Court of Appeal for Ontario
Date: September 20, 2017 Docket: C63119 Judges: Doherty, LaForme and Miller JJ.A.
Parties
Between
Muslim Green Cemeteries Corporation Applicant (Respondent in Appeal)
and
Toronto Muslim Cemetery Corp. Respondent (Appellant in Appeal)
Counsel
Shahzad Siddiqui, for the appellant
John Longo and Patrick Copeland, for the respondent
Hearing and Appeal
Heard: September 19, 2017
On appeal from the order of Justice Dow of the Superior Court of Justice, dated November 22, 2016.
Appeal Book Endorsement
[1] The appellant argues that he was denied procedural fairness when the application judge refused to adjourn the application. The appellant points out that it was unrepresented by counsel, had taken steps to prepare a response, and that there had been no prior adjournments.
[2] The application judge concluded that the adjournment request was "an attempt to delay the proceeding". That finding of fact has support in the record before the application judge.
[3] In particular, we note that the history of this litigation in relation to this conduct supports the inference that the appellant was resisting through litigation and otherwise the performance of its obligations under the contract. The application judge could reasonably see the request for an adjournment as a further attempt to delay the performance of the appellant's obligations.
[4] We note that the appellant's relative inaction in the seven weeks between service of the application and the return date also supports the application judge's assessment. There is no reason that the request for an adjournment was not made weeks before the return date.
[5] In addition, we note that there was some urgency in proceeding with the application from the respondent's perspective.
[6] The application judge's refusal to adjourn the application was an exercise of his discretion. As he had a reasonable basis for his decision, we decline to interfere.
[7] The appeal is dismissed. Costs to the respondent in the amount of $15,000, inclusive of disbursements and taxes.