CITATION: 2477791 Ontario Inc. v. Top Art Roofing Ltd., 2025 ONSC 1482
DIVISIONAL COURT FILE NO.: DC-24-00000630-0000
DATE: 20250319
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: 2477791 Ontario Inc., Appellant
AND:
Top Art Roofing Ltd., Respondent
BEFORE: Shore J.
COUNSEL: Pathik Baxi, for the Appellant
Calvin Zhang, for the Respondent
HEARD at Toronto: March 5, 2025
ENDORSEMENT
[1] This is an appeal of the order of Deputy Judge Minns, dated September 19, 2024, denying the Appellant's request for an adjournment at the commencement of a trial proceeding in the Small Claims Court.
[2] There was an initial request for an adjournment of the trial before Justice O'Brien. Justice O’Brien denied that request. It is unclear from the material if the Appellant also seeks to appeal Justice O'Brien’s order.
[3] At the commencement of this appeal, both parties raised preliminary issues. The Respondent sought an order dismissing the appeal and the Appellant sought an adjournment of the appeal.
[4] For the reasons below, I am dismissing both the request for an adjournment and the appeal itself, with costs.
Procedural Background:
[5] This action arose from roofing contracts signed between the Appellant, 2477791 Ontario Inc, and the Respondent, Top Art Roofing. The Respondent was installing a roof under the contract. The Appellant stopped payment on the final cheque, alleging deficiencies. In response, the Respondent stopped work on the roof. The Appellant brought a claim for damages and the Respondent brought a counterclaim for unpaid invoices.
[6] On June 26, 2024, this matter was set down for a trial in Small Claims Court, to be heard on September 19, 2024.
[7] On August 19, 2024, the Appellant requested an adjournment because one of the witnesses was going to be out of town for a family emergency.
[8] Justice O'Brien dismissed the request for an adjournment, finding that there was no explanation of the extenuating circumstances. Justice O'Brien’s decision permitted a renewed request for an adjournment before the trial judge if the parties had additional information.
[9] At the commencement of the trial, the Appellant made a request for an adjournment. The request was denied.
[10] The Appellant filed a notice of appeal, on the grounds that there was a denial of procedural fairness by not adjourning the trial.
Preliminary Issues:
[11] At the commencement of the appeal, the Respondent requested an order dismissing the appeal because:
(a) the Appellant failed to order the transcripts;
(b) the trial judge's reasons were not before the court; and
(c) the appeal should have been brought in the Superior Court of Justice.
[12] The Appellant requested an adjournment of the appeal because they ordered the transcript the morning of the appeal and therefore, required time to obtain the transcripts.
[13] The request for an adjournment to allow time for the Appellant to obtain the transcripts is dismissed. The Appellant waited until the penultimate moment to order the transcripts and to request an adjournment. The Appellant took no steps to address these deficiencies in the last five months. The Appellant provided no explanation for the delay.
[14] The appeal is being dismissed because the Appellant failed to serve and file the evidence necessary for this Court to hear and determine the appeal. Neither the transcript nor the reasons of the lower court are before this Court.
Request for Adjournment Denied:
[15] The Appellant is seeking an adjournment because the transcripts are not ready. They were ordered this morning.
[16] Adjournments are an exercise of discretion.
[17] In deciding not to grant the adjournment I have considered a number of factors, including but not limited to, the last-minute timing of the request, the failure to advise the court in advance that there would be an adjournment request, the lack of reasons for the delay in ordering the transcript, the potential prejudice to both parties, and whether reasonable efforts were made to avoid the need for the adjournment.
[18] In October 2024, the Appellant served a certificate confirming that transcripts were required for the appeal, and then did nothing to obtain the transcripts.
[19] The matter was scheduled for a hearing, and the Appellant still failed to properly perfect the appeal.
