Court of Appeal for Ontario

Date: 2025-03-27
Docket: COA-24-CV-0389
Before: Benjamin Zarnett, Lorne Sossin, Jonathon Copeland

Between:
Regine Ross by her litigation guardians, Sibylle Marcelle Renee Francine Dilella and Loraine Mary Hagen, and John Douglas Ross, by his litigation guardian Sibylle Marcelle Renee Francine Dilella
Applicants (Respondents)

and

Rene Luypaert
Respondent (Appellant)

Appearances:
Michael Odumodu, for the appellant
Amber Bonnell, for the respondents

Heard: 2025-03-17

On appeal from the judgment of Justice Michael J. Valente of the Superior Court of Justice, dated February 28, 2024.

Reasons for Decision

Overview

[1] The respondents, Sibylle DiLella (“Yonna”) and Lorraine Hagen (“Lorraine”), are the litigation guardians of their incapable parents Regine Ross and Douglas Ross. The appellant, Rene Luypaert, is Yonna and Lorraine’s brother. The order under appeal granted the respondents two heads of relief: an order for the sale of 82 Galt Street, Guelph (“the Galt Property”), a fully leased duplex jointly owned by Regine and Douglas Ross, and Mr. Luypaert, and a writ of possession for 114 Bristol Street, in Guelph, solely owned by Regine Ross and occupied by Mr. Luypaert (“the Bristol Property”).

[2] The proceeding arose after the respondents, Yonna and Lorraine, approached Mr. Luypaert about selling the Galt Property and/or vacating the Bristol Property in order to fund their parents’ continued care. Mr. Luypaert refused.

[3] The respondents brought an application seeking the partition or sale (and corollary relief) of the Galt Property and a writ of possession for the Bristol Property.

[4] Following Mr. Luypaert’s failure to deliver responding materials on the application, the respondents brought a motion for an order requiring Mr. Luypaert to produce certain documents and records and a timetable to be made peremptory on Mr. Luypaert. Justice MacNeil granted the motion on September 29, 2023 (the MacNeil Order). The MacNeil Order required Mr. Luypaert to produce rental records and financial records according to a peremptory timetable. It also provided that Mr. Luypaert would specifically be prohibited from filing responding materials if he did not do so within the time specified by the peremptory timetable.

[5] Mr. Luypaert was represented by counsel through the motion before MacNeil J., but he was self-represented at the hearing of the application before the application judge and sought an adjournment, in order to retain counsel, and to have affidavit evidence considered by the court.

[6] At the application hearing, Mr. Luypaert did not bring a motion to amend or vary the MacNeil Order, which stated that the timeline for Mr. Luypaert to file materials was peremptory, as was the date that the application would be heard.

[7] Mr. Luypaert claimed to have no knowledge of the MacNeil Order, and he told the application judge in oral submissions that he had fired his prior counsel for “performance” issues, including failing to file materials.

[8] The application judge refused to consider the affidavit evidence, declined to grant an adjournment, and ordered the matter to proceed before him.

[9] The application judge noted that Mr. Luypaert, in oral submissions, also asked the court to find that the relevant powers of attorney were invalid despite not having formally challenged their validity. The application judge rejected this argument and found that the application was properly constituted based on the record before him.

[10] The application judge found that Regine and Douglas Ross were persons immediately entitled to the possession of the Galt Property and therefore had a prima facie right to partition and sale.

[11] The application judge provided ancillary relief regarding the sale process to ensure the sale of the Galt Property achieved the highest and best value. As an added protection to Mr. Luypaert, the application judge rejected the respondents’ request to allocate the proceeds of sale and instead directed that the proceeds, less expenses, be paid into court pending further order.

[12] With respect to the writ of possession of the Bristol Property, Mr. Luypaert was opposed to vacating the Bristol Property on the basis of the same allegations as above. The application judge noted that the record indicated that Mr. Luypaert owns at least one other residential property. The application judge was satisfied that a writ of possession should be ordered.

Issues

[13] Mr. Luypaert raises the following four grounds of appeal:

1. The application was procedurally unfair;
2. The application judge failed to apply the correct legal principles and inappropriate factors were considered in granting partition and sale;
3. There was an error in granting writ of possession for the Bristol Property; and
4. There was an error in accepting the powers of attorney and the incapacity of the respondents as valid.

