Citation and Court Information
CITATION: 3D Entertainments Ltd. v. Intelligent Creatures Inc., 2016 ONSC 1697
DIVISIONAL COURT FILE NO.: 664/15
DATE: 20160308
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
STEWART J.
BETWEEN:
3D ENTERTAINMENTS LTD. Respondent (Moving Party)
– and –
INTELLIGENT CREATURES INC. Appellant (Responding Party)
Counsel: Michael Meredith, for the Respondent (Moving Party) Randy Schliemann, for the Appellant (Responding Party)
HEARD at Toronto: March 8, 2016
Oral Reasons for Judgment
STEWART J. (ORALLY)
[1] This respondent on this appeal, 3D Entertainments Ltd., brings this motion to quash the appellant Intelligent Creatures Inc.’s appeal of the decision of Small Claims Court Deputy Judge Shapiro of November 16, 2015 which refused a request made on its behalf to adjourn the trial scheduled for that day.
[2] In its Amended Notice of Appeal, Intelligent Creatures Inc. submits that such refusal amounted to a denial of natural justice and deprived it of counsel at trial.
[3] In order to succeed on this motion, 3D Entertainments Ltd. must show that the appeal is demonstrably devoid of merit: see Schmidt v. Toronto Dominion Bank, 24 O.R. (3d) 1 (C.A.). In that decision, the Court stated that such a motion will seldom succeed because it is difficult to determine such a motion without hearing the entire appeal.
[4] The facts and circumstances surrounding the dispute itself and the status of the counsel who requested the adjournment are unusual. These peculiar features are set out in paras. 2 through 6 of the Amended Notice of Appeal and are not in serious dispute.
[5] In his attendance before the Deputy Judge on November 16, 2005, counsel portrayed himself as a “friend of the Court” and requested an adjournment since the propriety of his continuing as counsel for Intelligent Creatures Inc. had been called into question and therefore it was necessary for new counsel to be appointed to represent the company. 3D Entertainments Ltd. objected to any adjournment. No formal motion for an adjournment had been brought as required by the Small Claims Court rules.
[6] Accordingly, whether these circumstances operate to support a conclusion that the Deputy Judge ought to have granted an adjournment of the trial to bring such a motion or on his own motion ought to have adjourned the trial, or held the trial down to permit a representative of the company to attend to either speak to the request or defend the proceedings, is a principal ground of this appeal.
[7] This position may well not prevail ultimately but I cannot say at this time that it is manifestly devoid of merit. It is not necessary on this motion for Intelligent Creatures Inc. to show that its appeal will succeed. To defeat this motion, all it needs to show is that its appeal is not manifestly devoid of merit. In my opinion, it has done so.
[8] Accordingly, the motion is dismissed.
Costs
[9] I have endorsed the Motion Record, “For oral reasons delivered in Court today, this motion is dismissed. Costs as agreed at $3,000 are to be paid by the moving party/respondent to the responding party/appellant, inclusive of all disbursements and applicable taxes.”
STEWART J.
Date of Reasons for Judgment: March 8, 2016
Date of Release: March 14, 2016
CITATION: 3D Entertainments Ltd. v. Intelligent Creatures Inc., 2016 ONSC 1697
DIVISIONAL COURT FILE NO.: 664/15
DATE: 20160308
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
STEWART J.
BETWEEN:
3D ENTERTAINMENTS LTD. Respondent (Moving Party)
– and –
INTELLIGENT CREATURES INC. Appellant (Responding Party)
ORAL REASONS FOR JUDGMENT
STEWART J.
Date of Reasons for Judgment: March 8, 2016
Date of Release: March 14, 2016