CITATION: Supreme Sweets Inc. v. Perlman, 2023 ONSC 487
DIVISIONAL COURT FILE NO.: 199/22
DATE: 20230119
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
SUPREME SWEETS INC. and MARIO PARRAVANO
Lenard Kotylo, for the Appellants
Defendants
(Appellants)
and
CHARLES PERLMAN
Plaintiff
(Respondent)
Josh Suttner, for the Respondent
HEARD by videoconference at Toronto:
January 16, 2023
ORAL REASONS FOR JUDGMENT
Leiper J. (Orally):
PART I INTRODUCTION
[1] Mario Parravano and Supreme Sweets Inc., the Defendants, appeal the decision of Deputy Judge Twohig of the Small Claims Court giving judgment in favour of the Plaintiffs in the amount of $14,306.33 after a trial held on March 1, 2022.
[2] The background to this appeal is that the March 1, 2022 trial date was a second trial date. The Small Claims Court office set October 25, 2019 as the first trial date. The Defendants’ agent moved to adjourn that date because he said that he was scheduled to be out of the country at his Florida office. The Plaintiff did not consent to the adjournment and the first trial proceeded in the Defendants’ absence. The first Trial Judge gave judgment in favour of the Plaintiff.
[3] The Defendants successfully moved to set aside the first judgment with a new reason for their non-attendance: Mr. Parravano had been caring for a sick relative.
[4] The Small Claims Court office sent a new trial date to the parties on December 10, 2021, for a trial by videoconference on March 1, 2022. The agent for the Defendants notified Plaintiff’s counsel that they would be seeking to adjourn the March 1, 2022 trial because they wanted the trial to be held in person. The Plaintiff, who resides in Montreal and is immune-compromised, indicated through counsel that he wished to know the reason for the in-person request. The agent for the Defendants provided no additional details.
[5] The agent for the Defendants also requested that the Plaintiff agree to adjourn the March 1, 2022 trial date because of the agent’s plans to be in Florida, at his office, at that time.
[6] The Trial Judge denied the Defendants’ request for an adjournment. The agent and the Defendant, Mr. Parravano left the hearing, and the trial proceeded in their absence. The Trial Judge heard evidence, received the relevant documents, and gave judgment in favour of the Plaintiff.
PART II THE ISSUES ON THIS APPEAL
[6] The issues on this appeal are:
a. Did the Trial Judge properly exercise his discretion to refuse the adjournment request?
b. Should a new trial be ordered to allow the Defendants to call witnesses who did not attend the March 1, 2022 trial?
c. Should a new trial be ordered to join the issues on this claim with the Defendants’ claim of an altered credit report to be tried at the same time?
PART III JURISDICTION AND STANDARD OF REVIEW
[9] This court has jurisdiction to hear an appeal of this decision pursuant to s. 31 of the Courts of Justice Act R.S.O. 1990, c C.43. The standard of review on appeal involving matters of procedural fairness, including the exercise of discretion to grant or refuse an adjournment is the appellate standard of review: See Houssen v. Nikolaisen 2002 SCC 33, [2002] 2 SCR 235; Law Society v. Abrametz 2022 SCC 29; 470 DLR (4th) 328 at paras. 27-30.
[10] A reviewing court should show deference to a Trial Judge’s exercise of discretion in deciding whether to grant an adjournment, and only interfere in circumstances where the trial judge has misdirected themselves or where their decision is “clearly wrong”: See Ontario Securities Commission v. Go-To Developments Holdings Inc., 2022 ONCA 328 at para.11.
[11] When presented with a motion to adjourn a trial, a Trial Judge should take into account:
• the objective of determining the matter on its merits;
• the principles of natural justice;
• that justice should be done and should be seen to be done;
• the rationale and circumstances of the request for an adjournment;
• the consequences of an adjournment on the ability to do justice to the matter;
• the competing interests of the parties in advancing or delaying the progress of the litigation;
• the prejudice not compensable in costs, of any, suffered by a party by the granting or the refusing of the adjournment;
• whether the ability of the party requesting the adjournment to fully and adequately prosecute or defend the proceeding would be significantly compromised if the adjournment were refused;
• the need of the administration of justice to orderly process civil proceedings and effectively enforce court orders.
See: Ariston Realty Corp. v. Elcarim Inc., 2007 13360 (ON SC), [2007] O.J. No. 1497 at para. 33.
PART IV – ANALYSIS OF THE ISSUES
Did the Trial Judge properly exercise his discretion to refuse the adjournment request?
[7] The Trial Judge gave oral reasons denying the Defendants’ adjournment request which revealed that he understood the information given in support of the request, considered it in the context of the litigation, and measured its merits based on a lack of detail and illogic. He concluded that in all the circumstances the Defendants were trying to delay the trial on the merits. These inferences were available to him.
[8] I find that there is no basis to interfere with the Trial Judge’s exercise of discretion in refusing the Defendants’ request for an adjournment of the trial.
