CITATION: Toronto-Dominion Bank v. Hylton, 2010 ONCA 752
DATE: 20101109
DOCKET: C51522
COURT OF APPEAL FOR ONTARIO
Laskin, Sharpe and Epstein, JJ.A.
BETWEEN
The Toronto-Dominion Bank
Plaintiff (Respondent)
and
Paul Hylton also known as Paul U Hylton
Defendant (Appellant)
Sidney Klotz, for the appellant
Dennis Touesnard, for the respondent
Heard: September 17, 2010
On appeal from the judgment of Justice Robert D. Reilly of the Superior Court of Justice dated December 4, 2009.
Epstein J.A.:
I. Overview
[1] The appellant, Paul Hylton, appeals part of a judgment dated December 4, 2009, in which the motion judge granted summary judgment against him in favour of the respondent, The Toronto-Dominion Bank, in the amount of $81,660.18 plus interest and costs. Mr. Hylton does not contest that he owes the bank $14,464.14 of this amount, but he seeks to set aside two other terms of the judgment that comprise the remaining $67,196.04.
[2] Mr. Hylton submits that he has a defence to the contested portion of the judgment: namely, that Keywell Industries Inc., the company for which he works, is responsible for the debt to the Bank. He argues that in the light of the circumstances giving rise to the judgment, he was unfairly deprived of the opportunity to advance this defence.
[3] Mr. Hylton seeks to support his position through material contained in a fresh evidence motion. This material addresses his relationship with Keywell and its responsibility to the Bank under the two loans in dispute, as well as his personal circumstances in late 2009 that explain why he did not defend the motion for summary judgment.
[4] For the following reasons I would admit the fresh evidence and give Mr. Hylton an opportunity to defend the Bank’s claims under the two disputed loans.
II. The Action
[5] The action arises out of three agreements for credit facilities with the Bank pursuant to which the Bank says Mr. Hylton owes it money.
[6] On December 30, 2005, a TD visa agreement was entered into with a $10,500 credit limit. Payments went into default prior to January 21, 2009, and on March 23, 2009, the outstanding amount was called in and the credit facility was closed. The Bank claims that as of October 16, 2009, the amount owing to it pursuant to this account was $13,850.38, with interest accumulating at $9.01 per day. Mr. Hylton acknowledges that he owed this amount.
[7] On October 6, 2006, a TD visa agreement was entered into with a $25,000 credit limit. No payments were made after September 17, 2008 towards the outstanding amount owing. The Bank called in the loan and closed the facility on March 27, 2009. The Bank claims that as of October 16, 2009, the amount owing to it was $29,578.46, with daily interest accruing in the amount of $16.43.
[8] On June 29, 2007, a loan agreement was entered into under which the Bank advanced $38,847.14 for the purchase of a car. No payments were made after September 29, 2008. As of April 1, 2009, there remained $32,808.90 outstanding under this loan agreement. Upon default, the Bank unsuccessfully attempted to locate and recover the car. The Bank claims that as of October 16, 2009, the amount owing to it was $36,084.11, with daily interest accumulating in the amount of $8.48, plus the bailiff fee for the attempt to recover the car in the amount of $376.95.
[9] By statement of claim issued August 4, 2009, the Bank sued Mr. Hylton to recover the amounts outstanding under these three credit facilities. Mr. Hylton, then self-represented, delivered a hand-written statement of defence dated September 9, 2009. In that defence, read generously, Mr. Hylton referred to making payment arrangements, needing time to consult a lawyer, and wanting to move the file to Toronto.
[10] By a Simplified Procedure Motion Form dated October 13, 2009, the Bank moved for summary judgment under what was then rule 76.07 of the Simplified Rules.
[11] On November 20, 2009, the first return date of the motion, Mr. Hylton neither appeared nor filed any material in defence of the motion. However, his brother came to court on Mr. Hylton’s behalf. He requested an adjournment “for at least a couple of months” on the basis that his brother was ill.
[12] Borkovich J. adjourned the motion for two weeks, until December 4, 2009, and gratuitously added the following:
I’ve also read the papers here and I don’t think [Mr. Hylton has] got much hope in this matter.
[13] On December 4, 2009, Mr. Hylton’s brother again appeared on Mr. Hylton’s behalf. Again, no response material had been filed. Mr. Hylton’s brother advised the court that “He’s been basically sick, basically cannot travel, right. So I am basically asking for more time to get legal aid.” He submitted a doctor’s note stating that Mr. Hylton was “not medically fit to attend court”.