[14] We deal with each ground in turn after addressing a preliminary issue with respect to this court’s jurisdiction to hear the appeal.

(1) Does this court have jurisdiction to hear the appeal?

[15] As a preliminary issue, the respondents raised the issue of this court’s jurisdiction to hear the appeal, given that s. 7 of the Partition Act, RSO 1990, c P.4 states that an appeal from any order made under the Act lies to the Divisional Court.

[16] Section 6(2) of the Courts of Justice Act, RSO 1990, c C.43 (“CJA”), gives this court jurisdiction to “hear and determine an appeal that lies to the Divisional Court or the Superior Court of Justice if an appeal in the same proceeding lies to and is taken to the Court of Appeal.”

[17] While the application judge’s order included relief under the Partition Act related to the Galt property, it also included the relief of a writ of possession related to the Bristol Property under r. 60.10 of the Rules of Civil Procedure. The respondent concedes that the relief relating to the Bristol Property was not granted under the Partition Act.

[18] Accordingly, this case may be distinguished from the circumstances of Webster v. Groszman, 2021 ONCA 55; and 2650971 Ontario Inc. v. Shameti, 2022 ONCA 62, relied on by the respondents, where this court found it did not have jurisdiction to hear the appeal because all the relief in the final order flowed from the sale of a property under the Partition Act. We conclude that this case is more analogous to Billimoria v. Mistry, 2022 ONCA 276, 470 D.L.R. (4th) 406, where this court found it did have jurisdiction to hear the appeal under s. 6(2) of the CJA. In Billimoria, the final order included a declaration regarding each parties’ percentage ownership in the property at issue, which did not flow from the Partition Act. This court held that “[a]lthough appeals from orders made under the Partition Act lie to the Divisional Court, the appeal from the final judgment determining the ownership of the property lies to this court, and this court has jurisdiction to deal with all the issues on appeal pursuant to s. 6(2) of the Courts of Justice Act”: at para. 21.

[19] Following Billimoria, as this court has jurisdiction over the appeal regarding the writ of possession concerning the Bristol property, we conclude that s. 6(2) of the CJA provides this court jurisdiction to hear the appeal against the order under the Partition Act relating to the Galt property as well.

(2) The application judge did not err in refusing to grant an adjournment

[20] According to Mr. Luypaert, the refusal of the request for an adjournment resulted in procedural unfairness.

[21] We disagree.

[22] An application judge’s discretion with respect to the granting or refusing of an adjournment is broad, and appellate courts should be reluctant to intervene: Graham v. Vandersloot, 2012 ONCA 60, 180 O.R. (3d) 641, at para. 5. In declining to grant an adjournment, a judge may rely on a range of factors, including a lack of compliance with prior court orders, previous adjournments that have been granted, previous peremptory hearing dates, the desirability of having the matter decided and a finding that an applicant is seeking to manipulate the system by “orchestrating delay”: see The Law Society of Upper Canada v. Igbinosun, 2009 ONCA 484, 96 O.R. (3d) 138, at para. 37. In Igbinosun, Weiler J.A. added an important caveat, that denying an adjournment solely because a hearing has been designated peremptory may not be appropriate; at para. 43. See also Conway (Re), 2016 ONCA 918, at para. 24.

[23] In this case, the application judge did not consider only the peremptory hearing date. He also referred to the “ample opportunity” that had been provided to Mr. Luypaert to comply with his obligations to file responding material, that he had been represented by counsel before MacNeil J., and that he also had not abided by an earlier order. For all of these reasons, he determined both that he would not receive the affidavit Mr. Luypaert had attempted to file, and that the hearing would proceed.

[24] While represented before MacNeil J., Mr. Luypaert was self-represented before the application judge, which can attract additional scrutiny to ensure a party who is not represented by counsel is not taken advantage of or treated unfairly by a party who is represented by counsel: see, for example, the observations in Grand River Conservation Authority v. Ramdas, 2021 ONCA 815, 160 O.R. (3d) 348, at paras. 17-24. In this case, however, we see no basis for the allegation that Mr. Luypaert was prevented from having a fair hearing.

