The decision of the Court of Appeal in Ghasempoor v. ICapital Financial Services Corp., 2022 ONCA 60 is a good reminder that parties may not fare well if they have not actively participated throughout a proceeding.
In this case, the appellant, Mr. Ghasempoor, was the principal of the other appellant, Atciti web development services business. The appellants sought to overturn the grant of summary judgment on a motion granting judgment in respect of amounts found to be owed under a term loan agreement, and dismissing Mr. Ghasempoor's action in which he had sought damages from the harm he claimed had been caused to his credit rating from an alleged unreasonable demand for payment of the unpaid loan.
The appellants alleged procedural unfairness on appeal, even though Mr. Ghasempoor had not attended cross-examinations, did not respond to an offer of seven dates for the hearing of the motion, was warned in advance that his affidavit could be struck if he did not attend cross-examinations, and neither of the appellants attended the summary judgment motion hearing. Despite the appellants ' absence, the motion judge did not strike the affidavit, but rather weighed it and read the filings generously.
On appeal, the appellants sought to adduce fresh evidence that Mr. Ghasempoor did not attend the motion for medical reasons, which turned out to be a dental appointment where he was prescribed antibiotics. The Court of Appeal rejected the argument that there was any procedural unfairness to the appellants in the proceedings below and refused to admit the proposed fresh evidence on the appeal. The Court of Appeal commented that this fresh evidence did not establish that he could not attend the virtual hearing. The proposed fresh evidence was available with reasonable diligence, and did nothing to dispel the impression that the failure to attend the motion hearing was tactical.
