Khimji v. Dhanani, (2004) 182 O.A.C. 142 (CA)

• Judge: Catzman, Doherty and Laskin, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 12, 2003
• Jurisdiction: Ontario
• Citations: (2004), 182 O.A.C. 142 (CA)

Khimji v. Dhanani (2004), 182 O.A.C. 142 (CA)

MLB headnote and full text

Temp. Cite: [2004] O.A.C. TBEd. FE.041

Roshanali Bhimji Khimji (plaintiff/appellant) v. Shirin Dhanani and Munira Dhanani-Jeraj, Trustee of the Estate of Mehboob Dhanani (Deceased) (defendant/respondents)

(C39372)

Indexed As: Khimji v. Dhanani

Ontario Court of Appeal

Catzman, Doherty and Laskin, JJ.A.

February 10, 2004.

Summary:

Khimji sued for repayment of a loan of $120,000 U.S. The trial was set to commence on November 12, 2002. Khimji's lawyer moved to have himself removed as solicitor of record because of a dispute over fees. Khimji did not attend the motion. A copy of the order was served on Khimji on August 13, 2002. Khimji, who was legally blind and not fluent in English, appeared at the trial unrepresented and had the trial adjourned to December 16 to enable him to obtain a new lawyer. The trial judge advised him that if he did not show up on December 16, 2002, or if he was not ready, that his case would be dismissed. The trial judge marked the case "peremptory". The trial judge also ordered Khimji to pay the defendants' costs thrown away, fixed at $6,700, by December 16, 2002. On November 27, 2002, Khimji retained a lawyer (Dicker), who was unable to appear for trial on December 16, 2002. On December 10, Dicker unsuccessfully sought an adjournment. On December 16, Khimji requested an adjournment so that Dicker could act for him. Khimji had not paid the costs order.

The Ontario Superior Court denied the adjournment. Khimji appealed.

The Ontario Court of Appeal, Laskin, J.A., dissenting, dismissed the appeal.

Practice - Topic 5067

Conduct of trial - Adjournments - Circumstances when request for adjournment refused - Khimji sued for repayment of $120,000 U.S. - Khimji's lawyer obtained an order removing himself as solicitor of record - Khimji had not attended the motion and was served with the order on August 13, 2002 - On November 12, 2002, Khimji, who was legally blind and not fluent in English, appeared at the trial unrepresented and obtained an adjournment to December 16, 2002 (the November order) - Khimji was advised that if he did not appear on December 16 or was not ready, that the action would be dismissed - Khimji was ordered to pay the defendants' costs thrown away by December 16 - Khimji took no steps until November 27, 2002, when he retained a lawyer (Dicker) who was unavailable for December 16 - On December 10, Dicker unsuccessfully sought an adjournment - At trial Khimji requested a further adjournment so that Dicker could represent him - Khimji had not paid the costs order - The trial judge denied an adjournment and dismissed the action - The Ontario Court of Appeal held that the decision was justified where Khimji had ignored the November order.

Practice - Topic 5075

Conduct of trial - Adjournments - Review of decision to refuse adjournment - A trial judge denied a plaintiff's request for a third adjournment of the trial and dismissed the action - In dismissing the plaintiff's appeal, the Ontario Court of Appeal stated that "This court sits at a distance from the day-to-day operation of trial courts. That distance must impair this court's ability to review decisions such as the one under appeal. Strong deference is due to the decision of those in the trial courts who are responsible for the day-to-day maintenance of an efficient and just system of civil trials." - See paragraph 36.

Practice - Topic 5373

Dismissal of action - Grounds - General and want of prosecution - Failure to comply with court order - [See Practice - Topic 5067 ].

Practice - Topic 8809

Appeals - General principles - Duty of appellate court respecting conduct of trial -[See Practice - Topic 5075 ].

Counsel:

Jeffrey A. Dicker, for the appellant;

Robert Lepore, for the respondents.

This appeal was heard on December 12, 2003, by Catzman, Doherty and Laskin, JJ.A., of the Ontario Court of Appeal. The decision of the court was released on February 10, 2004, including the following opinions:

Laskin, J.A., dissenting - see paragraphs 1 to 26;

Doherty, J.A. (Catzman, J.A., concurring) - see paragraphs 27 to 36.