Court of Appeal for Ontario

Citation: L’Image Enterprises v. 2255816 Ontario Inc. (Cucina Moda), 2016 ONCA 883

Date: 2016-11-22

Docket: C62104

Before: Weiler, Rouleau and Roberts JJ.A.

Between:

L’Image Enterprises Plaintiff (Respondent)

and

2255816 Ontario Inc. c.o.b. as Cucina Moda Defendant (Appellant)

Counsel: Leonard Hochberg, for the appellant Flora Poon, for the respondent

Heard and released orally: November 8, 2016

On appeal from the judgment of Justice G. Dow of the Superior Court of Justice, dated April 11, 2016.

ENDORSEMENT

[1] The appellant argues that the motion judge erred in denying the request for a second adjournment of the respondent’s motion for summary judgment.

[2] On February 26, 2016, the matter had come to the court for hearing. Because the lawyer of record had advised that he was being removed as counsel of record, the motion was adjourned to April 11 and marked peremptory to the appellant Cucina Moda.

[3] It was made clear to Mr. Sharqui, a director of the appellant who was present at the hearing, that by the return date he had to have either brought a motion for leave to represent the company himself or the corporation had to be represented by counsel. The motion judge also explained what peremptory to Cucina Moda meant in the circumstances.

[4] When the matter returned for hearing on April 11, the judge refused the further request for an adjournment. He allowed Mr. Sharqui, however, to make submissions on the summary judgment motion. The appellant, through Mr. Sharqui, did not provide any evidence supporting its concerns about the amount claimed by the respondent. As a result, the motion judge granted summary judgment in favour of L’Image Enterprises for the amount claimed with costs.

[5] In our view, the appeal should be dismissed. The decision whether to grant an adjournment was discretionary and is owed deference on appeal. Here, despite being aware of the peremptory date, Cucina Moda did not take adequate steps to retain counsel before April 11. The case was not complex and, other than bald statements made in submissions by Mr. Sharqui, there was no evidence provided to contradict the allegations advanced in the statement of claim and the material filed on the motion.

[6] We see no error in the way the motion judge exercised his discretion in denying the adjournment nor in his granting judgment given the absence of any material in support of Mr. Sharqui’s submissions. There was no procedural or substantive unfairness.

[7] For these reasons, the appeal is dismissed. The respondent is entitled to its costs fixed in the amount of $5,500 inclusive of disbursements and applicable taxes.

“K.M. Weiler J.A.”

“Paul Rouleau J.A.”

“L.B. Roberts J.A.”