



COURT OF APPEAL FOR ONTARIO

CITATION: Bajouco v. Green, 2017 ONCA 155

DATE: 20170222

DOCKET: M47467

Pardu J.A (In Chambers)

BETWEEN

Florips Bajouco

Moving Party

and

Cindy Green

Respondent

Florips Bajouco, acting in person

Rebecca Huang, appearing as duty counsel

George Pakozdi, for the respondent

Heard: February 9, 2017

ENDORSEMENT

[1]

Ms. Florips Bajouco moves for a stay of proceedings pursuant to rule 63.02
    of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194.

[2]

She expressed a concern about late service of the respondents
    materials, but elected to proceed with this matter, with the assistance of duty
    counsel, rather than seek an adjournment.

[3]

Judgment was granted in favour of the respondent on the motion,
    Ms. Cindy Green in the Small Claims Court for $8,800.77, together with
    costs in the amount of $1515.12. The respondent sued the moving party, her
    neighbour, alleging that the moving partys failure to keep the downspout
    connected on her half of the semi-detached house caused flooding in the
    respondents home on four occasions between 2011 and 2013. The moving party
    denied that her downspout had ever been disconnected. She suggested that the
    flooding might have been caused by sewer backup, water flow from the street or
    the respondents own downspout. Both parties were represented by counsel at the
    trial. The Small Claims Court judge found in favour of the respondent,
    concluding that the moving partys downspout had been disconnected and that
    this had caused the flooding.

[4]

The moving party appealed to the Divisional Court. The Divisional Court
    dismissed her appeal, observing, at paras. 9 and 13-16:

Although Bajouco has raised several issues on her appeal, most
    of them seek to impugn the trial judges assessment of the evidence at trial
    and to have this Court rehear the case. In my view, none of the points
    argued on behalf of Bajouco amount to demonstrating any reversible error of law
    or palpable or overriding error with respect to any findings of fact made by
    the trial judge or with respect to her application of the law to those facts.



There was evidence at trial upon which the trial judge could
    rely to support a finding that the downspout had become detached and had caused
    flooding onto Greens property. The trial judge did not make any palpable and
    overriding error in her assessment of the evidence in that regard, including in
    her assessment of the credibility of the witnesses. It is evident from the
    trial judges reasons that Greens evidence as to the cause of the flooding was
    accepted by her, and that all other possible causes of flooding and damage
    advanced by Bajouco were systematically analyzed and rejected.

By engaging in this deductive reasoning, the trial judge did
    not improperly shift the burden of proof to the Defendant.

The trial judge was entitled to assign no weight to the City of
    Toronto record tendered by Bajouco as evidence at trial. Although the
    document was entered as a business record, its contents were disputed by Green. 
    Its author was not called to give evidence at trial. The trial judge did
    not rely on the notation on the document as to the source of the flooding and,
    rather, accepted Greens evidence as being both credible and reliable on the
    issue.  It was within the proper scope of the role of the trial judge to
    do so.

Similarly, there was evidence adduced upon which the trial
    judge could rely in arriving at her assessment of damages.  Various bills
    and estimates were tendered by Green to support the repair costs she
    claimed.

[5]

Costs in the Divisional Court were awarded to the respondent in the sum
    of $3,000.

[6]

On June 29, 2016, this court dismissed the moving partys motion for
    leave to appeal and awarded costs to the respondent in the sum of $1,500.

[7]

She has now filed a motion pursuant to r. 59.06(2) to ask the panel that
    refused her motion for leave to appeal to reconsider that decision. That
    material is not before me.

[8]

In her affidavit she says that there has been fresh evidence discovered
    relating the flooding in the respondents basement and that the evidence is
    crucial to the decision made at trial.

[9]

At trial, the respondent testified that the flooding in her basement
    caused damage to her basement bathroom. The moving party says that she has
    discovered that a photograph of this bathroom used by the respondent to support
    her claim at trial was a photograph of the west wall of the house where the
    bathroom was located and that this was right by her own downspout.