[20] On January 15, 2025, the Respondent served the Appellant with their factum. In the factum, the Respondent set out their objection to the appeal proceeding, given the Appellant's failure to order and file the transcripts. The Appellant had notice at least as of January 15, 2025, that their material was deficient, and that the Respondent would be moving to dismiss the appeal. Still, the Applicant took no steps to order the transcript at this time.
[21] The Appellant advised the court at the commencement of this appeal that they only ordered the transcripts this morning and are therefore, seeking an adjournment of the appeal.
[22] The Appellant offered no reasonable explanation for the delay in ordering the transcript or for the late adjournment request.
[23] Today was set aside to hear their appeal. Court resources and time have been wasted.
[24] It is in the interest of justice that the request for an adjournment is denied.
Failure to Comply with the Rules:
[25] The Appellant failed to comply with the Rules of Civil Procedure and, as a result, is not ready to proceed with the appeal. The documents necessary to determine the appeal are not before the Court.
[26] The Appellant never perfected the appeal. As such, it should not have been set down for a hearing: see r. 61.09(5). The Appellant's appeal materials contain several deficiencies and the appeal cannot proceed.
[27] Pursuant to r. 61.05(1), on October 17, 2024, the Appellant filed a certificate certifying that the oral evidence of all witnesses was required for the appeal.
[28] Subrule (5) mandates that within 30 days after filing a notice of appeal, the Appellant must file proof that they have ordered the transcript. The Appellant failed to file proof that the transcript had been ordered.
[29] Under r. 61.09(1), the appeal must be perfected within 30 days after filing the notice of appeal, or where a transcript of evidence is required, within 60 days after receiving notice that the evidence has been transcribed. The appeal was never perfected because the transcripts were not ordered or received.
[30] The Appellant failed to serve and file the documents required under r. 61.09(3), and the appeal book is, therefore, deficient. Not only was the transcript missing, but the reasons for the decision were not served or filed. If the reasons were provided orally during the trial, then this is another reason the appeal cannot proceed without the transcript.
[31] Under r. 61.13, this appeal could and should have been dismissed by the Registrar for failure to file proof that the transcript was ordered in time and/or for failure to perfect the appeal within the prescribed time.
[32] As a result of the Appellant's failure to comply with the Rules, there is no possibility the Appellant will be successful on the appeal because the necessary evidence is not before the Court.
Missing Evidence:
[33] The sole issue for the appeal is the trial judge's denial of the Appellant's request for an adjournment. In the factum, the Appellant set out the factors to be considered when determining whether to grant an adjournment and submits that the trial judge failed to properly consider and weigh these factors.
[34] It is not possible for this Court to know whether the trial judge considered those factors without the transcript of the trial judge’s reasons or the reasons themself, which the Appellant failed to file with the court. The Appellant cannot succeed in the appeal based on the evidence that is before this Court.
[35] In the parties' factums they both refer to the factors that the trial judge considered. Without the transcript and/or reasons, this Court has no ability to consider the appeal.
[36] The Appellant was permitted to renew the request for an adjournment if there was further information provided to the court with respect to the extenuating circumstances. As set out in a case provided by the Appellant, simply asserting a family medical emergency without any support documentation, such as first-hand medical evidence, is not sufficient: Lee v. Mo, 2019 ONSC 3031. There is nothing in the appeal record to indicate whether the Appellant offered any further information to the trial judge, other than what was before Justice O'Brien. Again, there is no way to determine this issue without the transcript and/or reasons.
[37] The appeal cannot proceed or succeed without the transcript and reasons. For this reason, the appeal is dismissed.
Jurisdiction:
[38] Given that I have dismissed the appeal on the grounds above, I do not need to address the issue of jurisdiction and whether the appeal should have been commenced in the Superior Court.
Disposition:
[39] The appeal is dismissed.
Costs:
[40] The Respondent is seeking costs on a full indemnity in the sum of $7,700 or on a partial indemnity basis, in the sum of $6,000. Given the success on the preliminary issues, I find it reasonable to order costs in the sum of $6,000 inclusive.
Shore J.
Date: March 19, 2025