Ontario Superior Court of Justice

Court File No.: CV-21-00000094-0000
Date: 2025-02-26

Parties

Between:
Sylvia Zwaan, Plaintiff (Respondent)
And:
Douglas LaFramboise and DDH Law Firm, Defendants (Applicants)

Before: Justice R.A. Bellows

Counsel:
R. Kostyniuk, Counsel for the Plaintiff (Respondent)
Unrepresented, for the Defendants (Applicants)

Heard: 2025-02-07

Reasons for Decision

Introduction

1The applicant, Douglas LaFramboise, brought this application under Rule 59.06(2)(a) of the Rules of Civil Procedure seeking to set aside Justice S.K. Stothart’s trial decision dated January 2, 2024.²

Grounds for the Application

2A summary of the grounds for the application were pleaded as follows:

a. That Sylvia Zwaan, the plaintiff in CV-21-00000094, committed perjury on September 14, 2023, in the trial of that matter.
b. That her counsel, Mr. Kostyniuk, suborned that perjury.
c. That Rule 59.06(2)(a) allows a party to have a decision set aside on the ground of fraud.
d. That perjury is an element of fraud and, therefore, the trial decision of Justice Stothart of January 2, 2024, ought to be set aside.

3The respondent filed materials opposing the applicant on all grounds and took the position that the application was an abuse of process.

4After having reviewed all materials by the applicant and respondent, I heard argument from the applicant and dismissed the motion. My brief reasons follow.

Legal Framework

5Section 59.06(2) provides that a party who seeks to have an order set aside or varied on the grounds of fraud of facts arising or discovered after it was made, may make a motion in the proceeding for the relief sought.

Procedural History

6The applicant also appealed the same decision to the Ontario Court of Appeal³ on a motion for fresh evidence. In that appeal, he pleaded that Ms. Zwaan had perjured herself in reference to the bank statements.

7The Court of Appeal dismissed the appeal on October 31, 2024.

8The applicant filed this motion on December 20, 2024.

9The applicant also initiated an action against counsel, Mr. Kostyniuk, in Brampton on the same basis, that is, that he suborned perjury. That action was dismissed as an abuse of process by Justice M.T. Doi on January 20, 2025.⁴

10In addition to finding that the appellant had not met the second and third prongs of the test set out in St. Amand regarding fresh evidence,⁵ the Court of Appeal firmly rejected the appellant’s submission that the bank records demonstrated perjury (referenced below).

11The applicant has not raised any new issue in this motion; he is simply attempting a different avenue to dispense with a decision that he is unhappy with.

Analysis

12The applicant rests his argument under section 59.06(2) primarily on International Corona Resources Ltd. v. LAC Minerals Ltd. (“LAC Minerals”). In that case, Osborne, J. sets out nine (9) factors to consider in a section 59.06(2) motion.⁷ I will review them below:

a. The fraud must be proven on a balance of probabilities.
b. The fraud must be material, that is, go to the foundation of the case.
c. The evidence must not have been known at the time of the trial.
d. The unsuccessful party at trial must show due or reasonable diligence in obtaining the evidence at the time of trial.
e. [relates to fraud of a non-party and is not applicable here].
f. The test on the unsuccessful party to obtain relevant evidence – that is what did the moving party know, and what ought they have known?
g. Delay will defeat the motion to set aside a trial judgment.
h. Relief under Rule 59.06(2) is discretionary – the conduct of the moving party is relevant.
i. The moving party must show that the judgment was procured by fraud, on the discovery of something material that was not discovered with reasonable diligence that would, in combination with the previously known facts, provide a reason to set aside the judgment.

13I reject the applicant’s argument that the transcripts disclose perjury. The transcripts clearly indicate that the respondent did not have the relevant bank statements before her at the time her evidence was given. The Court of Appeal directly addresses this at paragraph 30 of their decision, and I agree with the characterization of the evidence as follows:

Further, we reject Mr. LaFramboise’s submission that the bank records demonstrate perjury. Ms. Zwaan did not have her bank records in front of her when she was asked about the mortgage payments, nor is it likely she would have reviewed them in preparation for trial because Mr. LaFramboise failed to raise the issue of mortgage payments before trial. As we have said, the trial judge found Ms. Zwaan a credible witness. In making that finding, the trial judge recognized that Ms. Zwaan had to be reminded of certain events such as being advised in writing by Merk that the cheque would be made payable to both her and Merk. In all the circumstances, we are not persuaded that any inability on Ms. Zwaan’s part to recall what the arrangements were concerning the mortgage payments or what mortgage payments she made several years after the fact would have affected the trial judge’s assessment of her credibility when the issue was not raised before trial. In this regard, we note that, in her reply evidence, Ms. Zwaan pointed out that she did not have the documents in front of her.

14The bank statements of Ms. Zwaan were not relevant to the issue of whether Mr. LaFramboise deposited the check into his personal account without permission, rather than into his trust account. He did not plead this as a defence. I find that the statements do not go to the foundation of the case.

15Moreover, the Court of Appeal found that with reasonable diligence, the bank statements would have been available at the time of trial and Ms. Zwaan would have had an opportunity to review them and provide her evidence having done so. The applicant did not act with due diligence to obtain the evidence prior to the trial. The applicant ought to have known that the statements would exist had this been his intended defence.

16Ultimately, the defendants delayed bringing this motion until after receiving an unfavourable decision from the Court of Appeal. This is a blatant attempt to relitigate the issues already decided by the Superior Court of Justice and the Court of Appeal. Even if this delay is not significant enough to weigh against Mr. LaFramboise, I find his conduct in bringing collateral attacks following the dismissal by the Court of Appeal to be an abuse of process.

17Mr. LaFramboise was entitled to seek an appeal or to set aside the trial decision. He chose to appeal the trial decision. He now seeks a second course of action to set aside the court’s trial decision. Both as an abuse of process, and on the foregoing assessment on its merits, this motion is dismissed.

Costs

18The respondent was entirely successful on this application. Therefore, she is entitled to costs. The parties shall provide their submissions with respect to the issue of costs in writing, limited to three (3) typewritten pages, excluding attachments, as follows:

a. by or on behalf of the respondent, within 14 days of the date of these reasons; and
b. by or on behalf of the applicant, within 14 days of the receipt of the respondent’s submissions.

19Submissions received beyond these deadlines will not be considered.

Footnotes

1. 2Zwaan v. LaFramboise, 2024 ONSC 23
2. 3Zwaan v. LaFramboise, 2023 ONCA 800
3. 4LaFramboise v. Kostyniuk, 2025 ONSC 430, para. 3
4. 5ONCA decision, supra, at paras. 22-27.
5. 7Ibid., at pages 16-17.