COURT FILE NO.: 14-60524

DATE: 2022/02/09

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

RUDOLPH PALESHNUIK and LYNDA PALESHNUIK

Plaintiffs

– and –

GARFIELD CHURCHILL also known as Gary Churchill, ANN MARIE CHURCHILL, TEAM REALTY INC. operating as Royal Lepage Team Realty, MATTHEW SMITH, SHEILA SMITH, TARA MARCOUX-TYNSKI, PIN PROPERTY INSPECTION NETWORK BOOKING SERVICES LTD., AFFILIATED PROPERTY GROUP INC. and TED CAPES

Defendants

Counsel:

J. Alden Christian and Matthew Benson, Counsel for the Plaintiffs

Roberto D. Aburto and Kelly Duquette, Counsel for the Defendants, Garfield Churchill and Ann Marie Churchill

Hans Engell, Counsel for the Defendants, Team Realty Inc., operating as Royal LePage Team Realty, Matthew Smith, Sheila Smith, and Tara Marcoux-Tynski

HEARD: January 28, 2022 (By Videoconference)

RULING on motion for an adjournment of trial

Introduction

[1] The defendants request an adjournment of a three-week trial scheduled to commence approximately one month after the date on which the motion was heard. It is the first such request made in the action.

[2] The court is generous rather than overly strict when faced with a request for the indulgence of an adjournment: Ariston Realty Corp. v. Elcarim Inc. (2007), 2007 13360 (ON SC), 51 C.P.C. (6th) 326 (Ont. S.C.), at para. 38. The generosity of the court should not, however, be taken for granted.

[3] It is incumbent on the moving party to satisfy the court that the circumstances of the case favour the granting of an adjournment. The outcome on this motion demonstrates the importance of marshalling the evidence required to support a request for an adjournment of a trial – even when it is the first such request made in the action.

[4] On February 1, 2022, counsel for the parties were informed of the outcome on the motion, including the terms of the order made in the concluding section of this ruling. This ruling constitutes the written reasons that counsel were informed would follow.

Background

[5] In the fall of 2011, the plaintiffs were interested in purchasing a residential property in the Ottawa area. Through an agent they retained, the plaintiffs became aware of a residential property for sale in Fitzroy Harbour (“the property”).

[6] The defendants are the former owners (and vendors) of the property, the two individual listing agents who acted for the former owners on the sale of the property (“the agents”), the real estate brokerage with whom the listing agents were affiliated in late 2011 and early 2012 (“the brokerage”), and the individuals and corporate entities related to the home inspection carried out at the plaintiffs’ request (“the home inspectors”). The action as against the home inspectors and all crossclaims by or against them were previously dismissed.

[7] The purchase price for the property was $1,075,000. The sale closed in early January 2012. The plaintiffs took possession of the property on May 1, 2012. The plaintiffs allege that it was only when they took possession that they became aware of defects in the house. Those defects are alleged to include (a) water damage throughout the house, (b) an insect infestation in the house, and (c) the presence of a preserved wood post foundation, rather than a concrete foundation.

[8] The plaintiffs’ claims against the vendors are based in negligence and breach of contract. The plaintiffs allege that the vendors (a) made negligent misrepresentations with respect to the condition of the house, (b) failed to disclose repairs the vendors had made to correct the alleged defects, and (c) failed to notify the plaintiffs of changes to the facts set out in either the September 2011 Seller Property Information Statement or the October 2011 Agreement of Purchase and Sale.

[9] The claims against the agents are also based in negligence and breach of contract. The plaintiffs allege that the agents were negligent when listing the property and by virtue of representations they made throughout the sale process. As against the brokerage, the plaintiffs allege negligence related to (a) the training and competence of agents, (b) the investigation of the condition of the house, (c) the lack of disclosure of defects in the house, and (d) the failure to warn of the defects in the house.

[10] The plaintiffs also allege that the vendors and the brokerage are vicariously liable for the agents’ conduct.

