DATE: 20030411

DOCKET: C39056

COURT OF APPEAL FOR ONTARIO

RE: THE SOCIETY OF LLOYD’S (Applicant (Respondent))

• and - BRUCE BLAIR PHILIP (Respondent (Appellant))

BEFORE: ROSENBERG, MACPHERSON and SIMMONS JJ.A.

COUNSEL: L. Pick For the appellant

G. Benchetrit For the respondent

HEARD: APRIL 10, 2003

On appeal from the order of Justice Paul L. Dilks of the Superior Court of Justice dated October 1, 2002.

APPEAL BOOK E N D O R S E M E N T

[1] Dilks J. had a discretion whether or not to grant the adjournment and we are not persuaded that he erred in the exercise of that discretion. The appellant had ample time to prepare materials to respond to the application and had been put on notice that he should provide materials and that the respondent would be opposing any further adjournments.

[2] The proposed fresh evidence concerning whether the appellant was bound by the earlier judgement and the stop-loss insurance was available well before the application and the appellant has not provided any satisfactory explanation for the lack of diligence in presenting the evidence before the application judge. That fresh evidence is not admissible. The respondent concedes that the information concerning the New York litigation was not available at the time of the application. That information would not, however, change the result. It merely confirms the view of the application judge that there is no quick end in sight to that litigation and the possibility that the appellant would be able to satisfy the whole or a substantial part of the judgment with the credit notes is still speculative.

[3] The appellant has not demonstrated he had any defence to the application and given the history of this matter the adjournment application was properly dismissed.

[4] The appeal is dismissed with costs fixed at $1,500 inclusive of disbursements and GST.