SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Leonard Susman, Plaintiff, Respondent
-and-
George Zafir and Coldmatic Refrigeration of Canada, Inc. et al, Defendants/Appellants
HEARD: October 15, 2007
BEFORE: Lane, J.
COUNSEL: Kristine Anderson, for the Appellant;
Plaintiff in person.
E N D O R S E M E N T
1The defendants appeal from the judgment of Deputy Judge Freeman of the Small Claims Court dated October 19, 2006 awarding the plaintiff $8229.09 and costs and interest on his claim for an unpaid account for legal services rendered. The heart of the appeal is the refusal by the trial judge to adjourn the matter at the request of the defendants.
2The legal fees sued for by the plaintiff, a solicitor, arose from his successful defence of an action brought by one Joseph de Gasperis against Mr. Zafir. No other person or entity is shown as a defendant on the Statement of Claim in that case (Ex. 1 at the trial; tab 1 of the defendant’s compendium). In this present case, Mr. Zafir pleaded that the company Coldmatic Refrigeration, of which he was the President, had actually retained Mr. Susman. Out of caution, Mr. Susman added Coldmatic as a defendant but it did not put in a defence and was noted in default.
3Two days before the date for trial in the Small Claims Court, Mr. Zafir faxed to Mr. Susman:
I see that the trial in this matter is scheduled for this Thursday. In preparing for the matter I have determined that I need to retain legal counsel for Coldmatic, and therefore I am writing to request that you consent to an adjournment on Thursday. Please call me as soon as possible so we can make these arrangements. If you do not consent, I will turn up at Court and make the request myself.
4Mr. Susman did not consent. Mr. Zafir sought the adjournment. He said the case had become more complicated because he had found that Mr. Susman sometimes acted as a judge in Richmond Hill so he would like to bring a lawyer. And it was the first time of asking for a delay and the case was so complicated he could not do it alone. The trial judge asked what was the complication and Mr. Zafir said he had been put in as George Zafir “but it was a Coldmatic case.” The judge asked if he had been sued personally in the main action. Mr. Zafir said:
“Coldmatic Refrigeration.
Q. Were you sued?
A. I was not sued.
By Mr. Susman: George Zafir is the main defendant, your Honour.
Mr. Zafir : I was president of Coldmatic Refrigeration.
The Court: I asked you if you were sued in that case and you said you weren’t sued.
A. I don’t think I was sued.
5The judge asked for a copy of a pleading and was shown what became Exhibit 1, showing Mr. Zafir as the only defendant:
The Court: It seems to me, Mr. Zafir, that you were the only defendant in this action.
A. I was just the president of the company.
Q. Sir, I asked you earlier if you were sued. You said you didn’t know. You must …
Mr. Zafir: I would like to adjourn this case your Honour.
6There then followed submissions by Mr. Susman pointing out that Mr. Zafir had written asking for an adjournment to get legal counsel, not for himself but for Coldmatic, which had been noted in default; that Mr. Zafir had previously had counsel and terminated them some eight months earlier, so he had that time to replace counsel. Mr. Zafir repeated that he needed counsel because Mr. Susman knew most of the judges. The trial judge said that he did not know Mr. Susman. Mr. Zafir said it was the first time of asking for an adjournment.
7Mr. Susman then made submissions that there had been an order for costs made in the main action; that Mr. Zafir was garnisheeing these funds and keeping them and they were nearly paid off. If the trial was delayed, the funds would all be collected and not available to satisfy the solicitor’s account. Mr. Zafir stated that the money garnisheed had been “put in Coldmatic Refrigeration and I’m not taking it out”.
8At this point, the trial judge checked on the availability of future trial dates and determined there were none in the near future. He then offered Mr. Zafir a choice: to pay the amount of the claim into court within 10 days and have his adjournment; or to proceed at once with the trial. Mr. Zafir refused to choose and demanded an adjournment as of right and without any kind of strings attached. The trial judge said the matter would proceed but Mr. Zafir refused to do so and walked out of the courtroom.
9The trial proceeded in his absence. The Statement of Claim in the main action was proved, showing Mr. Zafir as the only defendant. Mr. Susman gave evidence of the retainer by Mr. Zafir, the agreed rate and the subsequent proceedings culminating in 100% victory for his client, Mr. Zafir, including an award of $17,000 for costs. The letter asking for the adjournment to obtain counsel for only Coldmatic was marked as exhibit 3.
10Regrettably, the Deputy Judge gave no formal reasons. However, this is one of those cases where the colloquy among the judge and the two parties permits appellate review because it reveals clearly the basis for the trial judge’s refusal of the adjournment except upon the term which he proposed and which Mr. Zafir refused. Clearly, the judge was concerned that the motive for seeking the adjournment was to facilitate the collection by Mr. Zafir of the last of the costs from Mr. de Gasperis before Mr. Susman could garnishee them. The proceedings before him amply support this concern, particularly:
- the untruth told by Mr. Zafir about the parties to the main action;
- the admission by Mr. Zafir that he had been collecting the funds;
- the implausible statement that Mr. Zafir wanted counsel for Coldmatic which was not a party to the main action and had not defended the present action;
- the lateness of the request;
- the flat refusal of Mr. Zafir to consider any terms.
11Ms. Anderson submitted for Mr. Zafir that there was an obligation on the trial judge to take into account the interests of both parties, and that he had only considered those of Mr. Susman. There was no evidence that the delay until the next available date for trial would be prejudicial to Mr. Susman; the trial judge did not give appropriate consideration to the fact that Mr. Zafir was unrepresented and it was the first time of asking for an adjournment. She referred to the case of Khimji v Dhanani 2004 12037 (ON CA), 69 O.R. (3d) 790 (C.A.) especially at para. 14 where, although in dissent as to the result, Laskin J.A. stated that a trial judge enjoys a wide latitude in deciding whether to grant or refuse an adjournment; the decision is discretionary, but should be exercised by balancing the interests of the parties and of the administration of justice. The majority of the court adopted the principles set out by Laskin J.A., but stressed that the adjournment was only required because the appellant had not acted in a timely way to obtain the counsel he said he needed (paragraphs 27 and 28) and that “strong deference is due to the decision of those in the trial courts who are responsible for the day-to-day maintenance of an efficient and just system of civil trials” (paragraph 36).
12In my view, the Deputy Judge did consider the interests of both parties. He actually offered Mr. Zafir an adjournment upon an entirely reasonable term: to pay into court the amount of the claim, which he admitted he had been collecting and claimed was intact in the possession of his company Coldmatic. Thus on his own statement Mr. Zafir was in funds for whatever he had collected. To permit him to obtain the balance of the costs would certainly be prejudicial to Mr. Susman whose efforts, so far unpaid, had obtained those monies for Mr. Zafir. Mr. Zafir admitted to the judge that he had already assured Mr. Susman that he would be paid (transcript page 2 line 5), thus casting some doubt upon the bona fides of the defence. In my view, the Deputy Judge exercised his discretion upon the proper principles.
13In the result, the appeal is dismissed. Costs, on the basis of a party appearing in person, should follow the event. If necessary submissions in writing may be made within 15 days of the release of these reasons as to amount.
Lane, J.
DATE: October 18, 2007