Court of Appeal for Ontario

CITATION: Royal Bank of Canada v. Stovel, 2014 ONCA 362

DATE: 20140505

DOCKET: C57837

BEFORE: Cronk, Watt and Strathy JJ.A.

BETWEEN

Royal Bank of Canada

Plaintiff (Respondent)

and

Mark Andrew Stovel

Defendant (Appellant)

COUNSEL:

Mark Stovel, in person

Natalie Marconi, for the respondent

HEARD AND RELEASED ORALLY: April 17, 2014

On appeal from the order of Justice David G. Stinson of the Superior Court of Justice, dated July 9, 2013.

ENDORSEMENT

[1] Royal Bank of Canada (“RBC”) obtained default judgment against the appellant for the unpaid balance owing on a credit card account. Several months later the appellant moved to set aside the default judgment. Unable to attend the hearing of his motion because of a family emergency, the appellant sent an agent to seek an adjournment of the motion. The motion judge dismissed the request for an adjournment and, after reviewing the material filed by the appellant in support of his motion, also dismissed the motion to set aside the default judgment.

[2] The appellant appeals. He says that the motion judge erred in failing to grant his adjournment request and erred further in dismissing his motion to set aside the default judgment.

[3] The appellant does not appear to dispute either the fact or extent of his indebtedness to RBC.

[4] The appellant submits that the motion judge should have adjourned the hearing of his motion to set aside the default judgment to another date. The appellant’s failure to appear was as a result of a family emergency. It was apparent that his agent was not in a position to argue the merits of the motion. Refusal of the adjournment, the appellant submits, denied him access to justice.

[5] Whether a request for an adjournment will be granted or refused is a matter that lies within the discretion of the judge presiding in the proceedings in which the application for adjournment is brought. That discretion, if exercised in accordance with the applicable legal principles, reasonably and with due regard to all the circumstances, is entitled to deference in this court. We observe that in refusing the adjournment request in this case, the motion judge also considered the merits of the appellant’s claim to set aside the default judgment. The motion judge considered that there was no basis advanced by the appellant upon which the default judgment could be set aside. We agree with that assessment and that it was properly a factor for the motion judge to take into account in determining whether an adjournment should be granted.

[6] For these reasons, the appeal is dismissed. RBC is entitled to its costs of the appeal and of the motion for an extension of time in the total amount $1,000.00.

“E.A. Cronk J.A.”

“David Watt J.A.”

“G.R. Strathy J.A.”