October 16, 2017

On appeal from: the order of Justice Michael A. Penny of the Superior Court of Justice, dated January 13, 2017.

Reasons for Decision

[1] The appellant appeals from the order of the motion judge granting summary judgment dismissing his action against the respondent. We allowed his request that he be permitted to be assisted by a friend as he said he had difficulty expressing himself well in English.

[2] First, he asserts that the material he has tendered in his fresh evidence motion should not be considered to be fresh evidence as his affidavit of documents was served and filed in court. He concedes the documents, listed in Schedule A of that affidavit, were not in the record before the motion judge. Consequently, they are fresh evidence in this court.

[3] Second, the appellant explains he did not have all his material before the motion judge because the motion judge did not grant him an adjournment of the motion. He says he advised the motion judge he needed to wait for a police report that would corroborate his claim that the superintendent of the respondent assaulted him. The police occurrence report regarding an incident on July 16, 2016 is included in the appellant's fresh evidence material. Also included are two access to information requests for police reports, which are dated February 27, 2017 and April 3, 2017, after the motion judge's decision dated February 15, 2017.

[4] The police occurrence report, and most of the other fresh evidence the appellant now tenders, could have been obtained prior to the hearing by the exercise of due diligence. More importantly, none of the material, including the police report, could reasonably be expected to have affected the result. The motion to file fresh evidence is dismissed.

[5] The motion judge's refusal of the adjournment was discretionary and reasonable. The appellant had had adequate opportunity to make an access for information request for the report prior to the motion but did not do so.

[6] In dealing with the motion, the motion judge pointed out that the appellant is a tenant in a condominium unit of the respondent, which is a condominium corporation. He correctly held that the appellant had no standing to sue the Corporation with respect to alleged noncompliance with the Condominium Act, 1998, S.O. 1998, c. 19, or the condominium's governing by-laws. He correctly held that the authorizations the appellant's landlord provided to him do not include suing the respondent.

[7] In regard to the appellant's other claims, the motion judge found they consisted of bald allegations, lacked particularity, or otherwise failed to raise a genuine issue requiring a trial. The motion judge acknowledged there were competing claims about the alleged assault but found there was no evidence the respondent was or could be liable.

[8] We see no basis that would allow us to interfere.

[9] The appellant also appeals the motion judge's order granting costs in favour of the respondent in the amount of $7,500. This court does not review costs orders unless there is a clear error of principle or the order is manifestly unreasonable. Neither condition is present here.

[10] The appeal is dismissed. Costs in favour of the successful respondent are fixed in the amount of $8,500, inclusive of applicable taxes and disbursements.

J.C. MacPherson J.A.

R.G. Juriansz J.A.

L.B. Roberts J.A.