



COURT OF APPEAL FOR ONTARIO

CITATION: Bajouco v. Green, 2017 ONCA 493

DATE: 20170615

DOCKET: M47338 (M46187)

Strathy C.J.O., Brown and Huscroft JJ.A.

BETWEEN

Florips Bajouco

Moving Party

and

Cindy Green

Responding Party

Florips Bajouco, acting in person

George Pakozdi, for the responding party

Heard: In writing

REASONS FOR DECISION

A.

Motion before this Court

[1]

Florips Bajouco moves for reconsideration of this courts decision denying
    leave to appeal, pursuant to rule 59.06(2) of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194, relying on fresh evidence and alleging fraud. The
    responding party, Cindy Green, seeks an order prohibiting Ms. Bajouco from
    making further motions in this proceeding without leave.

[2]

While this motion was under consideration by the court, Ms. Bajouco
    wrote to the Registrar of the court making unsworn allegations relating to this
    matter. We decline to consider this correspondence.

B.

Background

[3]

Ms. Bajouco and Ms. Green are neighbours. Ms. Green claimed damages as a
    result of flooding of her basement bathroom on four occasions between 2011 and
    2013. Before the Small Claims Court, Ms. Green alleged that her basement was
    flooded because of the periodic detachment of a downspout on Ms. Bajoucos
    property. Ms. Bajouco denied that her downspout was responsible for the
    flooding. She instead suggested that the flood might have been caused by sewer
    backup, water flow from the street, or Ms. Greens own downspout.

[4]

The trial judge found in favour of Ms. Green and awarded damages of
    $8,800.77, plus costs and disbursements of $1,515.12.

[5]

Ms. Bajouco appealed to the Divisional Court. The Divisional Court
    dismissed her appeal and ordered costs against her in the amount of $3,000. It
    noted, at para. 9:

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.

[6]

Ms. Bajouco sought leave to appeal to this court. This court denied her motion
    for leave to appeal on June 29, 2016.

[7]

Ms. Bajouco brought a motion seeking a stay of proceedings pursuant to
    rule 63.02 pending disposition of her motion for reconsideration. Justice Pardu
    denied the stay on February 22, 2017. She held, at para. 27, that [g]iven 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.

[8]

In seeking reconsideration of this courts decision denying leave to
    appeal, Ms. Bajouco relies on alleged fresh evidence she says she discovered in
    August 2016. According to Ms. Bajouco, this evidence is crucial to the
    decision made at the [Small Claims Court] trial. She also alleges Ms. Green
    committed fraud.

C.

Analysis

[9]

Before considering the test for granting leave to appeal, it is
    necessary to consider the alleged fresh evidence that Ms. Bajouco seeks to
    adduce.

(1)

Fresh Evidence

[10]

Ms. Bajouco seeks to adduce a floor plan that she claims shows that Ms.
    Greens bathroom is located on the west side of the basement, rather than the
    east. Ms. Bajouco argues that this is contrary to Ms. Greens testimony before
    the Small Claims Court. This is supposedly relevant because Ms. Greens
    downspout is on the west wall and Ms. Bajoucos downspout is on the east wall.

[11]

Ms. Bajouco also says that the bathroom is directly over Ms. Greens
    sewer line. From this, she asserts that either Ms. Greens own downspout or back-up
    water from the sewer caused the flooding.

[12]

Ms. Bajouco also relies on a photograph that she claims demonstrates the
    City of Toronto found 50 percent calcium obstruction in the sewer line. She
    submits that the calcium obstruction could have caused the flooding. The photograph
    provided by Ms. Bajouco is dated July 30, 2016. She also provides photographs
    depicting work performed by the City of Toronto on the sewer and drainage
    system in October and November 2016.

[13]

Ms. Bajouco seeks to adduce documents in support of her claim that Ms.
    Green misrepresented her true identity to the courts. She submits that the land
    registration documents indicate the owner of the land is Cynthia Green,
    rather than Cindy Green (as Ms. Green identified herself at trial).

[14]

Ms. Bajouco also submits that Ms. Green fabricated invoices and letters
    from the contractors.

[15]

The test governing the admissibility of fresh evidence on appeal was
    outlined by the Supreme Court in
R. v. Palmer
, [1980] 1 S.C.R. 759, at
    p. 775. It requires satisfaction of the following four criteria: (i) the
    evidence could not have been adduced at trial; (ii) the evidence must be
    relevant in that it bears on a decisive or potentially decisive issue; (iii)
    the evidence must be reasonably capable of belief; and (iv) the evidence must
    be such that, if believed, it could reasonably, when taken with the other
    evidence adduced at trial, be expected to have affected the result.