[14] The motion judge rejected this as a justification for failing to “file responding material outlining even the possibility of a defence” and refused the adjournment request, commenting that he was doing Mr. Hylton a favour. He explained his decision to deny the adjournment request as follows:
If I thought there was any hope of a successful defence to these claims I would give him an opportunity to have his day in court. His pleadings do not reveal any possibility of a defence. If I put the matter over, that would simply result in greater costs incurred.
[15] In response to this remark and the motion judge’s comments that “court time is very valuable” and an adjournment would result in “at least another $1000 in costs”, Mr. Hylton’s brother indicated he would accept the responsibility to pay court costs and again implored the motion judge to give his brother a chance to defend. He promised that there would be no further adjournment requests.
[16] The motion judge held fast to his decision to end the matter then and there and proceeded to grant judgment in favour of the Bank, saying:
Though this court accepts Paul Hylton may be ill today that does not explain his failure to file any responding material in the time granted him prior to today’s date. Upon consideration of the material filed and submissions of Mr. Touesnard and Mr. Peter Hylton, this court directs judgment in accordance with the draft filed.
III. Analysis
1. The motion to adduce fresh evidence
[17] For the purposes of this appeal, Mr. Hylton, now represented by counsel, seeks to adduce fresh evidence explaining both his delay in defending the summary judgment motion and the basis upon which he proposes to persuade the court that there is a genuine issue requiring a trial in relation to two of the loans.
[18] With respect to the issue of his delay in responding to the demands of the summary judgment motion, Mr. Hylton has filed an affidavit indicating that in late November and early December 2009, he had just lost his sister and taken on the responsibility of caring for her three children. In addition, he had broken several ribs and was in chronic pain. His being overwhelmed by stress and by emotional and physical pain not only prevented him from travelling to Brantford (he lived in Toronto) to attend court, but also from preparing proper materials in defence of the Bank’s motion. His proposed evidence includes an affidavit sworn by his mother and a letter from his doctor in support of his description of these personal circumstances.
[19] With respect to his proposed response to the Bank’s claim, Mr. Hylton, in his affidavit, says that his statement of defence was misunderstood. He did not admit to owing the outstanding amounts under all three loans. He only admitted to being responsible for the December 2005 TD visa account. With respect to the other two loans, Mr. Hylton says that, to the Bank’s knowledge, the car purchase loan and the October 2006 TD visa agreement, were entered into on behalf of Keywell. Mr. Hylton therefore proposes to defend the October 2006 Visa loan and the car loan on the basis that he is not the borrower. He also intends to issue a third party claim against Autopark Superstore Inc. o/a Autopark Mitsubishi, the company that sold the car, on the basis that it made misrepresentations to him regarding the car loan arrangement.
[20] The Bank resists the admission of fresh evidence on the basis that it fails to pass the test established in R. v. Palmer, [1980] 1 S.C.R. 759. In Palmer, McIntyre J. held at p. 775 that the test for admissibility of fresh evidence encompasses four principles: the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial; the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue; the evidence must be credible in the sense that it is reasonably capable of belief; and it must be such that if believed it could reasonably, when taken with the other evidence adduced, be expected to have affected the result.
[21] The motion to adduce fresh evidence was served only two days before the hearing. Understandably, the Bank did not have time to respond. Counsel for the Bank was, therefore, asked if he wanted an adjournment to challenge the proposed fresh evidence. This offer was refused.
[22] Counsel for the Bank opposed Mr. Hylton’s request to adduce fresh evidence in oral argument. The Bank submits that the proposed evidence was physically available before the date when the motion for summary judgment was heard and disposed of. Moreover, the Bank contends that the evidence, considered in the light of the loan documentation, could not affect the result.
[23] I would allow the fresh evidence to be admitted.
[24] First, I agree with counsel for the Bank that the information contained in the motion for fresh evidence was available in the sense that, to Mr. Hylton’s knowledge, it existed at the time the motion was scheduled to be heard in December 2009. However, that fact alone is not sufficient to establish lack of due diligence.
[25] According to Doherty J.A. in R. v. 1275729 Ontario Inc. (2005), [2005 47589 (ON CA)](https://www.canlii.org/en/on/onca/doc/2005/2005canlii47589/2005canlii47589.html), 203 C.C.C. (3d) 501 (Ont. C.A.), at para. 29, self representation is a relevant factor in the consideration of whether the due diligence test has been met:
The due diligence criterion is context sensitive and, as acknowledged in Palmer itself, must be applied with regard to the nature of the proceedings in which the appeal arises. For example, if an appellant was self-represented at trial..., an appeal court would be entitled to take that fact into consideration in deciding whether due diligence had been exercised at trial and, if not, the weight that should be attributed to that failure in determining whether to admit fresh evidence proffered on appeal. Under the Palmer approach to due diligence, that factor gets the weight that the “interests of justice” demand that it should get in any given circumstance. Self representation could in some circumstances diminish the impact of the failure to exercise due diligence on the admissibility of the evidence.
