CITATION: Gu v. Gaertner Baron LLP, 2020 ONSC 6027
DIVISIONAL COURT FILE NO.: 313/19 DATE: 20201006
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
D.L. Corbett, D. Fitzpatrick, Kristjanson JJ.
BETWEEN:
Yue Gu
Dr. Ran He, for the Appellant
Appellant
– and –
Gaertner Baron LLP
Arie Gaertner and Maija Pluto, Respondent
Respondent
HEARD at Toronto: September 22, 2020
D. Fitzpatrick J.
Nature of Appeal
[1] This is a judicial appeal from the order of D.A. Wilson J., dated May 17, 2019 (2019 ONSC 3145) (the “Final Order”), declining the Appellant’s request for an adjournment. The denied adjournment was for a Motion to Oppose a Certificate of Assessment issued for legal fees and disbursements that the Appellant owes the Respondent. The motion judge found that the Motion to Oppose was abandoned pursuant to Rule 37.10.1.
[2] The Appellant seeks to have fresh evidence admitted on this appeal and to set aside the Final Order. The Respondent submits that the Appellant is not entitled to introduce fresh evidence and seeks a dismissal of this appeal.
Background
[3] The Respondent law firm was retained by the Appellant in August, 2016 to defend a fraud action brought against the Appellant, his spouse and a related company. As part of the larger retainer, the Appellant instructed the Respondent to seek to remove a Certificate of Pending Litigation registered against his residence. The solicitor/client relationship quickly broke down and the Respondent ceased acting in December, 2016.
[4] The Appellant took issue with the Respondent’s accounts and proceeded to an assessment of those legal fees in accordance with s. 3(a) of the Solicitors Act. The Assessment Officer rendered his decision, with written reasons, on April 25, 2018 (the “Assessment Award”). The Assessment Award reduced the Respondent’s accounts from $107,255.55 to $93,469.19 leaving a balance owing by the Appellant of $57,151.30, inclusive of interest and costs. The Appellant was represented by counsel on the assessment.
[5] The Appellant then served notice of a Motion dated June 22, 2018 to Oppose the confirmation of the Assessment Award (the “Motion”).
[6] The Motion was first before the court on August 14, 2018. The Appellant’s counsel and the Respondent attended before Justice Glustein that day where they consented to a timetable for the delivery of the Appellant’s materials by November 23, 2018. They agreed to a January 11, 2019 hearing date.
[7] The Appellant’s relationship with his counsel broke down following the attendance before Justice Glustein. The Appellant failed to file his materials by the November 23, 2018 deadline.
[8] The Appellant appeared at the January 11, 2019 hearing date representing himself. He asked for an adjournment to retain new counsel. The Respondent consented but asked for a timely return date. Justice Favreau adjourned the Motion to the Civil Practice Court sitting February 4, 2019. Justice Favreau endorsed that the Appellant or his new counsel was to attend on February 4th to set a new date for the hearing and that the new date would be marked peremptory against the Appellant to proceed.
[9] The Appellant did not attend the February 4, 2019 court date and did not have counsel attend that day on his behalf.
[10] The Appellant appointed new counsel of record on March 21, 2019. His new counsel was able to return the Motion before the court on April 15, 2019. On that date, Justice Archibald set a deadline of May 8, 2019 for the Appellant to serve his factum. A two-hour hearing was scheduled for May 17, 2019. Justice Archibald endorsed that no viva voce evidence would be tendered.
[11] The Appellant’s relationship with his new counsel broke down following the attendance before Justice Archibald. The Appellant failed to file his factum by the May 8, 2019 deadline.
[12] The Appellant emailed the Respondent on May 13, 2019 stating that he was “left without a lawyer again as of today” and asked the Respondent to consent to another adjournment. His email went on to advise that if the Respondent did not consent to an adjournment then the Appellant would make “a request to the hearing judge for an adjournment of the hearing in order to allow me more time to find a lawyer.” The Respondent did not consent.
[13] The Appellant failed to confirm the Motion three days prior to the May 17th hearing date as required by Rule 37.10.1(1) of the Rules of Civil Procedure. However, the Respondent did file a confirmation pursuant to Rule 37.10(2) seeking to address costs.
[14] The Appellant appeared at the May 17, 2019 hearing date representing himself with the assistance of an interpreter. He failed to file a Motion Record or other materials of any kind by that date and had none with him that day to present to the Court.
[15] The Appellant requested another adjournment. He also made some references going to the merits of the Motion. The motion judge denied the adjournment request and declined to hear any submissions on the merits. The motion judge considered the length of time the motion had been outstanding, including the prior adjournment granted to the Appellant, that the Motion was marked peremptory against the Appellant and the Appellant’s failure to comply with the Orders of Justices Glustein, Favreau, and Archibald. The motion judge deemed the Motion abandoned in accordance with R. 37.10.1(4) based on the Appellant’s failure to file a motion confirmation. Costs were awarded to the Respondent.
Analysis
Fresh Evidence
[16] The Divisional Court may receive fresh evidence on appeal pursuant to s. 134(4)(b) of the Courts of Justice Act. The Appellant asks to file his affidavit sworn November 21, 2019 (the “Affidavit”). This evidence should not be permitted.
[17] As discussed further below, the only issue before the motion judge was the Appellant’s request for an adjournment of his unconfirmed Motion. The Appellant’s appeal of the motion judge’s decision to deny his request is procedurally based. The Appellant’s Affidavit does not assist that enquiry.
