Court File and Parties
Court File No.: CV-10-413387
Date: 2012-02-13
Superior Court of Justice - Ontario
Re: Red Bull Canada Ltd., Plaintiff
And: 1685592 Ontario Ltd., Defendant
Before: Carole J. Brown J.
Counsel:
Todd Burke, for the Plaintiff
Douglas Brown, for the Defendant
Heard: February 2, 2012
Endorsement
[1] The applicant Red Bull brings this application for dismissal of the respondent’s action with respect to leasehold property. A second application was commenced by the respondent arising from the same facts regarding the leasehold property.
[2] Counsel for the respondent, Mr. Brown, seeks an adjournment of this motion. He has advised the court that he has been ill for an extended period of time. He provided a medical certificate dated October 20, 2011 from Dr. Chinner indicating that he has been medically incapacitated since May 2011. He indicates that he has not been given full dispensation to go back to work.
[3] This matter was scheduled by Justice Himel on November 9 of 2010 for a hearing June 15, 2011. A timetable was set at that time. Upon agreement of counsel the hearing on June 15 was adjourned by Justice Himel to October 11, 2011 peremptory on the respondent and with a new timetable. Respondent failed to file materials or to adhere to the time table. On October 11, 2011 the matter was again adjourned due to the illness of respondent’s counsel, Mr. Brown, to February 2, 2012 again peremptory on the respondent. The new timetable and costs of $2,000 payable to the applicant. Mr. Brown again failed to file materials and to pay costs. Mr. Burke has travelled from Ottawa for today’s motion. While Mr. Brown states that he did not know that Mr. Burke was coming from Ottawa, it is clear from all of the material filed and from the correspondence from Mr. Burke regarding this motion that he is from Ottawa. Mr. Brown made no attempt to contact Mr. Burke regarding the motion or an adjournment at any time prior to today. He now seeks an adjournment.
[4] It is with extreme reluctance that I grant an adjournment on the basis of the ongoing effects of the illness and given the circumstances involved.
[5] This is not to condone in any way Mr. Brown’s conduct of this application and hearing.
[6] The adjournment is granted on the following terms and conditions:
The matter is to be adjourned to August 16 th for one half day
Costs are awarded on a substantial indemnity basis payable to the applicant in the amount of $10,000. These costs are to be paid by February 16, 2012;
Costs of $2,000 ordered payable on October 11, 2011 are to be paid by February 16, 2012, as well;
An updated medical certificate will be provided by Mr. Brown;
The respondent’s materials are to be served and filed by February 29;
Cross-examination of the respondent will be held on or before May 31;
There will be no cross-examination of the moving party;
If Mr. Brown is unable due to illness to meet this timetable, the respondent party is to arrange to have alternate counsel do so.
The period between June 15, 2011 and the date upon which the application is heard, shall not be used in any claim for prejudgment interest on behalf of the respondents.
Carole J. Brown J.
Date: February 13, 2012