CITATION: Luypaert v. Bianchi, 2007 ONCA 217

DATE: 20070327

DOCKET: C45812

COURT OF APPEAL FOR ONTARIO

RE:

RENE D. LUYPAERT (Appellant) – and – ROBERT GRAZIANO BIANCHI and MCAP SERVICE CORPORATION (Respondents)

BEFORE:

ROSENBERG, ARMSTRONG and JURIANSZ JJ.A.

COUNSEL:

Rene Luypaert

In person

Steven W. Pettipiere

for the respondent

HEARD & RELEASED ORALLY:

March 21, 2007

On appeal from the order of Justice Thomas M. Dunn of the Superior Court of Justice dated July 24, 2006.

E N D O R S E M E N T

[1] In our view, these proceedings were fatally flawed. After the motion judge refused the adjournment application, he immediately gave judgment without giving the appellant an opportunity to make submissions on the merits of the motion. We are also of the view that it was not reasonable to refuse the adjournment. We say that for the following reasons:

(1) The unrepresented appellant was served with voluminous materials only days before the scheduled date, even though most of this material had been available for months.

(2) The need for an adjournment arose because of a change in the date of a commitment by the lawyer that the appellant had hoped to retain and the appellant was only seeking a short adjournment.

(3) The effect of the adjournment was to deprive the appellant of legal representation in a case raising contested factual and legal issues.

[2] Accordingly, the appeal is allowed and the order is set aside.

[3] Costs to the appellant for the motion and the appeal fixed at $3,500 inclusive of G.S.T. and disbursements.

Signed: "M. Rosenberg J.A."

"Robert P. Armstrong J.A."

"Russell G. Juriansz J.A."