DATE: 20040426

DOCKET: C40350

COURT OF APPEAL FOR ONTARIO

RE: VECTOR PRECISION MOLDS INC. (Appellant (Respondent)) – and – GE CAPITAL CANADA EQUIPMENT FINANCING INC. (Respondent (Applicant))

BEFORE: McMURTRY C.J.O., ABELLA and ROSENBERG JJ.A.

COUNSEL: Joseph Markin

For the appellant

Tom Robson

For the respondent

HEARD: April 22, 2004

RELEASED ORALLY: April 22, 2004

On appeal from the judgment of Justice Emile R. Kruzick of the Superior Court of Justice dated June 19, 2003, made in Owen Sound, Ontario.

E N D O R S E M E N T

[1] The appellant’s former counsel indicated that he had to withdraw from the case. He attended before the motions judge to request an adjournment. He indicated that he believed Mr. Markin was prepared to be counsel of record. The motions judge agreed to adjourn the motion until 3:00 p.m. to permit Mr. Markin to file a Notice of Change of Solicitor and arrange dates for cross-examination. The motions judge was told by former counsel that he was unable to contact Mr. Markin because he was in another court. The motions judge therefore refused the adjournment and dismissed the counter-application and granted the application.

[2] In our view, this was not a reasonable exercise of discretion. The motions judge knew Mr. Markin was in court and that former counsel had not been able to contact him. There is no basis for the suggestion that former counsel’s decision to remove himself from the record was itself a delaying tactic.

[3] The appellate courts are of course very reluctant to interfere with the decisions of motions judges with respect to adjournments. However, the motions judge should have given the appellant a reasonable time to make the necessary arrangements to confirm that new counsel would act for it.

[4] Accordingly, the appeal is allowed and the order of Kruzick J. is set aside.

Signed: “R. Roy McMurtry CJO”

“M. Rosenberg J.A.”

Abella J.A. (dissenting)

[5] The issues in this appeal turn on the entire history of this application, not merely the events of June 19, 2003 before Kruzick J.

[6] Based on that history, I see no error in the discretion exercised by the motions judge. The record before him and O’Connor J. reflects a blatant pattern of delay and disregard for a series of judicial orders, orders which had attempted to accommodate the many previous requests by the appellant for special consideration. The situation on June 19, 2003 was one of the appellant’s own making, and what it seeks is this court’s further indulgence based on its own non-compliance with the indulgences granted below.

[7] I would dismiss the appeal.

Signed:_____ “R.S. Abella J.A.”