DATE: 20050201

DOCKET: C40935

COURT OF APPEAL FOR ONTARIO

RE:

JAMES MURPHY (Plaintiff/Respondent) – and – ELEANOR WERRY IN HER CAPACITY AS EXECUTOR OF THE ESTATE OF THE LATE GRANT COLE WERRY, and ALBERT WERRY (Defendants/Appellant)

BEFORE:

MOLDAVER, BLAIR and LAFORME JJ.A.

COUNSEL:

Mario Mannarino

for the defendant/appellant, Albert Werry

Sean E. Cumming

for the plaintiff/respondent, James Murphy

HEARD & RELEASED ORALLY:

January 27, 2005

On appeal from the judgment of Justice James B. Chadwick dated October 14, 2003.

E N D O R S E M E N T

[1] The appellant seeks to set aside the judgment of Chadwick J. dated October 14, 2003, on the ground that the trial judge refused to grant an adjournment at the trial because the appellant was not present. He also contested the quantum of damages awarded and the dismissal of his counter-claim.

[2] In May 2003, a trial date was fixed for October 14, 2003 in Ottawa. On October 10, the defendant’s counsel served a motion to be removed as solicitor of record. The next day, he met with his client in Ottawa. At the opening of trial, counsel withdrew the motion to get off the record, but sought an adjournment of the trial for a day given the absence of his client (who lives near Bowmanville, about four hours drive from the Ottawa Court House). No evidence was tendered before Chadwick J. to explain why Mr. Werry was not present for trial or prepared for trial and none was tendered here as fresh evidence. There is simply no such explanation.

[3] The trial judge’s decision whether or not to grant adjournment is entitled to considerable deference. He or she must consider the interests of the parties and the interests of the administration of justice in the orderly processing of civil trials on their merits. See Khimji v. Dhanani Estate, [2004] O.J. No. 320 (C.A.). We are satisfied that Chadwick J. took all such interests into account in deciding to deny the adjournment, and particularly given the appellant’s lack of explanation for not being present or prepared for trial, we see no basis for interfering with that decision.

[4] As to the merits of the action and the counter-claim, there was ample evidence before the trial judge to support his decision that the appellant was personally liable and also to support his finding as to the quantum of damages. No evidence was tendered by the appellant on the counter-claim and the respondent answered the allegations in his evidence, in any event. The trial judge was therefore justified in allowing the action and dismissing the counter-claim.

[5] While damages were awarded in excess of the amount claimed in the statement of claim, the calculation was no surprise to the defendant, as it was based upon a spreadsheet provided to the defendant well before trial, and there is therefore no prejudice. To the extent an amendment to the prayer for relief in the statement of claim is necessary, it is hereby granted.

[6] The appeal is therefore dismissed.

“M.J. Moldaver J.A.”

“R.A. Blair J.A.”

“H.S. LaForme J.A.”