[25] There is no indication that Mr. Luypaert could be considered a vulnerable, self-represented party unable to obtain counsel or understand the obligations arising from court orders; rather, he describes himself as a “landlord and real estate investor” who advised the application judge on the day of the hearing that he had fired his former counsel. Indeed, Mr. Luypaert had filed a notice of his intent to act in person on October 30, 2023, several months prior to the hearing of the application, yet had apparently taken no steps to hire another lawyer, nor did he try to file affidavit evidence until the day before the hearing of the application. Further, while Mr. Luypaert claimed at the outset of the hearing of the application not to have seen the MacNeil Order, counsel for the respondents pointed out that the MacNeil Order was appended to Mr. Luypaert’s own notice of intent to act in person.

[26] In summary, the application judge’s decision to refuse an adjournment and enforce the MacNeil Order with respect to not accepting further responding materials from Mr. Luypaert, did not constitute unfairness and reveals no error.

(3) The application judge did not err in awarding the relief under the Partition Act

[27] The application judge found that the Galt Property was jointly owned by Regine Ross, Douglas Ross, and Mr. Luypaert. He properly referenced the right of any owner of a property to bring an application for partition and sale under s. 3 of the Partition Act and granted the order requested by the respondents. The onus was on Mr. Luypaert to establish that this order should not be made.

[28] The application judge found that Mr. Luypaert had failed to meet this burden, and that his allegations of inaccurate and misleading information provided by the respondents “taken for their face value” did not amount to the malicious, vexatious, or oppressive conduct required to defeat a demand for partition and sale, relying on Shemish v. Benarzi (2006), 47 R.P.R. (4th) 92 (Ont. S.C.), at para. 11.

[29] While the application judge was satisfied that the respondents were entitled to move for partition and sale, he nonetheless directed that the funds from the sale of the Galt Property, less expenses, be paid into court, thus preserving Mr. Luypaert’s rights to make further arguments in relation to the distribution of the proceeds of sale.

[30] Mr. Luypaert argues that it was an error for the application judge not to fully consider his claim that he is the beneficial owner of the entire interest in the Galt Property, and that although his parents appear on title, they are only bare trustees, and further that the respondents did not bring their application with “clean hands”.

[31] There is no evidence that was before the application judge that establishes the bare trust arrangement. We see no error in the application judge’s determination that Mr. Luypaert had failed to establish a basis in the record for defeating the respondent’s application for partition and sale.

(4) The application judge did not err in awarding the writ of possession

[32] With respect to the respondent Regine’s application for a writ of possession, the application judge found that Regine was the sole owner of the Bristol Property. The application judge also noted that Mr. Luypaert had confirmed that he was the only occupant of the property and that there were no tenancy agreements.

[33] The application judge considered arguments from Mr. Luypaert based on allegations of inadequate mortgage and tax information provided by the respondents, and misleading statements by them, but found they did not provide a basis to refuse to issue the writ of possession.

[34] On appeal, Mr. Luypaert asserts that the application judge improperly relied on his own “unsworn statement” regarding his tenancy status.

[35] We give no effect to this argument. The application judge referred to this statement simply as confirming what was apparent to him on the record, which is that the property had no tenants, and no occupants other than Mr. Luypaert who did not have a tenancy agreement.

(5) The application judge did not err in refusing the challenge to the powers of attorney

[36] Mr. Luypaert challenged the status of the respondents Yonna and Lorraine as litigation guardians by alleging their powers of attorney were obtained on the basis of false testimony.

[37] The application judge found there was no evidence to support this allegation.

[38] This finding was open to the application judge, and we see no basis for appellate intervention.

[39] On appeal, Mr. Luypaert also argued that one of the powers of attorney did not appear to be fully executed. We see no merit in this submission. Even assuming that one of the power of attorney documents was incomplete, there is no basis to suggest that Yonna or Lorraine are not appropriate litigation guardians for this matter.

Disposition

[40] For the above reasons, we dismiss the appeal. In accordance with the agreement of the parties, Mr. Luypaert will pay the respondents’ costs of the appeal in the amount of $12,500, on an all-inclusive basis.

“B. Zarnett J.A.”
“L. Sossin J.A.”
“J. Copeland J.A.”