



COURT OF APPEAL FOR ONTARIO

CITATION:

Heaney v. Wiznet
    Inc., 2013 ONCA 115

DATE: 20130222

DOCKET: C55153

Cronk, Epstein and Lauwers JJ.A.

BETWEEN

Adam Heaney, David Gilbert and Ken Chasse

Plaintiffs (Appellants)

and

Wiznet
    Inc., Wiztel Inc., Fraser Mason, Jeff
    Mason and 1038088 Ontario Limited

Defendants (Respondents)

Daniel Zacks, for the appellants

Cheryl Boyd, for the respondents

Heard and released orally: February 15, 2013

On appeal from the order of Justice James M. Spence of
    the Superior Court of Justice (Commercial List), dated January 20, 2012.

ENDORSEMENT

[1]

The appellants appeal from the order of Spence J. of the Superior Court
    of Justice, dated January 20, 2012, dismissing their statement of claim.  In
    our view, the appeal must be dismissed.

[2]

The record before the motion judge confirmed that the appellants, who
    have been embroiled in this litigation for many years, were given multiple
    opportunities to file affidavit evidence in response to the respondents motion
    to strike their pleading.  They failed to do so.

[3]

The record also established that the appellants had not honoured several
    outstanding costs orders of the Superior Court of Justice and had failed to
    respond to outstanding undertakings in accordance with time limits repeatedly
    set by Superior Court judges.

[4]

These facts, by themselves, amply supported the motion judges key
    holding:

In summary, the Plaintiffs have received considerable
    indulgence from the Court as set out in the materials filed by the Moving
    Parties.  Now, after all this indulgence, they seek further indulgence but they
    do not provide any adequate and reliable reasons for the request.

[5]

It is therefore unnecessary for the disposition of this appeal to address
    the appellants claim that oral evidence from the self-represented appellants
    was improperly received and relied on by the motion judge.  The record itself
    grounded the motion judges ruling to strike the appellants statement of
    claim.  His ruling fully accords with the principles enunciated by this court
    in
1196158 Ontario Inc. v. 6274013 Canada Ltd.
, 2012 ONCA 544.

[6]

Accordingly, we see no basis for appellate interference with the motion
    judges discretionary ruling.

[7]

The respondents are entitled to their costs of this appeal, fixed in the
    total amount of $7,000, inclusive of disbursements and all applicable taxes. 
    If the respondents require further direction to enable payment out of court of
    the funds currently held in court to the credit of this appeal, we may be
    spoken to through the Registrar.

E.A. Cronk J.A.

Gloria Epstein
    J.A.

P. Lauwers J.A.