[11] The defendants deny that they were negligent, that there was a breach of contract, or that there exists a basis for vicarious liability. The defendants allege that the plaintiffs were aware or, by virtue of reasonable opportunities to inspect the property, ought to have been aware of defects in the property by November 2011 when the conditions in the Agreement of Purchase and Sale were waived.

[12] The defendants also allege that,

• the defects arose for the first time after the plaintiffs took possession of the property;
• the plaintiffs were contributorily negligent by reason of their failure to maintain the property and to control the insect infestation; and
• the plaintiffs failed to mitigate their damages.

[13] The plaintiffs claim damages in the amount of $500,000 for negligence and/or breach of contract. The quantum of damages is based on expenses the plaintiffs allege they incurred to correct defects in the house or, in the alternative, a diminution in the value of the property (“the diminution claim”).

[14] When the statement of claim was issued, the full particulars of the expenses incurred by the plaintiffs were not available. At paragraph 51 of their pleading, the plaintiffs say that “[f]ull particulars of these expenses will be provided prior to the trial of this action.” At paragraph 52 of their pleading, the plaintiffs say that the alleged diminution of the value of the property is “in an amount presently unknown” and that “[f]ull particulars” of that amount would be provided prior to trial.

[15] The statement of claim has not been amended since it was issued in April 2014. There is no evidence to suggest that, at the trial of this action, the plaintiffs will seek either damages in an amount in excess of $500,000 or leave to amend their pleading to increase the quantum of damages claimed. A potential increase in the quantum of damages claimed is therefore not a factor on this motion.

[16] A chronology of the steps to date in the action is set out below. The agents and brokerage are referred to in the chronology as “the realtor defendants”:

Apr. 4, 2014 The statement of claim is issued;

Sept. 12, 2014 The home inspector defendants’ statement of defence is served;

Sept. 16, 2014 The realtor defendants’ statement of defence is served;

Oct. 2, 2014 The vendors’ statement of defence is served;

Jan. 14, 2015 The realtor defendants’ sworn affidavit of documents is served;

Jan. 22, 2015 The realtor defendants’ productions are served on the home inspector’s counsel (per their request);

July 22, 2015 The realtor defendants’ productions are served on plaintiffs’ counsel (per their request);

July 24, 2015 The plaintiffs’ draft, unsworn affidavit of documents and productions are sent to defence counsel;

Aug. 4, 2015 The vendors’ affidavit of documents and productions are served on the opposing parties;

Aug. 13-14, 2015 Examinations for discovery are conducted. The examinations of all parties, other than the plaintiffs, are completed;

Jun. 30, 2017 The vendors serve a notice of intention to act in person;

July 7, 2017 The examination for discovery of Rudy Paleshnuik is continued;

Oct. 4, 2017 The plaintiffs serve a notice of change of lawyer (to their current counsel);

Mar. 27, 2019 The plaintiffs serve their trial record;

July 5, 2019 The court sends a notice to the parties of the trial date (Feb. 28, 2022 for three weeks) and informs the parties that a date for a pre-trial conference will be arranged;

Oct. 25, 2019 Mediation is conducted;

Nov. 4, 2019 The defendant Affiliated Property Group Inc., serves a notice of change of lawyer;

Sept. 11, 2020 An order dismissing the action against and all crossclaims related to the home inspector defendants is issued;

Sept. 15, 2021 The remaining parties attend a pre-trial conference, at which February 28, 2022 is confirmed as the date for a three-week, judge alone trial;

Nov. 17, 2021 The plaintiffs produce an unsworn, supplementary affidavit of documents to the defendants. There are 450 documents listed in the unsworn supplementary affidavit of documents; 390 of those documents are undated;

Nov. 24, 2021 Plaintiffs’ counsel sends opposing counsel an email with a link to the supplementary productions;

Dec. 14, 2021 The vendors serve a notice of appointment of lawyer;

Dec. 15, 2021 The plaintiffs produce two new expert reports (an appraisal report and a standard of care report, the latter related to the realtor defendants);

Jan. 5, 2022 A second mediation is conducted;

Jan. 5, 2022 The defendants request that the plaintiffs consent to an adjournment of the trial;

Jan. 10, 2022 The plaintiffs refuse to consent to an adjournment of the trial;

Jan. 17, 2022 The defendants serve their respective materials on the motion for an adjournment of the trial;

Jan. 24, 2022 The plaintiffs serve their responding motion record; and

Jan. 24, 2022 The vendors serve a supplementary motion record.

