Court File and Parties

COURT FILE NO.: SC-05-00026671-0000 DATE: 2008/10/10 SUPERIOR COURT OF JUSTICE - ONTARIO (DIVISIONAL COURT)

RE: GENCI VINCANI v. MARIO VANGJELI

BEFORE: JUSTICE D. BELLAMY, J.

COUNSEL: Domenic Saverino for the appellant/defendant Vangjieli Genci Vincani, in person, for the respondent/plaintiff

HEARD AT TORONTO: October 10, 2008

ENDORSEMENT

Bellamy, J.

[1] This is an appeal of Deputy Judge J. S. Armstrong’s decision in which he granted default judgment to the plaintiff. The appeal is allowed.

[2] The Deputy Judge clearly misapplied the law when he declared that he was going to grant judgment without hearing the defendant who was present and ready to proceed, albeit without an interpreter but able to speak broken English. Counsel for the appellant made it clear that, while English was not the appellant’s first language, his English was equal to that of the plaintiff, who was testifying without an interpreter.

[3] Counsel requested an indulgence of half an hour at the very beginning of a busy court day to permit the defendant’s witnesses to appear. This was not an unreasonable request. It was counsel, not the defendant, who had told the witnesses to await his call pending receipt of the Deputy Judge’s ruling with respect to a request for an adjournment. The Deputy Judge’s harsh response should not have been visited on the defendant.

[4] The Deputy Judge’s order will be set aside and the appellant will be granted leave to serve and file a Defence and Counterclaim by October 31, 2008, failing which the Deputy Judge’s order will stand.

[5] Costs in the amount of $600.00 (consisting of disbursements only), payable to the appellant if the Defence and Counterclaim are not filed by October 31, 2008.

Bellamy, J.

DATE heard: October 10, 2008 Date released: October 10, 2008