[9] The Trial Judge considered the following facts:
a. the action had been ongoing since May 13, 2019 and this was a second trial date;
b. the Defendants had attempted to adjourn the first trial due to their agent’s absence in Florida;
c. the Defendants failed to attend the first trial, and successfully set aside the judgment on the basis that the individual Defendant, Mr. Parravano, was required to look after a sick relative on the first trial date;
d. the agent for the Defendants asserted that his clients “needed” an in-person hearing at the second trial date, without further rationale, and in the context of the ongoing videoconference practices developed by the courts, including the Small Claims Court, during the global pandemic;
e. the email correspondence between counsel and the agent prior to the second trial date reveals that despite several requests from counsel for the Plaintiff for an explanation for the Defendants’ in-person trial request, the agent for the Defendant did not provide any explanation;
f. on the application for the adjournment, the agent for the Defendants failed to explain adequately why if he knew the trial was to proceed by Zoom, and he was in Florida, why he could not have proceeded that way and brought his file with him to be ready to proceed;
g. counsel for the Plaintiff offered to send all relevant files for the second trial by email and offered to provide the agent a break to get to a computer, receive the files and prepare to proceed, however this offer was rejected;
[10] The Trial Judge found it unbelievable that the Defendants’ agent did not have access to Wi-Fi or a computer if he was purportedly working from an office in Florida. The Defendants’ agent did not explain why he was not in that office, but in some other remote location, 2 hours away from cell phone reception. He gave no details of any other commitments that would have prevented him from participating in the trial remotely. The Plaintiff had not consented to the adjournment. This was a second trial date. The agent for the Defendants essentially made himself unavailable and did not take his file with him to prepare for a remote trial. The Trial Judge’s incredulity with the agent’s submissions concerning his inability, and by extension his client’s unwillingness to participate in a trial on the merits was a logically available response to those submissions.
[11] Agents and counsel know that they cannot assume an adjournment will be granted, particularly where the opposing counsel intends to contest the request. By the winter of 2022, there was abundant jurisprudence and notices from the court as to the use of videoconferencing to conduct trials. The agent for the Defendants provided no rationale for the in-person trial request, although invited to do so in advance of the March 1, 2022 trial date.
[12] The Defendants’ position on the adjournment was illogical, untenable, and deservedly rejected. The Trial Judge had ample reason to decide that it was not in the interests of justice to grant the adjournment. It was implicit in his reasons that he considered the rationale, the impact on the parties and the exigencies of granting or refusing an adjournment on the administration of justice. At the trial of the merits which followed, the Trial Judge put the Plaintiff to the proof of the claim, and only rendered judgment after hearing evidence in support of that claim.
[13] Counsel for the Defendants submitted that the Trial Judge failed to consider the prejudice to the Defendants if the adjournment was not granted. While the Trial Judge did not explicitly use that phrase in his reasons, he was clearly alive to the consequences of proceeding in the absence of the Defendants. Counsel for the parties both submitted on this appeal that the prejudice toward a party of not being able to participate in a trial on the merits is “obvious.” Based on the scanty information provided for the Defendants’ adjournment request, the Trial Judge could reasonably infer that the Defendants did not want a trial on the merits, and their alleged prejudice is illusory: it was open to the Trial Judge to find that the Defendants believed that a trial on the merits would not result in the outcome they sought, thus they were merely trying to extend and delay that trial.
[14] I conclude that the Trial Judge’s decision to refuse the adjournment of the trial date of March 1, 2022 is entitled to deference on appeal and I would not interfere with that decision.
Should a new trial be ordered to allow the Defendants to call witnesses who did not attend the March 1, 2022 trial?
[15] This issue was not raised before the Trial Judge. The Defendants’ witness list for both trials listed only the individual Defendant. On the March 1, 2022 trial date, the parties were aware that it was to proceed by Zoom. Had other witnesses been required, they could have appeared from any location. The agent for the Defendants did not raise any issues before the Trial Judge that revealed that necessary witnesses were not available.
[16] I conclude that this ground of appeal is without merit.
The Credit Report Issue
[17] The Defendants raise a new issue in their amended Notice of Appeal concerning their claim against the Plaintiff with respect to a credit report filed by the Plaintiff after the first judgment.
[18] These allegations are unrelated to the principal issue on this appeal. They are the subject of a separate claim commenced by the Defendants against the Plaintiff. This claim is not a reason to overturn the trial decision.
[19] This ground of appeal is without merit.
PART V DISPOSITION AND COSTS
[20] The appeal is dismissed.
[21] Costs are ordered in favour of the Plaintiff in the amount of $5,000.00 on a partial indemnity basis inclusive of HST.
Leiper J.
Date of Oral Reasons for Judgment: January 16, 2023
Date of Written Release: January 19, 2023
CITATION: Supreme Sweets Inc. v. Perlman, 2023 ONSC 487
DIVISIONAL COURT FILE NO.: 199/22
DATE: 20230119
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
SUPREME SWEETS INC. AND MARIO PARRAVANO
Defendants/Appellants
– and –
CHARLES PERLMAN
Plaintiff/ Respondent
ORAL REASONS FOR JUDGMENT
Leiper J.
Date of Oral Reasons for Judgment: January 16, 2023
Date of Written Release: January 19, 2023