[17] The defendants request an adjournment of the trial because of the production by the plaintiffs of (a) additional documents in November 2021, and (b) two expert reports in December 2021. The defendants submit that they require an adjournment to permit them to prepare for trial. Specifically, the defendants submit that they require additional time within which to continue the examination for discovery of Mr. Paleshnuik and to obtain reports in response to the two expert reports.

[18] So as to avoid an adjournment of the trial, the plaintiffs are prepared to withdraw the expert’s report related to the standard of care of the realtor defendants. The defendants’ position is that, regardless of the potential for that report to be withdrawn, the defendants require an adjournment to permit them to obtain their respective reports in response to the appraisal report produced in December 2021.

The Issues

[19] The following issues are determined on this motion:

1. When the factors considered on a motion for an adjournment are weighed, do those factors favour the granting or the denial of the defendants’ request for an adjournment of the trial scheduled for February 28, 2022?

2. If the relevant factors favour granting the adjournment, on what terms is the adjournment to be granted?

Disposition

[20] When the factors which may support the granting of an adjournment are weighed against the factors supporting the denial of an adjournment, the balance is tipped in favour of denying the adjournment. The defendants’ motion for an adjournment of the February 28, 2022 trial is dismissed without prejudice to the defendants (a) bringing a further motion for an adjournment at trial, and/or (b) pursuing relief at trial based on the timing, in 2021, of the production of documents and the appraisal report.

[21] Based on the undertaking given both prior to and on the return of the defendants’ motion, the plaintiffs shall, without further order of the court, be precluded from relying at trial on the standard of care report produced in December 2021.

The Law

[22] Rule 52.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 gives a broad discretion to a judge or an associate judge hearing a motion to adjourn a trial: “[a] judge may postpone or adjourn a trial to such time and place, and on such terms, as are just.” When exercising its discretion in accordance with r. 52.02, the court is required to apply the principles set out in r. 1.04:

• Pursuant to r. 1.04(1), the Rules, “shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits”; and
• The principle of proportionality must also be taken into consideration. Rule 1.04(1.1) requires the court to “make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.”

[23] The latitude which a trial judge has when determining a motion for an adjournment was addressed by the Court of Appeal for Ontario in Khimji v. Dhanani (2004), 2004 12037 (ON CA), 69 O.R. (3d) 790. In his dissenting reasons, at para. 14, Laskin J.A. said,

A trial judge enjoys wide latitude in deciding whether to grant or refuse the adjournment of a scheduled civil trial. The decision is discretionary and the scope for appellate intervention is correspondingly limited. In exercising this discretion, however, the trial judge should balance the interests of the plaintiff, the interests of the defendant and the interests of the administration of justice in the orderly processing of civil trials on their merits. In any particular case, several considerations may bear on these interests. A trial judge who fails to take account of relevant considerations may exercise his or her discretion unreasonably and if, as a result, the decision is contrary to the interests of justice, an appellate court is justified in intervening.

[24] Writing for the majority, at para. 27, Doherty J.A. adopted the principles quoted above. He added that, in addition to those principles, when determining a motion for an adjournment of a trial, a trial judge must also consider “the need to effectively enforce court orders.” For example, in Khimji, the appellant had all but ignored an order (a) granting a one-month adjournment of the trial so as to permit him additional time within which to retain a lawyer, and (b) requiring him to pay the respondents’ costs thrown away of $6,700.

