DATE: 20000229
DOCKET: C32371
COURT OF APPEAL FOR ONTARIO
IN THE MATTER OF STANDARD TRUST COMPANY
AND IN THE MATTER OF THE TRUST COMPANIES ACT,
R.S.C. 1985, c.T-20, as amended
AND IN THE MATTER OF THE WINDING-UP ACT
R.S.C. 1985, c.W-11, as amended
RE: MIST MANAGEMENT INFORMATION SECURITY TEMPEST
INTERNATIONAL INC. (Applicant/Appellant) v. ERNST
& YOUNG INC., THE PERMANENT LIQUIDATOR OF STANDARD
TRUST COMPANY (Respondent/Respondent in Appeal)
BEFORE: AUSTIN, LASKIN AND BORINS JJ.A.
COUNSEL: B. Frydenberg, for the appellant
W.E. Pepall for the respondent
HEARD: February 16 and 17, 2000
On appeal from the order of Farley J. dated May 27, 1999
E N D O R S E M E N T
[1] This is an appeal from an order made by Farley J. sitting in
the Commercial List dismissing an appeal from the rejection of a
claim made by the appellant in a particular winding-up, the
circumstances of which I will describe below.
[2] Farley J. dismissed the appeal for want of prosecution.
Central to the appeal before us is an order made by Farley J.
refusing an adjournment sought by counsel for the appellant on
the return of the respondent’s motion to dismiss the appeal for
want of prosecution.
[3] In refusing the request for an adjournment by counsel for
the appellant, it is apparent that Farley J. was aware of the
context in which the request was made. It is helpful to review
that context in some detail.
[4] The appellant originally brought an action against Standard
Trust Company for damages arising from the sale of a property
under power of sale. The action was commenced on February 16,
- When Standard Trust Company was wound-up by court order on
July 19, 1991, this action had apparently not progressed to trial
and it was accordingly stayed by the order of the court. The
appellant did not seek leave to continue its action. Rather, on
July 20, 1994, it delivered a creditor’s proof of claim to the
liquidator of Standard Trust Company, who is the respondent in
this appeal. The claim, in essence, repeated the position taken
by the appellant in its action. On February 14, 1995, the
liquidator disallowed the claim. On March 10, 1995, the
appellant appealed the disallowance of the claim to the
Commercial List. The appellant took no steps to advance its
appeal. As a result, on June 5, 1998, the respondent’s solicitor
informed the appellant’s solicitor of his intention to move for
an order to dismiss the appeal for want of prosecution. However,
the appellant continued to do nothing in respect to its appeal.
So much for the background of the respondent’s motion brought on
February 25, 1999, to dismiss the appeal for want of prosecution.
[5] This motion was set down for hearing on the Commercial List
pursuant to the provisions of the Practice Direction of that
branch of the court which requires the parties to agree to the
date a motion will be heard. However, the appellant, in the
three months prior to the return of the motion, filed no
responding material. It was represented by a law firm in Ottawa.
However, it retained a Toronto law firm to appear for the limited
purpose of asking for an adjournment because of an apparent
conflict between the appellant and its solicitors, or some other
conflict which the solicitors had perceived.
[6] Farley J. declined to grant an adjournment. He proceeded
with the motion in the absence of counsel for the appellant. Not
surprisingly, he dismissed the appeal for want of prosecution.
[7] When the above circumstances are taken into consideration,
we are satisfied that Farley J. did not err in the exercise of
his discretion in refusing an adjournment, and in dismissing the
appeal. We do not agree that the appellant was the victim of a
failure to be accorded fundamental justice on the ground that the
court dealt unfairly with its interests. It is difficult to
understand how it can assert procedural unfairness as its
principal ground of appeal when it has done nothing since March
10, 1995 to advance its appeal, delivered no materials responding
to the motion for dismissal for want of prosecution although it
had three months to do so, provided no explanation to Farley J.,
or this court in respect to the nature of the conflict which had
arisen, and provided no explanation to Farley J., or this court,
for the delay in respect to both advancing its appeal and
responding to the motion. Moreover, it has provided no
information with respect to the merits of its appeal. There is
little wonder that Farley J. refused to grant the adjournment.
[8] The fact that the respondent neither consented, nor
objected, to the proposed adjournment is important only as
constituting a factor which Farley J. was entitled to take into
consideration in the exercise of his discretion.
[9] For all of the reasons we are satisfied that Farley J. acted
judicially in the exercise of his discretion in refusing to grant
an adjournment. We are also satisfied that he did not err in
dismissing the appeal for want of prosecution.
[10] Accordingly, the appeal is dismissed with costs.
“Austin J.A.”
“John I. Laskin J.A.”
“S. Borins J.A.”