Court File No.: 278 /08

Released: 20090227

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Re: Grigor Sprostranov, Plaintiff/Appellant

• and -

State Farm Mutual Automobile Insurance Company, Defendant/ Respondent

Before: Karakatsanis J.

Counsel: Michael Rotondo, as agent for Mark Koskie, counsel for the Appellant

Kelly Lauzon, counsel for the Respondent

Heard at Toronto: February 23, 2009

ENDORSEMENT

[1] The appellant/plaintiff seeks to set aside the decision of Deputy Judge Priddle dated May 2, 2008, dismissing the plaintiff’s action with costs of $1,000 payable to the defendant. The Deputy Judge refused to grant the plaintiff an adjournment and when the plaintiff led no evidence, he dismissed the action.

[2] At issue in this appeal is whether the Deputy Judge erred in exercising his discretion not to grant an adjournment of the trial. A trial judge should be afforded a high degree of deference by an appellate court and should be interfered with only where the decision is not based upon a full and proper inquiry, is not reasonable and contrary to the interests of justice.

[3] In Khimji v. Dhanani, (2004), 2004 12037 (ON CA), 69 O.R. (3rd) 790 at para .14 (C.A.), Laskin J stated:

A trial judge enjoys wide latitude in deciding whether to grant or refuse the adjournment of a scheduled civil trial. The decision is discretionary and the scope for appellate intervention is correspondingly limited. In exercising this discretion, however, the trial judge should balance the interests of the plaintiff, the interest of the defendant and the interests of the administration of justice in the orderly processing of civil trials on their merits. In any particular case, several considerations may bear on those interests. A trial judge who fails to take account of relevant considerations may exercise his or her discretion unreasonably and if, as a result, the decision is contrary to the interests of justice, an appellate court is justified in intervening.

[4] Laskin J. set out a number of considerations including: a just determination of the real matters in dispute; prejudice caused by refusing or granting an adjournment; the plaintiff’s explanation for not being ready for trial; the length of the adjournment being requested and disruption to the court’s trial schedule.

[5] In this case the action was started in January 2007. Counsel had acted for the plaintiff since June 2007. There were two settlement conferences and counsel for the plaintiff had set the matter down for trial in March 2008. May 2, 2008 was the first trial date. At issue in this litigation was the value of a car damaged in a motor vehicle action. The defendant insurer claimed it had a value of $1800. The plaintiff claimed it had been professionally restored and was worth $10,000.

[6] Counsel for the plaintiff, Mr. Koskie, called counsel for the defendant on the eve of trial at 4:45 pm to request his consent to an adjournment. There was no consent and Mr Koskie appeared in court the following morning and sought an adjournment.

[7] Mr. Koskie advised the court that the plaintiff required an adjournment to obtain documents not presently in the possession of the plaintiff, which the plaintiff was not aware of previously. He said it would have the effect of changing the value of the claim, potentially, or what he would be able to put before the court. In response to a number of questions from the trial judge, Mr. Koskie said he was talking about documents with the insurance broker and with the value of the car and perhaps the nature of the insurance policy he had. He said there was a possibility that the documents would affect the nature of the claim, the value of the claim and the broker might be added as a party for improperly valuing the car. When asked by the judge how recently the plaintiff became aware of this, he replied that it was just yesterday afternoon, when Mr. Koskie was meeting with him. Mr. Koskie advised that it would take a week or two to get the documents; that the plaintiff had not attended as counsel was confident the adjournment would be granted; and that the plaintiff’s witness was not available that day although that was not a ground of the adjournment request.

[8] Mr. Butler, counsel for the defendant opposed the adjournment because counsel had been retained for almost a year, there had been two settlement conferences, documents had been exchanged, Mr. Koskie had advised several months earlier that the broker would not be added as a party, a further settlement conference would be required if a party was added, and it was too late in the process for documentary discovery.

[9] The Deputy Judge made every effort to enquire about the reason for the adjournment, how vital the documents were, why they were not available earlier, and what kind of documents they were. He considered an adjournment with costs to compensate the defendant for the attendance of counsel and a witness but ultimately agreed with the counsel for the defendant that an adjournment should not be granted. The Deputy Judge held the matter down for three hours to allow the plaintiff and the witness to attend.

[10] The Deputy Judge was willing to reconsider the request for an adjournment upon the attendance of Mr. Dennis, a paralegal with Mr. Koskie’s firm. Mr. Dennis advised that the elderly plaintiff had received a lot of documents relating to the value of the car just recently from his insurance broker, who was the one who was insuring the car. He advised that documents were brought in late on the day before, that Mr Koskie was not involved with this meeting with the client, and that they had not had time to prepare a book of documents. He explained that the documents appeared to relate to previous insurance, with the same premium, that had valued the car at $10,000.

[11] It is clear that this experienced Deputy Judge made every effort to understand the nature of the documents and how they impacted upon the proceedings. He asked numerous questions. He was not, however, meaningfully assisted by counsel. Mr. Koskie clearly had not seen the documents, was vague and somewhat confusing about both the nature of the documents and what the effect of the documents might be. He gave no adequate explanation about why the documents were not produced earlier. Based upon information given by Mr. Dennis in the afternoon, counsel at the very least was misinformed because the plaintiff had provided the documents to Mr. Dennis in their meeting the day before.

[12] The Deputy Judge’s decision is understandable given the nature of the submissions made by Mr. Koskie in the morning. The Deputy Judge was patient and made every effort to be fair and reasonable. I am persuaded however that the interests of justice required that the plaintiff be granted the adjournment. Notwithstanding the other considerations, it was necessary to consider the important principle that, as far as possible, cases should be resolved on their merits. The plaintiff should not bear the consequences of his counsel’s failure to adequately assist the Deputy Judge with respect to why it would be prejudicial to the plaintiff to proceed when this was a first appearance and prejudice to the defendant could have been easily remedied by a costs award. The paralegal Mr. Denis ultimately gave sufficient explanation about the nature of the documents and why they were necessary to a just determination on the merits.

[13] I therefore allow the appeal and set aside the order dismissing the claim. The cost award of $1,000 to the defendant stands. It was conceded on behalf of the appellant, and I agree, that the costs awarded by the Deputy Judge should stand to compensate the respondent for the lengthy attendance on May 2, 2009.

[14] I am indebted to both Mr. Rotondo and Ms Lauzon for their excellent submissions.

[15] With respect to costs of the appeal, I exercise my discretion not to award the successful party his costs. This appeal would have been entirely unnecessary if Mr. Koskie had properly informed himself and provided the trial judge with clear and consistent reasons to support his request for the adjournment. (Nor has the exact nature of the documents ever been explained.) Furthermore, the respondent has had to bear costs attributable to an adjournment of this appeal. This appeal was originally scheduled for January 28, 2009. Mr. Koskie’s office telephoned Ms Lauzon’s office on January 27th to seek an adjournment due to a scheduling conflict but was advised that the respondent would not consent. Later that day, at 4:45 pm, Mr. Koskie telephoned to advise Ms Lauzon that he required an adjournment due to a family emergency. Although he agreed to accept the next available date, he was also not available on the date set for January 30, 2009. As a result, the respondent is entitled to credit for the cost of the original attendance and some time to refresh her preparation. For these reasons, it is fair and reasonable that there be no order for costs for the appeal.

Karakatsanis J.

Released: February 27, 2009