[25] Motions for an adjournment of a trial may be heard by the trial judge or, if brought prior to trial, by a judge or an associate judge. A non-exhaustive list of the factors to be considered by a judge (trial or otherwise) or an associate judge hearing a motion for an adjournment was set out by Perell J. at para. 34 of Ariston Realty:

• the overall objective of a determination of the matter on its substantive merits;
• the principles of natural justice;
• that justice not only be done but appear to be done;
• the particular circumstances of the request for an adjournment and the reasons and justification for the request;
• the practical effect or consequences of an adjournment on both substantive and procedural justice;
• the competing interests of the parties in advancing or delaying the progress of the litigation;
• the prejudice not compensable in costs, if 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
• the need of the administration of justice to effectively enforce court orders.

[26] In The Law Society of Upper Canada v. Igbinosun, 2009 ONCA 484, 96 O.R. (3d) 138, the court summarized the procedural and substantive factors to be considered on a motion for an adjournment of trial. Citing, amongst other decisions, Khimji and Ariston Realty, the court identified certain factors which might support the denial of a request for an adjournment and other factors which may favour the granting of an adjournment.

[27] In the former category of factors, the court included “previous adjournments that have been granted to the applicant, previous peremptory hearing dates, the desirability of having the matter decided and a finding that the applicant is seeking to manipulate the system by orchestrating delay”: Igbinosun, at para. 37.

[28] The court included in the latter category of factors that “the consequences of the hearing are serious … and a finding that the applicant was honestly seeking to exercise his right to counsel, and had been represented in the proceedings up until the time of the adjournment request”: Igbinosun, at para. 37.

[29] The court also provided guidance as to how the various factors are to be weighed. At para. 37 of Igbinosun, Weiler J.A. said that the court must consider “the timeliness of the request, the applicant’s reasons for being unable to proceed on the scheduled date and the length of the requested adjournment”.

Analysis

[30] I start with the three factors listed immediately above and thereafter consider some of the factors from Ariston Realty.

a) Timeliness of Request

[31] The plaintiffs point to delay on the defendants’ part in pursuing the motion for an adjournment. The plaintiffs question why it was not until mediation on January 5, 2022 failed, that the defendants informed the plaintiffs that a request for an adjournment of the trial was being made. The plaintiffs also question the delay until January 17, 2022 before the defendants’ respective motion records were served.

[32] I find that, in the circumstances of this case from November 2021 forward, the defendants moved with dispatch to bring their motion for an adjournment. In support of that finding, I rely on several factors including the following:

• Counsel for the realtor defendants was involved in a trial which commenced on Monday, November 22, 2021 – only two clear business days after the plaintiffs produced 450 documents;
• Although that two-week trial ended on December 2, 2021, counsel for the defendant realtors continued his work on it by preparing written submissions. Those submissions were completed on December 21, 2021;
• The holiday period from December 25, 2021 to January 1, 2022 and the related statutory holidays played a role in when the defendants were in a position to serve their respective motion records and the return date for the motion;
• Once retained on December 14, 2021 counsel for the vendors acted expeditiously to arrange for mediation (the second one in the action) to be conducted on January 5, 2022;
• It was reasonable, before serving the motion materials, for the defendants to ascertain whether mediation resulted in a resolution or, at a minimum, meaningful settlement discussions; and
• The period from Wednesday, January 5, 2022 (the date of the second mediation) to Monday, January 17, 2022 (the date on which the defendants’ respective records on this motion were served) includes seven business days. That is a reasonable amount of time for the preparation and service of the motion materials – particularly in the midst of a pandemic, including the emerging Omicron variant.

[33] In summary, I find that the request for an adjournment was made in a timely manner in the circumstances of this case. The outcome of the motion does not, however, turn on the timeliness of the request for an adjournment. I deal next with the defendants’ reasons for requesting the adjournment.

b) Reasons for Being Unable to Proceed on the Scheduled Date

[34] The defendants submit that for two reasons they are unable to proceed on February 28, 2022. First, the defendants require time to continue the examination for discovery of Mr. Paleshnuik – specifically with respect to the documents produced in November 2021. Second, the defendants require time to obtain their respective reports in response to the appraisal report produced in December 2021.

