Court of Appeal for Ontario

Date: 20221017 Docket: C70111

Before: Feldman, Hoy and Favreau JJ.A.

In the Matter of the Estate of Marcel Van Decker

BETWEEN:

The Bank of Nova Scotia Trust Company, in its capacity as Estate Trustee of the Estate of Marcel Van Decker, deceased Moving Party (Respondent)

AND:

Denis Van Decker, Gerald Van Decker, Robert Van Decker and Anne-Marie Finn Respondents (Appellants)

Counsel:

Karen Sanchez, for the appellants David Lobl and Kira Domratchev, for the respondent

Heard and released orally: October 13, 2022

On appeal from the order of Justice John A. Desotti of the Superior Court of Justice, dated November 10, 2021.

Reasons for Decision

[1] The appellants, Mr. Denis Van Decker and his spouse, Ms. Anne-Marie Finn, appeal the order of the motion judge declaring that they are not tenants of, and have no interest in, 261 Ross Avenue, Sarnia, Ontario (the “Property”), ordering them to vacate the Property and pay occupation rent of $2500 plus utilities per month for the period of May 1, 2020 until the date that they vacate the Property, and authorizing the deduction of the occupation rent from Mr. Denis Van Decker’s share of the estate of his late father, Marcel Van Decker (the “Estate”).

[2] The appellants refused to vacate the Property, and, despite repeated requests from the Estate Trustee, failed to provide any corroborating evidence of their alleged interest in the Property, as required by s. 13 of the Evidence Act, R.S.O. 1990, c. E. 23. As a result, the Estate Trustee brought a motion for directions, leading to the order appealed from.

[3] The appellants argue that the motion judge erred by (1) failing to grant them an adjournment, particularly given that they were self-represented, and (2) providing insufficient reasons for doing so. They raise no issues with respect to the substantive issues that were before the motion judge. They have now vacated the Property. They ask this court to return the matter before a different motion judge so that they may adduce evidence about fair market rent for the Property and argue that rent should not have begun to run until at least December 1, 2020. Significantly, they did not seek to file fresh evidence on this appeal establishing that fair market rent is less than the occupation rent ordered by the motion judge.

[4] A judge at first instance enjoys wide latitude in deciding whether to grant an adjournment. The decision is discretionary and the scope for appellate intervention is accordingly limited. The court must balance the interests of the parties and the administration of justice: Toronto Dominion Bank v. Hylton, 2010 ONCA 752, 270 O.A.C. 98, at para. 36, citing Khimji v. Dhanani (2004), 69 O.R. (3d) 790, at para. 14, per Laskin J.A. (dissenting, but not on these points).

[5] We are not persuaded that there is any basis for this court to interfere with the motion judge’s exercise of discretion in denying the requested adjournment. While, as the appellants argue, the motion judge did not provide formal reasons for his decision denying the adjournment request, the rationale for and path to his decision, and the reasonableness of that decision, are apparent from the record.

[6] This was not the appellants’ first adjournment request. At the first scheduled hearing date, September 13, 2021, Mr. Denis Van Decker alleged that he had been short served and sought an adjournment. At the September 13, 2021 attendance, the motion judge rejected the appellants’ argument that the Landlord and Tenant Board (“LTB”) was the appropriate forum, indicated that the matter would proceed before the Superior Court of Justice, established a schedule for the filing of materials, and put the matter over to November 10, 2021. The evidence ultimately relied upon by the motion judge to fix the occupation rent at $2500 per month was before the motion judge at the September 13, 2021 attendance.

[7] Before the November 10, 2021 hearing, Mr. Denis Van Decker filed materials, renewing his argument that the LTB had jurisdiction, and declined to address the merits of his assertion that the appellants were tenants. Ms. Finn filed no materials. Accordingly, no evidence corroborating their alleged tenancy was before the motion judge on November 10, 2021, despite the motion judge having set a schedule for the filing of materials on September 13, 2021.

[8] At the November 10, 2021 hearing, Mr. Denis Van Decker sought a further adjournment on the basis that Ms. Finn was going to make submissions on his behalf but could not attend because her mother was ill. However, as the motion judge remarked, Ms. Finn, who is not a lawyer, had no standing to represent him, and Ms. Finn had not filed materials. Mr. Denis Van Decker did not seek an adjournment to file further materials.

[9] While the appellants were not represented by counsel at the November 10, 2021 attendance, the evidence before the motion judge was that they had the benefit of legal advice: Mr. Denis Van Decker had consulted with a lawyer whose advice was that they “will be thrown out” of the Property.

[10] Moreover, Mr. Denis Van Decker is only one of three residual beneficiaries (the deceased’s three adult sons) of the Estate. The Estate had been receiving no income and had been unable to sell the Property while the dispute continued. Others were prejudiced by the delay in this matter.

[11] Accordingly, the appeal is dismissed.

[12] The respondent Estate shall be entitled to its costs of the appeal, fixed in the amount of $10,000, inclusive of HST and disbursements, to be taken out of Mr. Denis Van Decker’s share of the Estate. We make no determination as to the Estate Trustee’s entitlement to indemnity from the Estate in respect of the balance of its legal fees on this appeal.

[13] Mr. Denis Van Decker’s brothers, Mr. Robert Van Decker and Mr. Gerald Van Decker, attended the hearing of the appeal and, without objection from the appellants, made brief oral submissions. Mr. Gerald Van Decker sought costs. However, counsel for Mr. Gerald Van Decker did not appear on the appeal and neither Mr. Gerald Van Decker nor his counsel filed any materials. Accordingly, we order no costs of the appeal payable to Mr. Gerald Van Decker.

“K. Feldman J.A.”

“Alexandra Hoy J.A.”

“L. Favreau J.A.”