Court of Appeal for Ontario

Date: November 15, 2017 Docket: C63932

Judges: Cronk, Huscroft and Nordheimer JJ.A.

Between

Vladen Matusovski Plaintiff (Appellant)

and

Alexander B. Tzaferis and Tzaferis & Furtado LLP Defendants (Respondents)

Counsel

Vladen Matusovski, acting in person

B. Robin Moodie and Bronwyn M. Martin, for the respondents

Heard and released orally: November 15, 2017

On appeal from: the order of Justice Grant R. Dow of the Superior Court of Justice, dated March 13, 2017.

Reasons for Decision

[1] Mr. Matusovski appeals from the order of Dow J. dated March 13, 2017 that dismissed his action and ordered him to pay costs fixed at $44,440.24 together with costs thrown away of $1,142.86.

[2] This action was a claim in negligence against the defendant lawyers who had acted for Mr. Matusovski on a companion action that Mr. Matusovski had commenced against an insurance company arising from a motor vehicle accident in which Mr. Matusovski was involved. The action against the insurance company was earlier dismissed apparently because Mr. Matusovski failed to comply with orders that the court had made regarding the payment of costs.

[3] This action was dismissed for a different reason. It was dismissed because Mr. Matusovski twice failed to attend for a defence medical examination that he had been ordered to attend. Part of Mr. Matusovski's claim arising out of the motor vehicle accident was that he had sustained a brain injury. The defence wished to have Mr. Matusovski examined by a neurologist.

[4] Contrary to Mr. Matusovski's position before this court, not only did Mr. Matusovski fail to attend the defence medical twice, the transcript confirms that he made it abundantly clear before the motion judge that he had no intention of ever attending any such medical examination. Mr. Matusovski is of the view that the defence already has sufficient medical information about him.

[5] It is not up to Mr. Matusovski to unilaterally decide that he will not comply with a court order. If Mr. Matusovski did not believe that there was a sufficient basis for ordering him to attend a defence medical examination, then he ought to have appealed the order that required him to do so. That he did not do.

[6] The motion judge excused Mr. Matusovski's first failure to attend the defence medical examination. He gave Mr. Matusovski another chance. However, Mr. Matusovski did not avail himself of that second opportunity.

[7] Given that Mr. Matusovski had made it clear to the motion judge that he would not attend any defence medical examination, he left the motion judge with no alternative but to dismiss his claim. There is no proper basis for us to interfere with that decision. The proposed fresh evidence, even if admitted, does not alter our conclusions.

[8] Mr. Matusovski raises certain other issues in his factum including his complaint about a case management judge being appointed and that his other action ought not to have been dismissed. However, none of the issues he raises is properly before us as part of this appeal and we cannot address them.

[9] The appeal is dismissed. There will be no order as to costs.

E.A. Cronk J.A.

Grant Huscroft J.A.

I.V.B. Nordheimer J.A.