COURT FILE NO.: 89/07
DATE: 20071011
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LANE R.S.J., MCCOMBS AND MCLEAN JJ.
B E T W E E N:
TATIANA GILINA
Plaintiff/Appellant
- and -
BRIAN D. BELMONT
Defendant/Respondent
In Person
In Person
HEARD at Toronto: October 11, 2007
r.s.j. lane.: (Orally)
[1] Ms. Gilina appeals from the confirmation by Belobaba J. of the Report of Assessment Officer Kane, assessing Mr. Belmont’s bill for services rendered to Ms. Gilina as it was submitted.
[2] Ms. Gilina has submitted to us this morning repeatedly that Mr. Belmont did nothing deserving of remuneration because he did not protect her interests. Specifically, she submits that he could not have protected her interests to any extent as he was never even on the record. For this statement she relies on a letter from the Brampton Court office stating that they could not accept her Notice of Intention to act in person because Belmont, Fine was not on the record. There is no explanation of how the Court office reached that conclusion. However, there is other evidence including a Notice of Change of Solicitors from Mr. Michael MacKay sent by fax referring to Belmont, Fine, as previous solicitors of record. I should pause to say that Ms. Gilina says that is a forgery, but she did not support that accusation with any evidence.
[3] Mr. Belmont’s own evidence, as it appears in the transcript, explains the activity which he actually conducted in Ms. Gilina’s interests, including bringing a motion for summary judgment and other steps.
[4] The Assessment Officer was entitled to prefer that evidence to the technicality relied on by Ms. Gilina because the Assessment Officer was the primary judge of the facts. Mr. Justice Belobaba made no error in refusing to interfere with that finding.
[5] Speaking generally of Ms. Gilina’s approach, she has made an error which is characteristic of unrepresented persons who have studied a particular piece of legislation, here the Construction Lien Act, and have understandably, as they are untrained, misunderstood it. She treats each provision of the Act as if it was somehow compulsory. For example, because it is possible to have a cross-examination on an affidavit of verification, she feels it is somehow contrary to the Act not to have done so, but to have brought, as Mr. Belmont did, a summary judgment motion instead. She made submissions of this sort in connection with sections 39, 40 and 67 of the Act. By way of example, in respect of s.67, she relies on s. 67(1) which provides as follows:
“The procedure in an action shall be as far as possible of a summary character, having regard to the amount and nature of the liens in question.”
[6] She argues that bringing a motion for summary judgment was not in accordance with the Act, apparently not realizing that a motion for summary judgment is a summary procedure. Secondly, she does not give effect to subsection (3) of s.67 which provides that:
“Except where inconsistent with this Act, and subject to subsection (2) of the Courts of Justice Act, the Rules of Court apply to pleadings and proceedings under the Act.”
[7] Far from being a breach of the Act and an illegal thing to do, bringing a summary judgment motion is simply something contemplated under the procedure.
[8] Similarly, in respect of a motion brought in Newmarket instead of in Brampton, she asserts that this was something quite wrong done by Mr. Belmont and she asserts that he lied to the Court in suggesting that there was a requirement to do so because that is where counsel for the responding party carried on his practice. Regrettably, Ms. Gilina is in error. There was in fact such a rule. Rule 37.01 provided for precisely what Mr. Belmont said was required until it was amended effective July 1, 2004.
[9] I will not multiply examples but Ms. Gilina’s submissions to us are full of failures to understand the difference between procedures that are possible and procedures that are mandatory.
[10] There is simply no merit to her complaints that Mr. Belmont was repeatedly in violation of the procedural requirements of the Construction Lien Act.
[11] Ms. Gilina also relies upon a certain fax dated 15 January, 2003, from Mr. Belmont to counsel for the other side, copied to Ms. Gilina. In that fax, he sets out how he proposes to proceed. He did not actually proceed exactly as forecast in that letter, he brought a summary judgment motion instead. Ms. Gilina says this is a breach of a contract with her as to how he would proceed. I am not aware of any evidence, and certainly none was cited to us, that this fax was anything more than an informational fax. Even accepting that it may have been contractual, there is other evidence in the transcript, particularly at page 47 where, under cross-examination by Ms. Gilina, Mr. Belmont explains that the change in procedure was discussed and agreed between them and that it was arranged he would bring the summary judgment motion. Here again, the Assessment Officer was entitled to accept that evidence.
[12] The factual findings of the Assessment Officer are not effectively challenged in this case and Ms. Gilina has not demonstrated any error on the part of either the Assessment Officer or Belobaba J.
[13] Ms. Gilina has submitted to the Assessment Officer, to Belobaba J. and to us, that Mr. Belmont lied to the Court. One of the instances was that of the motion in Newmarket where she would not accept that it may be possible that Mr. Belmont made a mistake about where the motion had to be brought, but maintained that he lied. We know from a previous part of these reasons that he did not even make a mistake.
[14] We have not heard today from Mr. Belmont, as we have not called upon him and he has had no opportunity to defend himself against these allegations. We wish to make it clear that we have studied the material and give no credence whatsoever to these allegations of lying to the Court which we think are totally unfounded in the evidence.
[15] The appeal is dismissed.
[16] Following submissions as to costs, I have endorsed the Appeal Book as follows: “This appeal is dismissed for reasons delivered orally. Costs on a substantial indemnity basis fixed at $4,244.77, inclusive, payable by the appellant to the respondent within thirty days. Order of Belobaba J. amended to provide that the Report of the Assessment Officer is confirmed. Approval of the form of the order of Belobaba J. and of this Court by the appellant dispensed with.”
LANE R.S.J.
MCCOMBS J.
MCLEAN J.
Date of Reasons for Judgment: October 11, 2007
Date of Release: October 16, 2007
COURT FILE NO.: 89/07
DATE: 20071011
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LANE R.S.J., MCCOMBS AND MCLEAN JJ.
B E T W E E N:
TATIANA GILINA
Plaintiff/Appellant
- and -
BRIAN D. BELMONT
Defendant/Respondent
ORAL REASONS FOR JUDGMENT
LANE R.S.J.
Date of Reasons for Judgment: October 11, 2007
Date of Release: October 16, 2007