2017 ONSC 4950, 2017 ONSC 4950

CITATION : CCC No. 396 v. Claude Alain Burdet et al., 2017 ONSC 4950 COURT FILE NO.: 09-45430 DATE: 2017/08/18 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) CARLETON CONDOMINIUM CORPORATION NO. 396 Plaintiff – and – CLAUDE ALAIN BURDET, IN TRUST, CLAUDE-ALAIN BURDET1457563 ONTARIO CORPORATION, 1457563 ONTARIO CORPORATION IN TRUST, JANET SUE BURDET, NELSON STREET LAW OFFICES, L’ACADÉMIE CHRISTIANE SAUVÉ INC., INTERNATIONAL BEAUTY DEPOT, AND ENTREPRISES TED RUBAC INC. Defendants ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Gary G.

Boyd, Counsel for the Plaintiff Claude-Alain Burdet, Counsel for the Defendants ) ) HEARD: In writing ENDORSEMENT GOMERY, J. [ 1 ] On December 23, 2014, the trial judge held that the defendant condominium owners owed Carleton Condominium Corporation No. 396 nearly $300,000 in condominium fees and that liens registered by CCC 396 against some units were valid. The defendants appealed. On May 25, 2016, the Court of Appeal dismissed the appeal. The defendants applied for leave to appeal to the Supreme Court of Canada.

The Court dismissed this application on December 22, 2016. [ 2 ] The defendants have now served a motion asking that all previous proceedings be set aside, and for judgment in their favour. They rely on an affidavit sworn by Luc André Burdet dated March 7, 2017. The defendants say that the affidavit contains new facts establishing that a miscarriage of justice may occur if the motion is not allowed.

Their motion is set for a two day hearing in February/March 2018. [ 3 ] Pursuant to Rule 21.02(1), I find the motion is frivolous and vexatious or otherwise an abuse of process of the court and should therefore be dismissed. [ 4 ] A party may seek to have an order set aside on the ground of fraud or of facts arising or discovered after it was made (Rule 59.06(2)). The defendants are not alleging any fraud by CCC 396, so to succeed in the motion they would have to present new evidence that justifies setting aside the trial judge’s decision.

They would also have to show that they did not have the means to discover this

evidence earlier. The burden on a Rule 59.06(2) motion is high. [ 5 ] On its face, Luc André Burdet’s affidavit does not contain any facts that arose after December 23, 2014 or that could not have been reasonably discovered prior to that date. The only even superficially new fact is a February 2, 2017 order in another lawsuit involving CC 396 and condominium owners ( Dewan v. Burdet , Court file no. 01-CV-18977). [ 6 ] Some of the defendants moving to set aside the trial judge’s decision are also defendants in the Dewan action. They knew what was at issue in that action.

Moreover, the trial in Dewan began before the release of the December 23, 2014 decision in this case. It is accordingly absurd for the defendants to allege that the February 2017 decision constitutes a new fact justifying the re-opening of this case. [ 7 ] Dewan was heard by the same judge as the trial judge in this lawsuit. He would therefore be aware of any contradictions between the evidence or outcome in Dewan and this lawsuit. Given this familiarity, the defendants should be eager to have him rule on their motion. Despite this, they have requested that this motion be heard by a different judge.

I infer from this that the defendants continue to be unhappy with the trial judge’s decision and seek to use his decision in Dewan to mount a collateral attack on it. This is obviously not an appropriate basis for a Rule 59.06(2) motion. [ 8 ] The motion is dismissed with costs to CCC 396 fixed at $500.00, inclusive of HST and disbursements. Justice S. Gomery Released: 2017/08/18 CITATION : CCC No. 396 v.

Claude Alain Burdet et al., 2017 ONSC 4950 COURT FILE NO.: 09-45430 DATE: 2017/08/18 BETWEEN CARLETON CONDOMINIUM CORPORATION NO. 396 Plaintiff – and – CLAUDE ALAIN BURDET, IN TRUST, CLAUDE- ALAIN BURDET1457563 ONTARIO CORPORATION, 1457563 ONTARIO CORPORATION IN TRUST, JANET SUE BURDET, NELSON STREET LAW OFFICES, L’ACADÉMIE CHRISTIANE SAUVÉ INC., INTERNATIONAL BEAUTY DEPOT, AND ENTREPRISES TED RUBAC INC. Defendants Justice S. Gomery. Released: 2017/08/18