Continuation of Examinations for Discovery

[35] There is no evidence from the defendants as to why they were or remain unable to conduct the continuation of the examination for discovery of Mr. Paleshnuik in time to proceed with the trial on February 28, 2022. For example, there is no evidence from the defendants addressing the following matters:

• Whether the defendants intend to conduct further examination for discovery of only Mr. Paleshnuik or of both plaintiffs;
• A general description of the subject matters to be addressed on the proposed continuation of the examination(s) for discovery;
• The number of hours the defendants anticipate they require to continue the examination(s) for discovery;
• What steps, if any, were taken by the defendants subsequent to the receipt of the documents in November 2021, to schedule the continuation of the examination(s) for discovery on a date in the three-month period between the receipt of the documents and February 28, 2022; and
• What scheduling conflicts, if any, prevented the continuation of the examination(s) for discovery of one or both of the plaintiffs from being booked for a date sufficiently far in advance of February 28, 2022 to permit the defendants to proceed to trial on that date.

[36] With respect to the second bullet point above, there is minimal evidence as to which of the documents produced in November 2021 give rise to the defendants’ request to continue the examination(s) for discovery. At paragraph 25 of his affidavit, Mr. Paleshnuik says that only 124 of the 450 documents produced in November 2021 had not previously been produced. He describes 68 of the new documents as photographs and the 56 other new documents as “largely drawings, updated quotations, estimates, invoices, and receipts.” Mr. Paleshnuik’s evidence is that the photographs were taken by him to provide evidence of the condition of the house over time.

[37] Mr. Paleshnuik’s evidence is that of the ‘new’ documents produced in November 2021, 15 are quotations/estimates and 12 are invoices/receipts. How significant are those documents in the context of the $500,000 claimed for expenses incurred to remedy the defects? Do those documents relate to expenses incurred for which other documents have already been produced? Do those documents relate to expenses not previously identified? What is the monetary amount associated with expenses identified for the first time in the documents produced in November 2021?

[38] There is no evidence as to the amount of time which the examinations for discovery of the plaintiffs have consumed to date. Based on the seven-hour limit prescribed in r. 31.05.1, do the defendants require leave to continue the examinations for discovery of one or both of the plaintiffs?

[39] I am unable to conclude that the production of documents in November 2021 is such that the defendants are entitled to continue the examination for discovery of one or both of the plaintiffs, do not require leave to continue the examination(s), and are, without the benefit of an adjournment, unable to complete any further examination(s) for discovery in preparation for trial commencing on February 28, 2022.

Expert Reports

[40] There is no evidence from the defendants to assist the court in determining why they require an adjournment so as to obtain expert reports. For example, the evidence does not address the following matters:

• Whether, prior to December 2021, the defendants had retained any experts who have the requisite expertise to respond to the reports produced by the plaintiffs at that time;
• If experts had not previously been retained by or on behalf of the defendants, what efforts were made to retain experts?
• What experts, if any, have been retained since December 2021 and specifically when were they retained? and
• How much time the experts require to complete and be in a position to deliver their respective reports.

[41] The plaintiffs undertake not to rely on the standard of care report if the defendants’ request for an adjournment is not granted. I therefore focus on the defendants’ request for an adjournment to permit them to obtain reports in response to the appraisal report produced in December 2021. That report is said to address the diminution claim.

[42] Based on oral submissions, it appears that the parties disagree as to whether the appraisal report produced in December 2021 is the first time the plaintiffs have quantified the damages based on the diminution claim. There is, however, no evidence to support the parties’ respective positions on that issue.

[43] In oral submissions, the realtor defendants took the position that the appraisal report produced in December 2021, was the first time the plaintiffs had “served” a report quantifying the damages they are seeking. In responding oral submissions, the plaintiffs took the position that they had previously “served” a report from an appraiser quantifying the damages in the diminution claim. Whether or not any appraisal report has been “served” on behalf of the plaintiffs is addressed in a later section of this ruling.

