COURT FILE NO.: DC-06000264-00

DATE: 20070307

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

RE: Claudia Toste (Plaintiff) and Mark G. Baker and Mark G. Baker o/a Baker & Company (Defendants)

BEFORE: Justice Cumming

COUNSEL: Marcus Knapp, for the Defendants David Conn, for the Plaintiff

HEARD: March 7, 2007

E N D O R S E M E N T

CUMMING J.

The Appeal

[1] This is an appeal of the Small Claims Court decision of Deputy Judge Baker dated May 5, 2006. There is a single issue- was Judge Baker’s refusal to grant an adjournment at the Defendants’ request at the hearing unreasonable such that the decision at the conclusion of the ensuing trial is properly to be set aside?

Background

[2] The Plaintiff, Claudia Toste, worked as a law clerk in the office of the Defendant lawyer/law firm, Mark G. Baker o/a Baker & Company. Ms. Toste’s successful claim was for alleged unpaid overtime during the currency of her employment with the Defendants.

[3] Ms. Toste commenced her claim in Small Claims Court January 13, 2005. Her supporting materials (including client lists in Schedule D) were appended to her claim.

[4] The pre-trial took place July 7, 2005. The record indicates that at this point the Defendants expressed concern about a need for confidentiality in respect of the Defendants’ client list.

[5] The trial was initially scheduled for January 16, 2006. It was adjourned to May 5, 2006 at the request of the Defendants. The Defendants then sought (by a letter to the Plaintiff April 3, 2006) to bring a motion for a sealing order in respect of some of Ms. Toste’s supporting materials, advising that they could not obtain a date for the return of the motion before the rescheduled May 5, 2006 hearing date. As such, the Defendants sought a further adjournment in advance of that hearing date.

[6] By this point the Plaintiff had retained counsel who made it clear by letter of April 6, 2006 that such request for a further adjournment was opposed and that the Plaintiff wanted to proceed with the trial May 5, 2006.

[7] The Defendants were represented by counsel at the hearing May 5, 2006 but were not prepared to proceed to trial. The Defendant Mr. Baker was reportedly out of the country and could not attend because he was recuperating from a medical procedure.

[8] Defendants’ counsel also submitted to Deputy Judge Baker that the Defendants wished to file an amended defence but this was objected to by counsel for the Plaintiff as being outside the time limits.

[9] The trial judge refused the requested adjournment and proceeded with the trial, finding in favour of the Plaintiff and giving judgment for $10,000.

[10] The Defendants say that there would have been no prejudice to the Plaintiff in granting the adjournment that could not have been compensated for by costs whereas the Defendants were prejudiced inasmuch as there was claimed prejudice in not having the sealing order and also because they were then not prepared to lead oral evidence from the absent employer Defendant Mr. Baker.

Disposition

[11] The trial judge heard the submissions in respect of the requested adjournment. His reasons suggest he is reticent to grant adjournments generally in Small Claims Court proceedings and suggest he was skeptical as to the reasons asserted for the particular adjournment. However, he gave the Defendants counsel a full opportunity to make submissions and did weigh the question of prejudice in exercising his discretion on the issue of the adjournment.

[12] While the trial judge’s reasons for refusing the adjournment are not as explicit as one would ideally prefer, his overall comments implicitly address the issue of dealing with a small claim expeditiously in fairness to the parties. Justice unreasonably delayed is justice denied.

[13] It is apparent that the Defendants could easily have proceeded to move for the sealing order, and submitted the purported amended defence, well in advance of the trial. Moreover, its is apparent the Defendants knew they were at risk in not being prepared to proceed May 5, 2006, in that they knew full well the Plaintiff was not consenting to a second adjournment. No medical evidence was presented at the hearing to support the Defendants’ assertion that Mr. Baker could not attend because of medical problems. Mr. Baker’s counsel simply made an oral submission that there was a medical problem as the reason for his absence.

[14] The onus is upon the Defendants to establish a basis for the requested exceptional relief of overturning on appeal a refused request for adjournment by the trial judge. See generally Thunderstone Quarries Ltd. v. Three Sisters Resorts Inc., [2004] A.J. No. 232 (C.A.). The Defendants have not met this onus, notwithstanding the able submissions of their counsel on this appeal.

[15] In my view, considering all the circumstances as set forth in the record, there is no good reason to interfere with the discretion exercised by Deputy Judge Baker in refusing the adjournment.

[16] For the reasons given, the appeal is dismissed.

Costs

[17] Submissions were made as to costs. Other issues had been raised by the Defendants in advance of today’s hearing, but abandoned at the outset, such that considerable wasted preparation was required by the Plaintiff’s counsel.

[18] I fix the costs in respect of this appeal, payable by the Defendants to the Plaintiff on a partial indemnity scale at $2535.00, inclusive of GST and all disbursements, said costs to be payable to the Plaintiff forthwith.

CUMMING J.

DATE: March 7, 2007