Court of Appeal for Ontario

COURT OF APPEAL FOR ONTARIO DATE: 20211007 DOCKET: C68067

Hourigan, Huscroft and Coroza JJ.A.

BETWEEN

Henry Smith and Susyn Smith Plaintiffs (Appellants)

and

GCAT Group Inc., Danial Hadizadeh and Akbar Hadizadeh Defendants (Respondents)

Counsel: Richard Macklin and Lucinda Bendu, for the appellants Pavle Masic, for the respondents

Heard: October 6, 2021 by video conference

On appeal from the order of Justice Robert F. Goldstein of the Superior Court of Justice, dated January 24, 2020.

Reasons for Decision

[1] The motion judge dismissed the appellants’ claim against the respondents for breach of contract, alleging that the respondents supplied inferior synthetic limestone rather than the Italian limestone for which they had contracted. The appellants’ claim, which commenced in 2012, was dismissed under r. 60.12(b) because the appellants failed to comply with interlocutory orders requiring them to permit the respondents to inspect the limestone at the centre of the dispute.

[2] The appellants argue that they should have been permitted a final opportunity to provide access to the respondents to inspect the limestone.

[3] There is no merit in the appellants’ position.

[4] Rule 60.12(b) is designed to facilitate compliance with interlocutory orders, and among other things provides that the motion judge has the discretion to dismiss a proceeding. It is no light thing to dismiss a proceeding, but there was ample basis for the motion judge to do so in this case.

[5] The respondents first sought to inspect the limestone in 2017 and brought a motion to permit inspection in 2018. Testing was ordered by Master Jolley but did not take place. The appellants brought a motion to vary the Master’s order but this was rejected by the Master, who described it as smacking “of an attempt to appeal my order after the appeal period had expired”, and full indemnity costs were awarded against the appellants. The appellants appealed this order and the appeal judge found that the appeal was “entirely devoid of merit” and “completely frivolous”. He inferred that the appellants had appealed in order to avoid implementing the inspection order. Following this appeal, the appellants refused to pay costs unless the respondents signed a “satisfaction piece”, a requirement that had not existed in the Rules for over thirty years. The appellants continued to advance the argument that the respondents had lost their right to inspect the limestone, an argument that had been rejected by both the Master and the appeal judge. The motion judge inferred that the appellants “continued to play games”.

[6] The motion judge carefully reviewed the history of the action. He found that “no matter how many times the [appellants] are told they must permit an inspection, they will not do so”. The motion judge drew the inference that the appellants “have no case and they must know it.” In these circumstances, dismissal of the action under r. 60.12(b) was amply justified. The motion judge was not required to provide the appellants with yet another opportunity to disobey a court order before dismissing the action.

[7] The appellants blame their former lawyer for pursuing what they describe as a “stubborn litigation strategy”. They seek leave to file fresh evidence demonstrating that he gave erroneous advice on which they relied.

[8] There is no basis to set aside the motion judge’s order because of the appellants’ complaint about their counsel’s strategy and we do not admit the fresh evidence that purports to demonstrate counsel’s failings. It is supported only by a self-interested affidavit filed by one of the appellants, which indicates that he was not aware of the litigation strategy his counsel pursued. There is ample evidence in the record to the contrary. In any event, the appellants may pursue a negligence action against their lawyer if they think he provided erroneous advice: see Oz Merchandising Inc. v. Canadian Professional Soccer League Inc., 2021 ONCA 520 at para. 44.

[9] In summary, the motion judge applied the relevant law and made no error in doing so. His decision to dismiss the appellants’ action is entitled to deference.

[10] Leave to introduce the fresh evidence is denied. The appeal is dismissed.

[11] The respondents are entitled to costs for the appeal, including the fresh evidence motion, fixed at $13,000 all inclusive.

“C.W. Hourigan J.A.”

“Grant Huscroft J.A.”

“S. Coroza J.A.”