



COURT OF APPEAL FOR ONTARIO

CITATION: Matusovski v. Tzaferis, 2017 ONCA 881

DATE: 20171120

DOCKET: C63932

Cronk, Huscroft and Nordheimer JJ.A.

BETWEEN

Vladen Matusovski

Plaintiff (Appellant)

and

Alexander B. Tzaferis and Tzaferis & Furtado
    LLP

Defendants (Respondents)

Vladen Matusovski, acting in person

B. Robin Moodie and Bronwyn M. Martin, for the
    respondents

Heard and released orally: November 15, 2017

On appeal from the order of Justice Grant R. Dow of the Superior
    Court of Justice, dated March 13, 2017.

REASONS FOR DECISION

[1]

Mr. Matusovski appeals from the order of Dow J. dated March 13, 2017
    that dismissed his action and ordered him to pay costs fixed at $44,440.24
    together with costs thrown away of $1,142.86.

[2]

This action was a claim in negligence against the defendant lawyers who
    had acted for Mr. Matusovski on a companion action that Mr. Matusovski had
    commenced against an insurance company arising from a motor vehicle accident in
    which Mr. Matusovski was involved. The action against the insurance company was
    earlier dismissed apparently because Mr. Matusovski failed to comply with
    orders that the court had made regarding the payment of costs.

[3]

This action was dismissed for a different reason. It was dismissed
    because Mr. Matusovski twice failed to attend for a defence medical examination
    that he had been ordered to attend. Part of Mr. Matusovskis claim arising out
    of the motor vehicle accident was that he had sustained a brain injury. The
    defence wished to have Mr. Matusovski examined by a neurologist.

[4]

Contrary to Mr. Matusovskis position before this court, not only did
    Mr. Matusovski fail to attend the defence medical twice, the transcript confirms
    that he made it abundantly clear before the motion judge that he had no
    intention of ever attending any such medical examination. Mr. Matusovski is of
    the view that the defence already has sufficient medical information about him.

[5]

It is not up to Mr. Matusovski to unilaterally decide that he will not
    comply with a court order. If Mr. Matusovski did not believe that there was a
    sufficient basis for ordering him to attend a defence medical examination, then
    he ought to have appealed the order that required him to do so. That he did not
    do.

[6]

The motion judge excused Mr. Matusovskis first failure to attend the
    defence medical examination. He gave Mr. Matusovski another chance. However,
    Mr. Matusovski did not avail himself of that second opportunity.

[7]

Given that Mr. Matusovski had made it clear to the motion judge that he
    would not attend any defence medical examination, he left the motion judge with
    no alternative but to dismiss his claim. There is no proper basis for us to
    interfere with that decision. The proposed fresh evidence, even if admitted,
    does not alter our conclusions.

[8]

Mr. Matusovski raises certain other issues in his factum including his
    complaint about a case management judge being appointed and that his other
    action ought not to have been dismissed. However, none of the issues he raises
    is properly before us as part of this appeal and we cannot address them.

[9]

The appeal is dismissed. There will be no order as to costs.

E.A. Cronk J.A.

Grant Huscroft J.A.

I.V.B. Nordheimer J.A.


