DATE: January 17, 2004

DOCKET: C42064

COURT OF APPEAL FOR ONTARIO

RE:

VW CREDIT CANADA INC. (Plaintiff (Respondent)) – and – GAMAL ELGUINDY and AFRODITE ELGUINDY (Defendants (Appellants))

GAMAL ELGUINDY and AFRODITE ELGUINDY (Plaintiffs by counterclaim (Appellants)) – and - VW CREDIT CANADA INC. (Defendant by counterclaim (Respondent))

BEFORE:

WEILER, MOLDAVER and SIMMONS JJ.A.

COUNSEL:

Gamal Elguindy

In person

No one appearing for Afrodite Elguindy

Kelly Charlebois

For VW Credit Canada Inc.

HEARD & ENDORSED:

January 14, 2005

On appeal from the judgment of Justice Katherine Swinton of the Superior Court of Justice dated June 22, 2004.

A P P E A L B O O K E N D O R S E M E N T

[1] The appellants’ motion for adjournment was abandoned.

[2] Assuming without deciding that the claim and counterclaim should have proceeded under the ordinary rules and not the simplified rules, we would nonetheless dismiss the appeal.

[3] With respect to the judgment in favour of the respondent on the claim, we are satisfied that the simplified procedure occasioned no prejudice to the appellants and that the outcome would necessarily have been the same had the matter proceeded under the ordinary rules. In short, the appellants’ material raised no defence to the respondent’s claim and cross-examination would have been futile and only increased the costs.

[4] As for the counterclaim, the motion judge effectively concluded that it failed to disclose a reasonable cause of action or was otherwise frivolous. We agree. Accordingly, we would not interfere with her disposition.

[5] In the result, the appeal is dismissed. No costs.