COURT OF APPEAL FOR ONTARIO

DATE: 20060119

DOCKET: C43674

RE: EUROMART INTERNATIONAL BANCORP INC. (Plaintiff/Respondent) v. DENNIS CHEDLI, SUDIR HANDA, 1298953 ONTARIO INC., SINNATHAMBY VIJAYASINGHAM and NUTOK CORPORATION (Defendants/(Appellant Chedli)) – and – SUDHIR HANDA and SINNATHAMBY VIJAYASIGNHAM (Plaintiffs by Counterclaim) v. EUROMART INTERNATIONAL BANCORP. INC. (Defendant by Counterclaim/Respondent)

BEFORE: DOHERTY, GILLESE and ARMSTRONG JJ.A.

COUNSEL: Alan S. Price for the appellant James McReynolds for the respondent

HEARD & ENDORSED: January 18, 2006

On appeal from the judgment of Justice Romain W.M. Pitt of the Superior Court of Justice dated May 26, 2005.

A P P E A L B O O K E N D O R S E M E N T

[1] The motion judge had a discretion to grant or refuse the requested adjournment for the purposes of allowing the appellant to examine a non-party on the motion. In exercising that discretion, the motion judge properly took into consideration the appellant’s failure to exercise due diligence in seeking to examine the non-party. The motion had been adjourned in January 2005 and scheduled for May 2005. Counsel took no meaningful steps to obtain the evidence of the non-party until late April. We would not interfere with the manner in which the motion judge exercised his discretion.

[2] For the reasons given by the motion judge, the assertion by the appellant that he repaid the debt to the plaintiff by payment to Mr. Usling, an officer of the plaintiff corporation, does not raise a genuine issue for trial as between the plaintiff and the appellant.

[3] The appellant’s bald assertion in his affidavit that the $200,000 promissory note was forged cannot raise a triable issue given his explicit admission in his statement by defence that he in fact signed that note. No motion was brought in the Superior Court for leave to withdraw the admission per Rule 51.05. No motion has been bought in this court.

[4] Counsel’s informal request in this court that he be allowed to bring a motion in the Superior Court to withdraw the admission comes too late and is unsupported by material addressing the relevant considerations in a Rule 51.05 motion.

[5] The appeal is dismissed. Costs to the respondent in the amount of $10,000, inclusive of disbursements and GST.