[16]

The proposed fresh evidence does not satisfy the
Palmer
test. As
    Pardu J.A. noted in dismissing the motion for a stay, most of the matters
    described as fresh evidence were, in fact, dealt with at trial.

[17]

At trial, Ms. Bajouco suggested that the flooding was caused by Ms.
    Greens own downspouts since the bathroom is located on that side of the house.
    The trial judge rejected this possibility by finding Ms. Bajouco liable.

[18]

Further, it is not clear how the floor map was obtained and whether it
    is accurate and reliable.

[19]

The flooding occurred between 2011 and 2013. The relevance of calcium in
    the sewer lines and construction work done by the City of Toronto in 2016 is tenuous
    at best and could not reasonably be expected to have affected the result at
    trial.

[20]

The issue at trial was liability for the flooding of Ms. Greens
    basement. Nothing about the name listed on the land registration documents is
    relevant to the determination of that issue.

[21]

Finally, Ms. Bajouco had an opportunity to challenge the accuracy of the
    letters and invoices from the contractors at trial. She simply repeats these
    allegations here without providing any additional evidence that would call into
    question the validity of these documents.

[22]

Accordingly, we decline to admit the fresh evidence.

(2)

Leave to Appeal

[23]

Ms. Bajouco seeks leave to appeal on the basis that the trial judge
    improperly relied on Ms. Greens allegedly false testimony and documents,
    failed to provide sufficient reasons, improperly reversed the burden of proof,
    and applied the wrong causation test.

[24]

The test for granting leave to appeal from a final decision of the
    Divisional Court acting in its appellate capacity was established by this court
    in
Sault Dock Co. Ltd. v. Sault Ste. Marie (City)
, [1973] 2 O.R. 479
    (C.A.). Such decisions are intended to be final and review of those decisions is
    the exception to the general rule:
Sault Dock
, at p. 480.

[25]

Leave may be granted in cases that present an arguable question of law
    or mixed fact and law on the interpretation of legislation; the interpretation,
    clarification or propounding of a general rule or principle of law; the
    interpretation of a municipal by-law where the point in issue is a question of public
    importance; or the interpretation of an agreement where the point in issue
    involves a question of public importance:
Sault Dock
, at p. 481.

[26]

The court may also grant leave where special circumstances make the
    matter one of public importance, or where it appears in the interests of
    justice that leave should be granted:
Sault Dock
, at p. 481. Finally,
    leave may be granted where there is a clear error in the judgment below:
Sault
    Dock
, at p. 481.

[27]

This case does not fall into any of the above categories. The proposed
    appeal is largely fact-based and does not raise questions that are of
    importance to the public generally. There is also no clear error below.

[28]

Most of Ms. Bajoucos proposed grounds of appeal seek to impugn the
    trial judges assessment of the evidence and to retry the case. Even if the
    purported fresh evidence was admissible, it would not justify granting leave in
    this matter.

[29]

The arguments about the sufficiency of reasons, burden of proof, and
    causation were appropriately addressed by the Divisional Court. The only matter
    that was seriously at issue before the trial judge was the cause of the
    flooding. The evidence before the trial judge was capable of supporting a
    finding that Ms. Bajoucos waterspout was responsible for the basement
    flooding.

[30]

There is no basis for this court to vary its earlier order. The motion
    for reconsideration is dismissed.

(3)

Prohibition on Further Motions

[31]

The responding party seeks an order under rule 2.1.02. Pursuant to rule
    2.1.02(3), when the court makes an order staying or dismissing a motion that
    appears to be frivolous, vexatious or an abuse of process, the court may also
    make an order prohibiting the moving party from making further motions in a
    proceeding without leave.

[32]

This court will monitor motions relying on rule 59.06 to ensure that the
    motion is not frivolous, vexatious or otherwise an abuse of process:
Hoang
    v. Mann Engineering Ltd.
, 2015 ONCA 838, at para. 15.

[33]

We are satisfied that in the context of this entire proceeding,
    including Ms. Bajoucos attempt to adduce fresh evidence and her recent
    correspondence with the Registrar, this motion is vexatious and an abuse of
    process and an order should issue under rule 2.1.02.

D.

disposition

[34]

For these reasons, the motion for reconsideration is dismissed, with
    costs to the responding party in the amount of $3,500, inclusive of
    disbursements and all applicable taxes. Ms. Bajouco is prohibited from bringing
    further motions in these proceedings without leave of the court.

George R. Strathy
    C.J.O.

David Brown J.A.

Grant Huscroft J.A.