[18] The first thirty paragraphs of the Affidavit offer nothing more than background information providing the Appellant’s one-sided narrative of the assessment along with his position on the merits. The balance of the Affidavit largely speaks to the Appellant’s relationships with his various former counsel leading up to May 17th along with the continuing retainer of his current lawyer towards demonstrating his earnestness in the pursuit of the Motion. The Appellant has not established that the information presented in the Affidavit was unavailable on May 17th through due diligence, except with respect to the retainer of his current counsel subsequent to that date. This latter retainer is not relevant to anything the motion judge could have or should have considered for the obvious timing reasons. More broadly, the Appellant has failed to demonstrate the supposed fresh evidence is anything more than peripheral narrative with dubious relevance to any issue before the motion judge or that it would have impacted the outcome on that day.
[19] Simply stated, the Appellant has failed to satisfy the test for the admission of fresh evidence as stated in either R v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759 or Sengmueller v. Sengmueller (1994), 1994 8711 (ON CA), 17 O.R. (3d) 208 (C.A.). For similar reasons, there is also no basis to accept the Appellant’s submissions that the refusal to accept the Affidavit manifests an unfairness or is otherwise contrary to the interests of justice.
The Decision Not to Adjourn
[20] The Appellant argues that the motion judge erred in applying Rule 37.10.1. He submits that the Motion is an appeal and therefore should have been governed by Rule 62.01 instead. Rule 62.01 does not require a confirmation and, by relation, does not risk the consequences flowing from the failure to file a confirmation. I reject this argument.
[21] I take no issue with the suggestion that the Motion is, in substance, an appeal. Clearly it is given that the Appellant seeks to set aside the Assessment Award. However, the process by which the Assessment Award comes before the Court is by means of a motion. This is self-evident when one considers that the Appellant initiated his challenge to the Assessment Award by Notice of Motion. Further, he agreed to a timetable whereby he was to file a Motion Record. The process to oppose the Assessment Award is by motion, which engages Rule 37.10. The Appellant has provided no authority or other basis to meaningfully challenge this process or the application of Rule 37.10 to his Motion.
[22] I see no merit in the argument that the motion judge erred where she refused to permit the Appellant to make submissions on the Motion merits. The Appellant failed to file any materials on the Motion over the eleven months following its commencement. He failed to do so even though the Motion was marked peremptory against him to proceed on May 17th. As such, there was no evidence to provide platform for the Appellant to make submissions to Court on the merits regardless of whether the Motion was confirmed or not. Contrary to the Appellant’s position, it would have been an error had the motion judge proceeded on the merits with no evidence.
[23] The Appellant argues that the motion judge erred by failing to consider his “special” circumstances, namely that the Appellant had recently become self-represented and relied on an interpreter before the Court. I also reject this argument.
[24] The Motion came before the motion judge initially in an administrative court. She took it upon herself to traverse the matter before her later in the day when sitting in motions court. The experienced motion judge reviewed the file during the interim. She was well aware that the Appellant’s counsel of record, Mr. Simaan, was not in attendance on May 17th thereby leaving the Appellant to represent himself. She was obviously aware that the Appellant had an interpreter on May 17th.
[25] There is nothing in the record to suggest that the motion judge failed to consider the Appellant’s circumstances. The Appellant intended to ask for an adjournment when he attended on May 17th. He stated so when he emailed the Respondent on May 13th. The Appellant had no other option given he had failed to file materials and could not argue the merits. The motion judge carefully considered all of the circumstances, including the procedural history of the Motion, the Appellant’s failure to comply with the various Court orders and the Appellant’s circumstances, when she denied the adjournment. Further, she took the time to set out her detailed reasons in a typewritten endorsement. In short, the motion judge gave full and careful consideration to this matter.
[26] Finally, the Appellant argues that the motion judge erred by failing to consider the overarching principle that cases should be determined on the merits as set out in Rule 1.04(1). The Appellant submits he has an arguable case that should be determined on the merits instead of being terminated on what he describes as a technicality. Of course, this ignores the fact that the Appellant did nothing to facilitate the Motion being heard on its merits over the eleven months after it was commenced. The motion judge did not fail to consider Rule 1.04(1). She was faced with a party who had filed no materials over an extended period on a Motion that was marked peremptory against him to proceed. She considered all of the relevant circumstances and denied the adjournment providing comprehensive reasons. That decision does not equate to a failure by the motion judge to consider that the Motion should, where possible, be determined on the merits. She simply concluded that these circumstances did not support granting another adjournment to facilitate a hearing on the merits. The Appellant alone is responsible for his Motion not being heard on the merits.
[27] The Appellant has failed to establish any error was made by the motion judge or that her ruling was unreasonable. His appeal is dismissed.
[28] The Respondent is entitled to costs of this appeal fixed at $15,000 payable by the Appellant to the Respondent.
D. Fitzpatrick J.
I agree
D.L. Corbett J.
I agree
Kristjanson J.
Date of Release: October 6, 2020
CITATION: Gu v. Gaertner Baron LLP, 2020 ONSC 6027
DIVISIONAL COURT FILE NO.: 313/19 DATE: 20201006
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
D.L. Corbett, D. Fitzpatrick, Kristjanson JJ.
BETWEEN:
Yue Gu
Appellant
-AND-
Gaertner Baron LLP
Respondent
REASONS FOR JUDGMENT
D. Fitzpatrick J.
Date of Release: October 6, 2020