



COURT OF APPEAL FOR ONTARIO

CITATION: Smith v. GCAT Group Inc., 2021
    ONCA 700

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)

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
    Masters 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 judges order because of the
    appellants complaint about their counsels strategy and we do not admit the
    fresh evidence that purports to demonstrate counsels 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.


