Court File and Parties

CITATION: Reland Development Ltd. v. Whitby (Town), 2011 ONCA 661

DATE: 20111021

DOCKET: C53115

COURT OF APPEAL FOR ONTARIO

MacPherson, LaForme and Epstein JJ.A.

BETWEEN

Reland Development Ltd.

Plaintiff/Appellant

and

The Corporation of the Town of Whitby

Defendant/Respondent

Counsel: David Milosevic and Amelie Lau, for the appellant David Boghosian and Meena Rafie, for the respondent

Heard and released orally: October 19, 2011

On appeal from the order of Justice Alexander Sosna of the Superior Court of Justice dated November 22, 2010.

ENDORSEMENT

[1] The appellant Reland Development Ltd. appeals from the judgment of Sosna J. of the Superior Court of Justice dated 22 November 2010 dismissing its motion for an adjournment and dismissing its action against the respondent municipality.

[2] The appellant contends that the motion judge made a palpable and overriding error by not granting the adjournment, especially since the appellant had just put his personal residence up for sale with a view to acquiring sufficient funds to retain counsel for an estimated five to seven day trial.

[3] We do not accept this submission. A trial judge enjoys a wide latitude in deciding whether to grant an adjournment of a scheduled civil trial: see Khimji v. Dhanani, 2004 CanLII 12037 (ON CA), [2004] O.J. No. 320 (C.A.). His or her decision is entitled to considerable deference: see Murphy v. Werry Estate, [2005] O.J. No. 280 (C.A.).

[4] Against this backdrop, we can see no error – let alone a palpable and overriding error – in the motion judge’s analysis. The appellant had been granted two adjournments totalling a year and had not secured a counsel. He had also applied for, and been denied, additional extensions, including once just two weeks before the trial. In this context, his decision to put his house on the market (and through only a private sale) on the eve of the trial was simply too little and too late. As the motion judge said, “Mr. Vahamaki: should have taken steps and has had every opportunity to take steps to proceed with this case.”

[5] Finally, the appellant seeks to admit fresh evidence to the effect that he sold his family home on May 30, 2011 for $750,000. He says that he now is in possession of funds to proceed to trial.

[6] We would not admit the fresh evidence. There is no evidence that these funds are available for the proposed litigation – for example, by way of a transfer to his current counsel as a retainer. Moreover, although the home sale closed on May 30, 2011, the appellant waited until October 7, 2011 to bring a motion to introduce fresh evidence. Accordingly, the appellant has failed to satisfy the criteria of diligence, relevance and likelihood of affecting the outcome of the adjournment motion.

[7] The appeal is dismissed with costs to the respondent fixed at $9000, inclusive of disbursements and HST.

“J.C. MacPherson J.A.”

“H.S. LaForme J.A.”

“G.J. Epstein J.A.”