Ontario Civil


Civil Procedure

Trial
Trial judge did not err in refusing adjournment

Trial judge found appellants fraudulently submitted false information to respondent bank in order to obtain loans and found them liable for over $10 million in damages for fraudulent misrepresentation, negligent misrepresentation, conversion and conspiracy. Events giving rise to litigation occurred in 2007. Appellants commenced action claiming declarations they were not liable on guarantees. Bank counterclaimed. Three weeks before trial, appellants served notices of intention to act in person. They stated they would not be pursuing their claim and trial to proceed on counterclaim. Days before trial, however, appellants advised bank’s counsel they would be seeking adjournment to retain new counsel, explaining that they hoped to settle up to last minute. Appellant P produced doctor’s letter stating he was being treated for depression and could not participate in legal proceedings until his condition improved. His condition was long-standing but he obtained letter on day he filed notice of intention to act in person. Bank opposed adjournment. Trial judge refused adjournment, finding that trial had been scheduled for a year, it was appellants’ obligation to proceed expeditiously, it would likely be another year before another trial could be scheduled, appellants signified intention to act in person and had not taken any steps to consult with counsel in interim and P’s medical condition not raised until adjournment sought. Appellants did not call any evidence. Trial judge gave lengthy reasons for judgment. Appellants appealed, arguing trial judge erred in refusing adjournment by failing to consider all relevant circumstances. Appeal dismissed. Trial judge has discretion to decide whether adjournment request ought to be allowed or denied. Factors considered by trial judge justified her decision. Appellants gave notice of intention to act in person and had ample time to retain new counsel. Appellants were self-represented due to own decision to put off trial preparation in hope of settlement. Trial judge clearly considered nature of case, matters in dispute, appellants’ familiarity with issues and their relative sophistication. Issues were not complex and defence was entirely within appellants’ personal knowledge. Trial judge could reasonably conclude appellants would be capable of defending claim without assistance of counsel. Bank would be prejudiced by further delay of case already five years old. There was also public interest in efficient use of scarce judicial resources and in timely, efficient and fair resolution of trials. Trial judge properly took these factors into account.

Turbo Logistics Canada Inc. v. HSBC Bank Canada (Mar. 23, 2016, Ont. C.A., G.R. Strathy C.J.O., P. Lauwers J.A., and M.L. Benotto J.A., CA C58073) Decision at 234 A.C.W.S. (3d) 800 was affirmed. 264 A.C.W.S. (3d) 85.

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