COURT FILE NO.: 540/02
DATE: 20030218
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
then, benotto S.J. and greer jj.
B E T W E E N:
ARTHUR SILBER and 2969050 CANADA INC.
Applicants
- and -
SLMSOFT.COM INC.
Respondent
Janice Wright and Donald J. Park, for the Applicants
Zubin Zarolia, for the Respondent
HEARD: February 18, 2003
benotto S.J.: (Orally)
[1] Mr. Zarolia attended this morning on behalf of SLMSOFT.COM INC. requesting an adjournment so that new counsel could be retained. His firm has not been retained, indeed no one has yet been retained.
[2] It is opposed on the basis that there is prejudice that cannot be compensated in costs. That prejudice, it is argued, is found in a pattern of delay by SLM contrived to defeat the claims of Arthur Silber and the numbered company.
[3] It is argued that a review of SLM's financial statements reveal weak solvency ratios which bring into question the ability of SLM to satisfy the judgment.
[4] This appeal was set for today on November 12th last. At that time SLM was represented by Gowling Lafleur Henderson. On January 10th of this year, Justice Colin Campbell on consent removed Gowling Lafleur Henderson from the record. It is clear therefore that SLM knew some time before January 10th that it would need new counsel for today. A term of Justice Campbell's order was that SLM shall within 30 days after being served with this order:
(a) appoint a new solicitor of record by serving a Notice under subrule 15.03(2); or
(b) obtain and serve an Order under subrule 15.01(2) granting it leave to be represented by a person other than a solicitor.
Neither of these things has happened. The Order was served on January17th.
[5] Opposing counsel wrote to SLM on January 22nd indicating an intention to proceed with the appeal today. Another letter was written on February 6th in somewhat stronger terms. No response was received to either letter. Counsel for Silber and the numbered company brought a motion February 12th to dismiss the appeal.
[6] It is clear that SLM has done nothing to comply with the order of Justice Campbell. Moreover there is no evidence as to why this public company has done nothing to comply with the order or to advance the appeal. A review of the faxes as articulated by Ms. Wright confirms that there has been a pattern of delay in the case.
[7] We therefore have decided to grant the adjournment but only on the following terms:
(i) the appeal will be heard on May 9th, peremptory to SLM;
(ii) SLM shall either pay into Court or post a letter of credit of a chartered bank in the amount of $332,675 within 15 days from today's date. If the letter of credit or payment into Court is not completed within 15 days, Arthur Silber and the numbered company may move ex parte to have the appeal of SLM dismissed;
(iii) SLM will serve and file its factum in response to the interest issue no later then March 31st;
(iv) SLM shall amend the title of proceedings to reflect its new name within 10 days;
(v) the costs thrown away be paid by SLM by certified cheque forthwith in the amount of $5,000 plus GST.
THEN J.
[9] The appeal record is endorsed as follows: "This appeal is adjourned in accordance with the oral reasons of the Court delivered by Madam Justice Benotto delivered this day. Costs to the respondent in the amount of $5,000 plus GST to be paid forthwith by certified cheque."
THEN J.
BENOTTO S.J.
GREER J.
Date of Reasons for Judgment: February 18, 2003
Date of Release: February 27, 2003
COURT FILE NO.: 540/02
DATE: 20030218
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
then, benotto S.J. and greer jj.
B E T W E E N:
ARTHUR SILBER and 2969050 CANADA INC.
Applicants
- and -
SLMSOFT.COM INC.
Respondent
ORAL REASONS FOR JUDGMENT
BENOTTO S. J.
Date of Reasons for Judgment: February 18, 2003
Date of Release: February 27, 2003