[44] In support of their position that the appraisal report produced in December 2021 is the second such report produced (or served) on their behalf, the plaintiffs rely on the affidavit of Mr. Paleshnuik. At paragraph 20, Mr. Paleshnuik says, “[o]n December 15, 2021 Mr. McBride served two expert reports on the Defendants. One report provided an opinion on the standard of care owed by listing agents and the other report was an updated appraisal of my property.”

[45] A copy of the appraisal report is not attached as an exhibit to the Paleshnuik affidavit and is not included in the defendants’ motion record or supplementary motion record. It would have been helpful to the court if a copy of that report was included in the record.

[46] Exhibit “Q” to the Paleshnuik affidavit is a single-page document providing a summary explanation of some of the documents produced by the plaintiffs in November 2021. Two of the documents appear under the heading “Reports” and are identified only as “374 and 376”. In oral submissions, plaintiffs’ counsel identified “376” as a report from an appraiser. A copy of “376” is not before the court.

[47] It was incumbent on the defendants to provide evidence in support of their request for a finding that the appraisal report produced by the plaintiffs in December 2021 was the first time that the plaintiffs had quantified the damages sought based on the diminution claim. The defendants failed to do so.

[48] In oral submissions, the realtor defendants relied on what they submit is a difference between the approach taken by the author of the appraisal report produced in December 2021 and the approach upon which the realtor defendants intend to rely at trial with respect to the quantification of damages in the diminution claim. The realtor defendants submit that the author of the report produced in December 2021 assessed diminution in the value of the property as of a date other than the date of the sale.

[49] The position of the realtor defendants is that damages related to the diminution claim must be assessed as of the date of the sale. As a result of the theory of damages upon which the plaintiffs appear to be relying, the realtor defendants’ submit that they must now obtain an appraisal report assessing damages in the diminution claim as of the date upon which the plaintiffs’ expert relied (i.e., a date other than the date of the sale).

[50] There is no evidence from the defendants as to what steps, if any, they have taken, in the seven-plus years since they served their respective statements of defence and in the four-plus years since the examination for discovery of Mr. Paleshnuik was completed, to be in a position to respond at trial to the damages based on the diminution of the value of the property (i.e., whether based on the theory of damages which the defendants intend to advance or on the theory now said to be advanced by the plaintiffs).

[51] It was incumbent upon the defendants to provide evidence to support the findings that they request the court to make regarding (a) the significance of the contents of the appraisal report produced in December 2021, and (b) the impact of the contents of that document on the defendants’ ability to proceed to trial on February 28, 2022. The defendants failed to do so.

Summary

[52] The reasons upon which the defendants rely in support of their request for an adjournment of the trial are not made out by the evidence. The defendants failed to establish that without an adjournment of the trial their respective abilities to fully and adequately defend the proceeding would be significantly compromised.

c) Length of the Requested Adjournment

[53] In Louis v. Poitras, 2020 ONSC 5301, 152 O.R. (3d) 760, at para. 46, Beaudoin J. held that “real and substantial prejudice arises simply by reason of delay.” That decision was on a motion to strike a jury notice. Beaudoin J. considered the consequences to the parties if, in the midst of the pandemic, the jury notice was not struck, and the trial was adjourned.

[54] The significance of the prejudice caused by delay was emphasized in the decision on the subsequent motion to stay the decision of Beaudoin J. and in the substantive decision on the appeal: see Louis v. Poitras, 2020 ONCA 815, 59 C.P.C. (8th) 297, at para. 33 and 2021 ONCA 49, 59 C.P.C. (8th) 318, at para. 22, respectively.

[55] I see no reason to distinguish in principle between prejudice that arises from delay in proceeding to a civil jury trial and prejudice that arises from delay in proceeding to a civil trial before a judge alone. I say “in principle” because any request for an adjournment must be decided on the circumstances of the specific case.

