Court of Appeal for Ontario

Date: 2021-06-08 Docket: C68958

Judges: Rouleau J.A., Hoy J.A., van Rensburg J.A.

Between:

Bank of Montreal Plaintiff (Respondent)

And

Granville Cadogan, also known as Granville Nolley Cadogan also known as Granville N. Cadogan Defendant (Appellant)

Counsel: Granville Cadogan, acting in person Ron Aisenberg, for the respondent

Heard: June 4, 2021 by video conference

On appeal from the judgment of Justice David E. Harris of the Superior Court of Justice, dated November 19, 2020, with reasons reported at 2020 ONSC 7102.

Reasons for Decision

[1] This appeal was dismissed with reasons to follow. These are our reasons.

[2] The respondent bank commenced an action for damages against the appellant, who is a lawyer. The respondent alleged that the appellant made a knowingly false “law statement” under Ontario’s electronic land registration system, when he stated, in respect of a writ of seizure and sale the bank had registered against the property of the appellant’s client, Ms. Watkis, that “[a] complete, unconditional and unqualified release from the judgment creditor for this writ has been obtained”. The motion judge granted summary judgment in favour of the respondent for $63,494.04, plus $20,000 in punitive damages.

[3] The appellant raises a number of arguments on appeal.

[4] First, he submits that the motion judge erred in refusing an adjournment of the summary judgment motion, and then in refusing to permit his counsel to participate in the hearing. We do not give effect to this argument.

[5] The appellant did not appear at the virtual hearing of the motion. Instead, a lawyer appeared on his behalf by audio only. The lawyer had no instructions other than to obtain an adjournment. She reported that the appellant was sick and could not attend. She said that she had been retained “during the emergency measures”.

[6] Counsel for the respondent advised that he had received an email late the night before from a different lawyer who stated he had been retained by the appellant, and who had paid an outstanding costs award. That lawyer did not appear at the motion. The respondent’s lawyer also referred the motion judge to an unrelated matter involving the appellant in which the Law Society was dealing with a similar request for an adjournment which was denied.

[7] The motion judge determined that the appellant’s request for an adjournment followed a pattern “of obfuscation and attempting to put off his day of reckoning”. The summary judgment motion had already been adjourned peremptory to the appellant eight months earlier, when the appellant served an affidavit from his former client the night before the hearing. The endorsement specified that no further adjournments would be permitted. The appellant’s lawyer was “exceedingly vague” about when she had been retained, she had not been in touch with the appellant recently, and she had no instructions other than to obtain an adjournment. There was no documentary support for the illness excuse, which would have been simple enough to obtain if it were true.

[8] Whether to grant an adjournment in a civil proceeding is a highly discretionary decision, and the scope for appellate intervention is limited: Khimji v. Dhanani (2004), 69 O.R. (3d) 790 (C.A.), at para. 14 (per Laskin J.A., dissenting, but not on this point). The inquiry on appeal must focus on whether the court below took account of relevant considerations in balancing the competing interests and made a decision that was in keeping with the interests of justice: Toronto-Dominion Bank v. Hylton, 2010 ONCA 752, 270 O.A.C. 98, at para. 37.

[9] The appellant, although asserting that the adjournment was unreasonably refused, has not pointed to any circumstance that the motion judge failed to consider. Nor does the appellant’s reference on appeal to the pandemic provide an excuse for his non-attendance at the virtual hearing. There is no basis to interfere with the motion judge’s decision to refuse an adjournment in this case. He considered all of the relevant factors and he reasonably concluded that to grant an adjournment in the circumstances would permit an abuse of the court’s process.

[10] Nor would we accept the appellant’s fresh evidence on this issue. He has provided a note from a doctor, dated September 1, 2020, that states that he treated the appellant for a bout of severe pain on August 2, 2020. There is no explanation for why this note, which is dated a day before the motion date, was not produced at the time (other than a bald statement that the appellant was “unable to get a copy of the note to his counsel”). In any event, the note does not explain the appellant’s absence from court on the day of the motion, one month after he had seen the doctor, and in the circumstances would not have affected the decision to refuse an adjournment.

[11] As for the argument that the motion judge refused to allow the appellant’s counsel to participate, there is simply no basis for this contention. The appellant’s counsel made it clear she had been retained only to request the adjournment, that she was not prepared to argue the motion, and indeed she left the virtual hearing after the adjournment was denied.

[12] The appellant’s second argument is that the motion judge proceeded on an evidentiary record that was incomplete and deficient. We disagree. None of the arguments about alleged deficiencies that the appellant seeks to raise on appeal related to redacted documents, missing materials, lack of personal knowledge, business records and the like, have merit. There was no missing evidence, nor was evidence ignored.

[13] The respondent filed evidence consisting of three affidavits and 21 exhibits. It is too late for the appellant to submit evidence now, or to argue that certain documents should have been produced by the respondent. The appellant did not serve an affidavit of documents or produce any documents. Although the motion for summary judgment was outstanding for some time, the only evidence the appellant submitted in response to the motion was the affidavit of his client, Ms. Watkis, which was considered by the motion judge. The motion judge explained why he rejected Ms. Watkis’s assertion that she had settled the bank’s judgment for $29,000, after pointing out the many inconsistencies in the affidavit, and why he accepted the respondent’s evidence to the contrary.

[14] Even if there had been a settlement, it clearly had not been performed, as by her own account, Ms. Watkis had only paid $6,200 to the respondent in respect of the outstanding writ. The issue before the motion judge was whether the appellant knowingly made a false statement that “[a] complete, unconditional and unqualified release from the judgment creditor for this writ has been obtained”.

[15] The appellant’s own conduct was inconsistent with any belief that there was a “release”, or that any settlement had occurred. Rather, the appellant had contacted the respondent and its counsel on two occasions shortly before the transfer of Ms. Watkis’s property, and on three occasions within weeks thereafter, regarding a payout statement or reducing the payout amount of the writ. As the motion judge noted, the appellant “made no mention of anything remotely like a settlement” between Ms. Watkis and the bank. Indeed, after the placement of the “law statement” on the registry and the transfer of the real property he sent a letter to the bank’s counsel, asking for an accounting to substantiate the amount that was required to remove the writ.

[16] The motion judge’s conclusion that the appellant’s law statement on the electronic registry was false and must have been known by him to be false was fully supported by the evidence. The appellant has not demonstrated any reason to interfere with the judgment under appeal.

[17] For these reasons, the appeal was dismissed. Costs to the respondent fixed at $6,650, inclusive of HST and disbursements.

“Paul Rouleau J.A.”

“Alexandra Hoy J.A.”

“K. van Rensburg J.A.”