Court File and Parties

Court: COURT OF APPEAL FOR ONTARIO Date: 2024-05-02 Docket: COA-23-CV-0826

Before: Tulloch C.J.O., Hourigan and Miller JJ.A.

Between: Domarina Malek, Plaintiff (Appellant) And: Mamdouh Fouad Soliman, Jason Potter, Paula Potter, Anthony Walter, John Prysiazniuk and Maria Jorgina de Lima Costa, Defendants (Respondents)

Counsel: Eric D. Freedman, for the appellant Peter Danson, for the respondent Mamdouh Fouad Soliman Darren Delaney, for the respondents Anthony Walter, John Prysiazniuk and Maria Jorgina de Lima Costa

Heard: April 23, 2024

On appeal from: the order of Justice Erica Chozik of the Superior Court of Justice, dated June 14, 2023.

Reasons for Decision

[1] In 2016, the appellant issued a statement of claim arising from a motor vehicle accident she was involved in approximately two years earlier.

[2] In December 2022, her counsel removed themselves as her lawyers of record and she carried on as a self-represented litigant. On March 20, 2023, an exit pre-trial management conference was conducted before Associate Justice Jolley. The parties advised the court that the action had settled with the respondents agreeing to pay the appellant a specified sum of money in exchange for a consent dismissal and a release.

[3] The appellant subsequently refused to execute the required consent and release, saying she was under duress and not in a mental state to understand what she was agreeing to at the time of settlement. In response, the respondents served a motion on April 3, 2023 returnable on June 14, 2023 to enforce the settlement and dismiss the claim. With the exception of two emails the appellant uploaded on Caselines at 2 a.m. on the motion hearing date, the appellant did not file any responding submissions on the motion. During oral argument, the appellant sought an adjournment citing her poor mental health and a desire to seek legal counsel.

[4] In her endorsement, the motion judge noted that the appellant sought more time to get answers “to questions she has about this case which has been on-going for almost a decade”. She denied the request for an adjournment, finding that the appellant “had plenty of time to get legal advice and to understand the nature of the settlement” and an adjournment would not be in the interests of justice. The motion judge granted the respondent’s motion for the enforcement of the settlement and ordered costs of $1,200 payable by the appellant.

[5] The appellant submits that the trial judge erred in finding that it was not in the interests of justice to grant an adjournment.

[6] An appellate court will not interfere with a judge’s exercise of discretion regarding an adjournment request unless it is shown that the judge exercised that discretion unreasonably, and the decision is contrary to the interests of justice: Toronto – Dominion Bank v. Hylton, 2010 ONCA 752, 270 O.A.C. 98, at para. 36.

[7] We are not satisfied that the appellant has met her onus. In our view, it was reasonable for the motion judge to deny the adjournment request. A consideration of the reasonableness of the decision must include the following contextual factors. First, this litigation has been outstanding since 2016. Second, the appellant provided no explanation regarding why she had not retained new counsel. Third, the appellant had provided no evidence regarding her medical condition. Fourth, the trial was on the list for the May 2023 sittings, but the appellant failed to attend at a pretrial in advance of that sitting. Fifth, the appellant failed to articulate why the settlement should not be enforced.

[8] In these circumstances, as a matter of judicial economy and fairness, it was open to the motion judge to deny the adjournment request. Her decision to deny the adjournment request was not unreasonable.

[9] The appeal is dismissed. The appellant shall pay costs of the appeal to the respondent Mamdouh Fouad Soliman, in the all-inclusive sum of $6,500.

“M. Tulloch C.J.O.” “C.W. Hourigan J.A.” “B.W. Miller J.A.”