[56] Based on the decisions in Louis v. Poitras, I find that the plaintiffs would suffer prejudice if the trial scheduled for February 28, 2022 is adjourned.

[57] It is now more than ten years since the plaintiffs purchased the property, almost eight years since the action was commenced, and more than four years since the examinations for discovery of the plaintiffs were completed. How much longer will the plaintiffs have to wait for the trial of their action if it is adjourned?

[58] There is no evidence as to when the trial of this action is likely to proceed if the request for an adjournment is granted. There is also no evidence before the court as to length of the adjournment that the defendants require to permit them to complete their preparation for trial.

[59] The lack of evidence with respect to when the trial might proceed, if an adjournment is granted, is not surprising. In light of restrictions imposed because of the pandemic, and the impact of those restrictions on the administration of justice, it is impossible to state with certainty when there will be time available in the court’s schedule for the trial of this action. That said, it was incumbent on the defendants to at least attempt to ascertain when in 2022 and, if necessary, in 2023, there may next be time in the court’s schedule during which this trial could proceed.

[60] The plaintiffs submit that if the trial is adjourned, they will be “thrown to the wind” without any idea whatsoever as to when their action might proceed to trial. I understand that, in making that submission, the plaintiffs mean no disrespect to the court’s administrative staff. I take the submission as intended to emphasize the uncertainty as to the potential delay by which the plaintiffs will be prejudiced if the trial is adjourned.

[61] There is no evidence to support a finding as to the length of the delay in the trial of this action if the adjournment is granted. The defendants have not met the onus that they bear to establish that the third factor, identified by Weiler J.A. in Igbinosun, weighs in favour of granting the request for an adjournment.

d) Factors from Ariston Realty

[62] In no particular order, I consider several of the factors listed by Perell J. in Ariston Realty Corp. First, what are the practical implications of the refusal to grant the adjournment? I find that the defendants are not left without remedies in response to documents produced in November 2021 and/or the expert reports produced in December 2021.

[63] I am deliberate in my use of the verb “produced”. Based on the record, it is not possible to determine whether the plaintiffs have complied with the Rules governing documentary discovery and service of expert reports.

[64] With respect to documentary discovery, there is no evidence that the plaintiffs served a sworn affidavit of documents. Without deciding the issue, the evidence is that plaintiffs’ counsel sent defence counsel an unsworn affidavit of documents and, later, an unsworn supplementary affidavit of documents. It appears that the plaintiffs may not have complied with r. 30.03 (service of a sworn affidavit of documents) and/or r. 30.07 (service of a sworn supplementary affidavit of documents).

[65] Some of the documents produced by the plaintiffs in November 2021 date as far back as 2014. Mr. Paleshnuik’s evidence is that only two or three of the 68 photographs produced in November 2021 were taken in 2021; all of the other photographs were taken between 2014 and 2017 or between 2017 and 2020. The examination for discovery of Mr. Paleshnuik commenced in 2015 and was completed in 2017.

[66] Why were some of the documents, including photographs, dating back to 2014 through 2017 not produced in either 2015 or 2017? Given the delayed production of documents, are the plaintiffs entitled to rely at trial on all of the documents produced in November 2021? Rule 30.08 sets out consequences to a party for failing to disclose a document. If, at trial, the plaintiffs require and are granted leave to rely on some or all of the documents produced in November 2021, it remains open to the defendants to request an adjournment of the trial as one of the terms of leave being granted.

[67] The appraisal report was produced in December 2021 under cover of a letter from plaintiffs’ counsel. In that letter, plaintiffs’ counsel says, “[f]urther to our correspondence about the potential January mediation, attached are two expert reports”. In the same letter plaintiffs’ counsel describes one of the reports as providing “an appraisal of the property”.

