Jeffrey A. Dicker

The plaintiff's action was dismissed after the trial judge refused to grant a third adjournment.

The plaintiff, who was unrepresented after his lawyer was removed from the record, failed to retain new counsel in time for the peremptory trial date and failed to pay the costs thrown away from a previous adjournment.

The Court of Appeal dismissed the appeal, holding that the trial judge's refusal was justified given the plaintiff's lack of diligence in retaining counsel and his failure to comply with the court's costs order.

The appellant, an unsecured creditor in a bankruptcy, obtained an order under s. 38 of the Bankruptcy and Insolvency Act to recover $100,000 US paid by the bankrupt to the respondent after the bankruptcy.

The application judge allowed the respondent to retain a portion of the funds on the basis of an implied trust and s. 99(1) of the BIA.

The Court of Appeal allowed the appeal, finding that the three certainties of a trust were not met and that s. 99(1) did not apply.

The respondent was ordered to pay the appellant the $100,000 US.