Granting further adjournment in property dispute would prejudice estate: Ontario Court of Appeal

Man holding up proceedings one of three residual beneficiaries

Granting further adjournment in property dispute would prejudice estate: Ontario Court of Appeal

The Ontario Court of Appeal has upheld a motion judge’s refusal of another adjournment, given that the delay in the dispute was prejudicial to the estate, which could not sell the property or receive any income.

In Van Decker Estate v. Van Decker, 2022 ONCA 712, the appellants – Denis Van Decker and his spouse – refused to vacate a property in Sarnia, ON, and failed to provide corroborating evidence of their alleged interest in the property – as s. 13 of Ontario’s Evidence Act required – despite the estate trustee’s repeated requests. The estate trustee filed a motion for directions.

On the first scheduled hearing date in September 2021, Van Decker asked for an adjournment. The motion judge determined that the matter should proceed before the Ontario Superior Court of Justice and not the Landlord and Tenant Board, as the appellants alleged. He provided a schedule for the filing of materials and set the next hearing for November.

During the November 2021 hearing, Van Decker filed materials. He requested another adjournment because his spouse was going to make submissions on his behalf but could not attend the hearing since her mother was ill. The motion judge said that Van Decker’s spouse filed no materials and had no standing to represent him since she was not a lawyer.

Van Decker renewed his argument that the Landlord and Tenant Board had jurisdiction but did not address the merits of his argument that he and his spouse were tenants. Thus, the motion judge had no evidence before him supporting the appellants’ alleged tenancy.

The motion judge declared that the appellants were not tenants of and had no interest in the property. He ordered them to vacate the property and pay occupation rent of $2,500 plus utilities per month from May 1, 2020, until the date that they vacated. He also authorized the deduction of the occupation rent from Van Decker’s share of his late father’s estate.

The appellants appealed from the motion judge’s order and asked the appellate court to return the matter to a different motion judge so that they could present evidence about fair market rent. They argued that rent only started to run on Dec. 1, 2020, and that they were entitled to an adjournment, especially since they were self-represented.

Motion judge’s decision reasonable: appeal court

The Ontario Court of Appeal dismissed the appeal, finding no basis to interfere with the motion judge’s exercise of discretion in denying an adjournment.

The appellants argued that the motion judge failed to provide formal reasons for his denial of the adjournment request. The appellate court disagreed and found that the record showed the rationale for and the path toward the judge’s decision, which was reasonable.

The Court of Appeal noted that this was not the appellants’ first adjournment request. The court said that, although the appellants were not represented by counsel during the November 2021 hearing, the evidence provided that they had the benefit of legal advice. Specifically, Van Decker consulted a lawyer who stated that they would be “thrown out” of the property.

The appellate court further noted that Van Decker was only one of the estate’s three residual beneficiaries, which were the deceased’s three adult sons. The delay in the proceedings resulted in prejudice for others, including the estate, which could not sell the property while the dispute continued and could not receive any income.


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