





CITATION:
Pezzolesi
v.
Skeggs
, 2011
          ONCA 253



DATE: 20110401



DOCKET: C52929



COURT OF APPEAL FOR ONTARIO



Sharpe, Gillese, Karakatsanis JJ.A.



BETWEEN



Lorenzo
Pezzolesi



Plaintiff (Appellant)



and



Frederick J.
Skeggs



Defendant (Respondent)



Jonathan L. Rosenstein, for the plaintiff/appellant



John Paul
Paciocco
, for the
          defendant/respondent



Heard & released orally:
March 25, 2011



On appeal from the order of
          Justice J.A.S. Wilcox of the Superior Court of Justice dated October 13,
          2010.



ENDORSEMENT



[1]

The motion to admit fresh evidence is dismissed.  Clearly everything in the appellants
    affidavit tendered as fresh evidence was available at the time the motion was
    heard.  It is tendered on the basis that
    the appellant was denied a fair opportunity to present his case as a
    self-represented litigant.  We are unable
    to accept that proposition.  The
    appellant was represented by counsel until one week before the motion which had
    been served more than nine months earlier.  He had filed an affidavit responding to the motion.  In view of the language, style and tone of
    that affidavit and the fact that it was sworn by the appellants solicitor, we
    find it difficult to accept the appellants assertion that he drafted the
    affidavit on his own.

[2]

The motion judge had before him an affidavit that
    certainly appeared to have been prepared by the appellants solicitor and, as
    recited in
para
. 21 of his reasons, he did afford the
    appellant an opportunity to make his case:

[21] Mr.
Pezzolesi
then
    spoke for himself.  The only evidence on
    his behalf that was properly before the court in response to the Defendants
    motion to dismiss the action was his affidavit of September 22, 2010.  He attempted to give evidence in a rambling,
    incoherent fashion, making mention of many points that were not covered in his
    affidavit.  The court offered him plenty
    of opportunity to focus his argument and respond to the submissions of counsel
    for the Defendant, which he was ultimately unable to do so.

[3]

On this record, we are not persuaded that to the extent
    the motion judge refused the appellant the right to adduce oral or additional
    documentary evidence, he erred.  Nor are
    we persuaded that there is anything in the way the motion judge treated the
    appellant as a self-represented litigant that would justify the admission of
    the fresh evidence that has been tendered.

[4]

Second, and in any event, we agree with the respondent
    that the motion judge did not err by dismissing the action for delay.  This action was commenced in 1995.  It was based on a 1989 transaction for a
    $13,000 purchase of land and damages of $750,000 are claimed.  Even on the appellants version advanced in
    the fresh evidence that he promptly complied with Del
Frate
J.s 2003 order for production, we are still left with an inexcusable delay in
    moving this action forward. There is evidence that a key witness has died and
    that memories have faded and hence that there would be prejudice to the
    respondent if the case were allowed to proceed in the face of the lengthy delay.

[5]

Accordingly, the appeal is dismissed.  Costs to the respondent fixed at $9,000
    inclusive of disbursements and applicable taxes.

Robert J. Sharpe J.A.

E.E. Gillese J.A.

Karakatsanis J.A.