[26] While this idea is expressed in the context of a criminal matter, I see no reason why a contextual approach should not be taken in civil cases.
[27] Mr. Hylton, a self-represented litigant, was unable to prepare his defence materials and present them to the court at that time due to serious personal circumstances, the existence of which has not been challenged. I do not agree with the Bank that Mr. Hylton failed to exercise due diligence as required under the Palmer test.
[28] The second issue to consider is whether the evidence could be expected to have affected the result – in this case meaning the motion judge’s decision to grant summary judgment in favour of the Bank based on his conclusion that there was no issue that warranted a trial.
[29] The Bank submits that Mr. Hylton has, in his proposed fresh evidence, been given the opportunity to put his “best foot forward” in order to persuade this court that there is a genuine issue requiring a trial. The Bank argues that even now, having availed himself of this opportunity, Mr. Hylton’s defence is insufficient to survive a motion for summary judgment.
[30] Based on the record before this court, I cannot agree.
[31] The Bank supports its motion for summary judgment through an affidavit sworn by Mr. Tomlinson, a debt recovery officer at the Bank. His affidavit contains exhibits that purport to document the terms of the credit facilities in issue and the circumstances under which payments were made and the loans went into default.
[32] The problem with this record is twofold. First, the documents upon which the Bank relies, examined in the light of Mr. Hylton’s argument that he is not the borrower, do not present a sufficiently clear picture to ground a judgment. Specifically, the identity of the borrower, including who made the payments, is unclear, as are the Bank’s rights upon default. Second, Mr. Hylton has now tendered evidence, at this point unchallenged, that to the knowledge of the Bank and Autopark, it was never intended that he assume personal responsibility for the loans in question.
[33] In these circumstances, I am persuaded that the fresh evidence could reasonably be expected to affect the motion judge’s decision concerning whether or not to grant summary judgment in the Bank’s favour in relation to the loans in issue.
[34] I would therefore allow the motion to adduce fresh evidence and proceed to consider the appeal in the light of the evidence contained in Mr. Hylton’s motion materials.
2. The Appeal
[35] I will now deal with the motion judge’s decision to deny the request for an adjournment on December 4, 2009.
[36] The presiding judge has a well-placed and a well-established discretion to decide whether an adjournment request ought to be allowed or denied. In Khimji v. Dhanani (2004), [2004 12037 (ON CA)](https://www.canlii.org/en/on/onca/doc/2004/2004canlii12037/2004canlii12037.html), 69 O.R. (3d) 790 (C.A.), the majority accepted Laskin J.A.’s statement of the principles applicable to reviewing a denial of an adjournment. Laskin J.A. wrote at para. 14 of his dissent:
A trial judge enjoys wide latitude in deciding whether to grant or refuse the adjournment of a scheduled civil trial. The decision is discretionary and the scope for appellate intervention is correspondingly limited. In exercising this discretion, however, the trial judge should balance the interests of the plaintiff, the interests of the defendant and the interests of the administration of justice in the orderly processing of civil trials on their merits. In any particular case, several considerations may bear on these interests. A trial judge who fails to take account of relevant considerations may exercise his or her discretion unreasonably and if, as a result, the decision is contrary to the interests of justice, an appellate court is justified in intervening.
[37] Laskin J.A.’s passage makes it clear that, in reviewing highly discretionary decisions such as whether to allow a request for an adjournment, the inquiry 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.
[38] Against the backdrop of the nature of the proceeding and the parties to the proceeding, the court should consider the evidence and strength of the evidence of the reason for the adjournment request, the history of the matter including deliberate delay or misuse of the court process, the prejudice to the party resisting the adjournment and the consequences to the requesting party of refusing the request.
[39] Once again, the fact that a party is self-represented is a relevant factor. That is not to say that a self-represented party is entitled to a “pass”. However, as part of the court’s obligation to ensure that all litigants have a fair opportunity to advance their positions, the court must assist self-represented parties so they can present their cases to the best of their abilities. Linhares de Sousa J. provided a helpful list of ways to assist self-represented litigants in Kainz v. Potter (2006), [2006 20532 (ON SC)](https://www.canlii.org/en/on/onsc/doc/2006/2006canlii20532/2006canlii20532.html), 33 R.F.L. (6th) 62 (Ont. S.C.), at para. 65:
[N]umerous Court decisions have reiterated the principle again and again, that self-represented parties are entitled to receive assistance from an adjudicator to permit them to fairly present their case on the issues in question. This may include directions on procedure, the nature of the evidence that can be presented, the calling of witnesses, the form of questioning, requests for adjournments and even the raising of substantive and evidentiary issues. [Emphasis added.]