[10]

The moving party also submits that the respondent made changes to or
    falsified a letter from a company called Watertite relating to repairs caused
    by flooding.

[11]

The moving party also relies on a Watertite invoice dated August 6,
    2013, indicating work was done on her west wall and under her porch. She alleges
    that the respondents shower stall is directly over her sewer line and that the
    respondent has been flooding her own basement.

[12]

The moving party submits that the trial judge erred in many respects and
    that in July 2016 the City of Toronto discovered a 50 percent calcium
    obstruction in the city sewer line affecting almost every house on the street.

[13]

She says the respondent pleaded a claim for $24,800 but did not prove
    that at trial and that the respondent did not provide her true identity to the
    court, calling herself Cindy Green, rather than by her legal name Cynthia
    Green.

[14]

She says finally that the respondent lied under oath at trial.

[15]

Most of the matters described by the moving party as amounting to fresh
    evidence were in fact dealt with at trial.

[16]

The possibility that damage to the respondents bathroom might be caused
    by the respondents own downspouts was raised by the moving party at trial. She
    testified:

And then, there is also a picture of the plaintiffs
    downspouts. She has two downspouts located along the side of her home. Those
    downspouts do not point away from her property; those downspouts are actually
    right up against her, uh, side. They, um, I believe most likely is the reason
    why shes had the flooding in her bathroom, cause her bathroom is located on
    that side, um, and Im assuming  I will assume that is why shes had the
    flooding  its coming from her roof water.

[17]

Similarly she alleged in her evidence that the respondent altered the
    letters from Watertite.

[18]

The Watertite invoice dated August 6, 2013 was also before the trial
    judge.

[19]

I am not satisfied that the discovery in July 2016 of calcium in the
    sewer lines would have been material to the conclusions reached by the trial
    judge.

[20]

Nothing in the material filed before me persuades me that the Divisional
    Court judge erred in dismissing the moving partys appeal.

[21]

Rule 63.02 provides that a final order may be stayed on terms as are
    just by an order of a judge of the court to which a motion for leave to appeal
    has been made or to which an appeal has been taken.

[22]

The respondent argues there is no appeal outstanding. The motion for
    leave has been dismissed, and r. 63.02 does not give authority to stay
    proceedings where a motion for reconsideration is awaiting disposition under rule
    59.06(2).

[23]

Assuming, without deciding, that there is authority under r. 63.02 to
    stay enforcement of the Small Claims Court judgment and the related costs
    awards pending a decision on a motion asking the panel to reconsider its
    refusal to grant leave to appeal, I am not persuaded that the moving party has
    met the test for a stay set out in
RJRMacdonald Inc. v. Canada (Attorney
    General)
, [1994] 1 S.C.R. 311, at p.
    344
.

[24]

As indicated in
Meridian Credit Union Limited v. Baig
, 2016
    ONCA 942, at para. 7, a party seeking to re-open an appeal after the appeal
    decision has been rendered faces a high hurdle, and a court will re-open an
    appeal sparingly and only where it is clearly in the interests of justice.

[25]

Here the moving party is seeking to re-litigate in this court the same
    factual issues that were before the trial judge, on essentially the same
    evidence that was before the trial judge.

[26]

There is no evidence of impecuniosity on the record before me, nor of
    the impact of enforcement of the judgment.

[27]

The respondent has had judgment since July 8, 2014 and has been unable
    to enforce it. The moving party has been refused relief on appeal twice, and
    she is now attempting a third appellate review by motion to reverse the refusal
    of leave. Given the nature of the factual issues now raised, the absence of any
    error by the Divisional Court and the hurdle faced by the moving party in
    obtaining a change in the decision of this court refusing leave, I am not
    persuaded that a stay of enforcement should be granted. I recognize that the
    time until the panel decides whether to reconsider the refusal of leave might
    not be lengthy, but in the absence of evidence of irreparable harm, and
    weighing the balance of convenience, the motion is dismissed, with partial
    indemnity costs in favour of the respondent in the sum of $2500.00 inclusive of
    disbursements and applicable taxes.

G. Pardu J.A.


