





CITATION:
Sawaged v. IPC (Investment
          Planning Counsel), 2011 ONCA 827



DATE:  20111222



DOCKET: C53202



COURT OF APPEAL FOR ONTARIO



OConnor A.C.J.O., Laskin and Cronk JJ.A.



BETWEEN



Naim Sawaged



Defendant in Claim and Plaintiff in Third Party
          Claim (Appellant)



and



IPC (Investment Planning Counsel) & Liberty
          International



Plaintiff in Claim and Defendant in Third Party
          Claim (Respondents)



Naim Sawaged, appearing in person



Meredith L. Hayward, for the defendant (respondent) IPC
          (Investment Planning Counsel)

M. Edward Key, for the defendant (respondent) Liberty
          International



Heard and released orally:
December 16,
          2011



On appeal from the judgment of Justice
          G. T. Trotter of the Superior Court of Justice, dated December 20, 2010.



ENDORSEMENT



[1]

We conclude that the appeal must be dismissed.

[2]

We do not accept Mr. Sawageds argument that the trial judge erred in
    refusing his request for an adjournment.  A trial judge enjoys latitude in
    deciding whether to grant or refuse an adjournment of a scheduled civil trial. 
    In dismissing Mr. Sawageds request, the trial judge considered, properly in
    our view, the age of the case (seven years), the fact that the trial date had
    been set one year earlier and the fact that another judge at the second pre-trial
    conference had refused a similar adjournment request.

[3]

The trial judge dismissed both the claim against Mr. Sawaged and his
    counterclaim.  IPC does not appeal the dismissal of its claim.

[4]

Mr. Sawaged argues that the trial judge erred in dismissing his
    counterclaim.  His counterclaim for defamation was based on arguments that IPC
    acted improperly in settling the claim by Mr. Sawageds client, in terminating
    his employment and in reporting the events to the regulators.  The trial judge
    found that IPC was entitled to take these actions based on the results of its
    investigation.  The investigation revealed that Mr. Sawaged engaged in sloppy
    business practices, inaccurate reporting of client income, and co-mingling of
    funds.  There was evidence to support these conclusions.  We see no basis to
    interfere.

[5]

The trial judge also dismissed Mr. Sawageds counterclaim for mental
    distress.  There was no evidence to establish compensable mental distress. 
    Given the last minute production of the letter from Mr. Sawageds family
    doctor, the trial judge was entitled to reject its admission into evidence.  In
    any event, the letter did not meet the threshold to establish the mental
    distress claim.

[6]


[7]

The trial judge also found that the letter of September 18th did not
    satisfy the notice requirements of this claims made and reported policy.  The
    letter merely referred to a complaint that could be a potential claim.  It
    provided no details of the complaint, nor did it say when the complaint was
    made.  The letter did not provide any details that would enable Liberty International
    to determine if there was coverage or not.
[8]

In the result, the appeal is dismissed.  Costs of the appeal to IPC are
    fixed in the amount of $7,500, inclusive of disbursements and all applicable
    taxes.  Costs of the appeal to Liberty International are fixed in the amount of
    $6,000, inclusive of disbursements and all applicable taxes.
Dennis
    OConnor A.C.J.O.
John
    Laskin J.A.

E.A.
    Cronk J.A.