[40] In this case the adjournment request was made against the following background. It, as well as the first request, was put forward respectfully and responsibly by Mr. Hylton’s brother. It was for valid personal reasons and payment of court costs was offered in addition to a guarantee that there would be no further adjournment requests. There was no history of delay or manipulation of the proceedings on the part of Mr. Hylton. The case moved quickly - three months - from the pleadings stage to the motion for summary judgment. There was no evidence there would be any prejudice to the Bank as a result of an adjournment. It is worth noting that, in respect of the two loan facilities in issue, Mr. Hylton went into default in September 2008, yet the Bank did not issue its statement of claim until August of 2009. Finally, the consequences to Mr. Hylton of refusing to grant the adjournment were significant – he was deprived of an opportunity to defend the action. It does not appear that any of these factors were considered by the motion judge in denying the adjournment request.
[41] The only factor that appears to have been considered was the motion judge’s opinion of Mr. Hylton’s ability to defend the motion. With respect, it simply cannot be that an otherwise valid request for an adjournment in order to file defence material can legitimately be denied on the sole basis that the motion judge finds there is no possibility of a defence.
[42] It follows that in my view the motion judge erred in refusing the adjournment request by failing to take account of relevant considerations, thereby exercising his discretion in a manner contrary to the interests of justice.
IV. Disposition
[43] For these reasons I would allow the appeal in part and set aside terms 1 and 2 of the judgment and remit the matter back to the Superior Court without prejudice to the Bank’s right to proceed with its motion for summary judgment.
[44] In my view, costs of this appeal should be in the cause. I would fix these costs in the amount of $2,000 including disbursements and applicable tax.
RELEASED:
“RJS” “Gloria Epstein J.A.”
“NOV -9 2010” “I agree John Laskin J.A.”
Sharpe J.A. (concurring):
[45] I have read the reasons of my colleague Epstein J.A. I agree with her that the proposed fresh evidence should be admitted. The proposed fresh evidence indicating that the credit card for the account on which the principal amount of $28,559.74 is claimed was issued by the respondent in the name of Keywell Industries supports the defence asserted by the appellant. No explanation as to why the card was issued in the name of Keywell Industries was offered on this appeal. I agree with my colleague that as the appellant was a self-represented litigant before the motion judge, some latitude should be accorded to him on the due diligence consideration in relation to the admissibility of the fresh evidence.
[46] In my view, this appeal can and should be decided solely on the fresh evidence ground.
[47] I respectfully disagree with my colleague that the motion judge erred in denying the request for an adjournment made on December 4, 2009. The appellant had been given one adjournment and the opportunity to file a response to the respondent’s summary judgment motion. He failed to file any response and, for the second time, sent his brother to ask for an adjournment. The medical evidence filed in support of the adjournment request was weak. It consisted of a hand-written note dated December 1, 2009, initialled by a doctor, identifying the appellant and stating “[t]he above patient is not medically fit to attend Court.”
[48] The appellant’s statement of defence admitted liability on one of the accounts, baldly denied liability on another account on which the respondent claimed the principal amount of $35,483.41, and was silent on the third account. No facts were pleaded in defence. Apart from the blanket admissions and denials, the statement of defence said only this:
I would like to make payment arrangements.
I would like to have time to consult a lawyer.
Can the file be moved to Toronto where I live and do business.
[49] The appellant filed no evidence in answer to the respondent’s motion for summary judgment. When the appellant’s first request for an adjournment was granted, the judge granting the adjournment informed the appellant’s brother that the facts pleaded in the statement of defence did not offer him much hope. Despite this warning, no further evidence or defence was filed.
[50] In these circumstances, it is my view that the motion judge did not err in placing some weight on the fact that the appellant’s defence to the respondent’s claim appeared to be hopeless. The motion judge was faced with a situation where a self-represented litigant had twice failed to appear, had offered weak evidence in support of the claim that he was too ill to attend, and had filed a defence which, on its face, appeared to admit liability for bank loans and credit card balances and to ask for no more than time to pay. In those circumstances, I see no error on the part of the motion judge in concluding that the appellant had no defence to the claim, that he was simply trying to get more time to pay the amount he owed, and that there was no merit to his request for a further adjournment.
“Robert J. Sharpe J.A.”