Court File and Parties

Citation: Toronto-Dominion Bank v. Transfer Realty Inc., 2010 ONCA 166

Date: 20100304

Docket: C51171

Court of Appeal for Ontario

Before: Gillese, Juriansz and LaForme JJ.A.

Between:

The Toronto-Dominion Bank

Plaintiff (Respondent)

and

Transfer Realty Inc., Lawrence Cogan and Lawrence Cogan Enterprises Ltd.

Defendants (Appellants)

Counsel:

J. David Sloan, for the appellants

B. Jusko, for the respondent

Heard: March 3, 2010

On appeal from the order of Justice Romain W. M. Pitt of the Superior Court of Justice dated September 24, 2006.

Appeal Book Endorsement

[1] TD Bank moved for judgment to enforce Minutes of Settlement. The appellants requested an adjournment to obtain alternate legal counsel. The motion judge denied the appellants’ request and granted judgment in favour of TD Bank..

[2] The appellants appeal on the grounds that the motion judge’s denial of their request for an adjournment is contrary to the overall objective of civil procedure which is to obtain a just determination of the real matters in dispute.

[3] The decision whether to grant an adjournment is discretionary. Accordingly, the scope for appellate intervention is limited: see Khimji v. Dhanani, 2004 CanLII 12037 (ON CA), [2004] O.J. No. 320 (C.A.). The appellants have not demonstrated that the refusal to grant an adjournment is contrary to the interests of justice. In this regard, while the appellants say they have evidence with which to oppose the Bank’s motion, they filed nothing to support that contention either before the motion judge or this court. Where it is alleged that there is a defence or that a party will suffer prejudice if not permitted to present his or her case, the party must do more than simply make an assertion to that effect. There must be something to indicate that there is value in remitting the matter for a consideration on the merits.

[4] In this regard, we simply point out that in the Minutes of Settlement, the appellants did not dispute their liability and they acknowledged that they had no claims for set off, counterclaim or damages on any basis whatsoever against the Bank.

[5] Part of the appellants’ submission is based on the fact that the motion judge gave no reasons for refusing to grant the adjournment. Reasons should be given for any exercise of discretion. That said, nothing detracts from what has been said above. Accordingly, in the circumstances, we see no error in the motion judge’s refusal to grant an adjournment.

[6] The appeal is dismissed, with costs to the respondent fixed at $4,000, all inclusive.