Court of Appeal for Ontario

Date: 2018-02-16 Docket: C63788

Judges: Hourigan, Roberts and Nordheimer JJ.A.

Between

Royal Bank of Canada Plaintiff/Respondent

and

Guy Joseph Sanders and Gloria Sanders Defendants/Appellant

Counsel

Guy Sanders, appearing in person

David Silver, counsel to Aaron Wachna, former counsel to the appellant

Natalie Marconi, for the respondent

Heard

February 13, 2018

On Appeal

On appeal from the order of Justice James Diamond of the Superior Court of Justice, dated April 21, 2017.

Appeal Book Endorsement

[1] The appellant, Guy Sanders, appeals the order of the motion judge granting the Royal Bank of Canada's motion for summary judgment and dismissing the appellant's counterclaim.

[2] Mr. Sanders appeals on the basis that the motion judge erred in failing to accept late-filed materials for the summary judgment motion. In support of his position, he has brought a motion to adduce fresh evidence on the appeal, which includes an affidavit from his lawyer advising that he misdiarized the filing date for the summary judgment motion.

[3] We are not persuaded that the motion judge erred in refusing to accept the late-filed materials. The motion judge considered the explanation proffered by the appellant's counsel and rejected it for the reasons he detailed in his endorsement. In our view, there is no basis to interfere with the motion judge's exercise of his discretion and we decline to do so.

[4] We also deny the motion for leave to adduce fresh evidence. There is no explanation regarding why this material was not adduced at the time of the summary judgment motion. We are also of the view that the evidence would have made no difference in the motion judge's analysis regarding the late-filed materials. It is clear from the lawyer's evidence that the misdiarizing of the deadline was not relevant because counsel for the appellant believed that he was not obliged to file materials until he had received complete answers to undertakings.

[5] The appeal is dismissed. Mr. Sanders shall pay costs to the respondent in the all-inclusive sum of $25,000. These costs are awarded on a substantial indemnity basis on the ground that costs on a higher scale are provided for in the loan agreement entered into by the parties.