[68] Procedural matters relevant to the appraisal report produced in December 2021 include the following:

• There is no evidence that the report is an expert report within the meaning of r. 53, that the report was served in accordance with r. 53, or that, together with the report, the plaintiffs served the documents required under r. 53.03(2.1);
• If the appraisal report is an expert’s report, then the plaintiffs were required to serve the report and the documents listed in r. 53.03(2.1) at least 90 days prior to the September 2021 pre-trial conference (r. 53.03(1)); and
• If the plaintiffs failed to comply with rr. 53.03(1) and (2.1), then they require leave of the court to rely on the report or, in the alternative, opinion evidence from the author of the appraisal report (r. 53.03(3)).

[69] If the plaintiffs require and are granted leave of the court to rely at trial on the appraisal report produced in December 2021, then it is open to the defendants to request an adjournment of the trial to permit them to obtain their respective responding reports.

[70] Next, I consider the amount involved and the complexity of the proceeding. I find that in the context of the types of matters that proceed to trial before this court, the amount involved, while clearly significant to the parties, is a moderate six-figure amount. I also find that the assessment of damages is not complex – it is based either on expenses incurred or an assessment of the diminution of the value of the property.

[71] I also consider the competing interests of the parties. The vendors were self-represented from mid-2017 until late 2021. They chose to participate in several steps in this proceeding, including a pre-trial conference, without being represented. The vendors have, since at least 2019, been aware of the trial date. There is no evidence that they took any steps, from 2017 to late 2021 to attempt to retain counsel, to attempt to retain any experts upon whose opinion evidence they might seek to rely at trial, or to otherwise be prepared to proceed to trial as self-represented litigants.

[72] The vendors’ conduct as self-represented litigants during the most recent 4.5 years does not support granting their request for an adjournment of the trial.

[73] The vendors highlight that if the trial proceeds on February 28, 2022, they will be represented by someone other than senior counsel who is one of two of their lawyers of record on the motion. The vendors do not, however, rely on senior counsel being unavailable for the trial in support of their request for an adjournment. The vendors conceded that if the request for an adjournment is not granted, it will be necessary for another senior lawyer to represent the vendors at trial.

[74] Last, I consider that the action is now eight years old; it has been more than four years since a party was examined for discovery; and it has been almost three years since the trial date was set. It is time for this action to be determined on its substantive merits. To grant the request for an adjournment, specifically based on the existing record, would run contrary to the court’s obligation to see that civil proceedings are processed in an orderly manner.

Order Made

[75] For the reasons set out in this ruling, the court makes the following order:

1. The defendants’ motion for an adjournment of the February 28, 2022 trial is dismissed.

2. The dismissal of the defendants’ motion for an adjournment of the trial is without prejudice to the defendants,

   a) bringing a further motion for an adjournment at trial, and/or

   b) pursuing relief at trial based on the timing of the production of one or more of the documents produced in November 2021 and of the appraisal report produced in December 2021.

3. The plaintiffs shall, without further order of the court, be precluded from relying at trial on the standard of care report produced in December 2021.

Costs of the Motion

[76] There shall be no costs of this motion. Although the plaintiffs were successful in opposing the motion, I find that their conduct with respect to documentary discovery and the production of expert reports is such that they should not be rewarded with costs of the motion. It remains to be determined whether the plaintiffs’ conduct in that regard contributes, at a later date, to an adjournment of the trial and/or evidentiary rulings at trial in favour of the defendants.

Madam Justice Sylvia Corthorn

Released: February 9, 2022

COURT FILE NO.: 14-60524

DATE: 2022/02/09

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

RUDOLPH PALESHNUIK and LYNDA PALESHNUIK

Plaintiffs

– and –

GARFIELD CHURCHILL also known as Gary Churchill, ANN MARIE CHURCHILL, TEAM REALTY INC. operating as Royal Lepage Team Realty, MATTHEW SMITH, SHEILA SMITH, TARA MARCOUX-TYNSKI, PIN PROPERTY INSPECTION NETWORK BOOKING SERVICES LTD., AFFILIATED PROPERTY GROUP INC. and TED CAPES

Defendants

RULING on motion for AN adjournment of trial

Madam Justice Sylvia Corthorn

Released: February 9, 2022