Momammad Omar Mansoury v. John Baaz Sadullah
COURT FILE NO.: CV-19-00614708
DATE: 20240527
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MOMAMMAD OMAR MANSOURY Plaintiff
– and –
JOHN BAAZ SADULLAH Defendant
COUNSEL: Rahul Soni, for the Plaintiff David Milosevic, for the Defendant
HEARD: May 27, 2024
Papageorgiou J.
Reasons For Denying Trial Adjournment Request
Overview
[1] This case involves claims by the plaintiff that he has a resulting and/or constructive trust over certain property located at 75 Parkheights Trail in Nobleton which is currently in the name of the defendant (the “Property”). The plaintiff has occupied the Property since it was purchased in 2017 and the defendant’s position is that he was supposed to be paying rent in the amount of $6,500 per month. He claims that the defendant has defaulted in this regard and that he is owed more than 40 months of rent.
[2] This matter has some history with the plaintiff having had two former counsel, each of whom moved to get off the record. This most recently occurred on April 9, 2024, and the plaintiff was self-represented after that time, for a time.
[3] The trial was scheduled to proceed on May 27, 2024. On May 24, 2024, I held a trial management conference. At that time, proposed new counsel for the plaintiff, Mr. Rahul Soni, attended. He advised that he had not been formally retained but that the plaintiff had discussed possibly retaining him and he needed an adjournment in order to prepare. He said that the plaintiff contacted him a few days before May 22, 2024, which was a further pre-trial in this matter before Justice Speigel.
[4] I directed that the issue of the requested adjournment be addressed this morning, with the parties to send me any materials in respect of this request prior to 10:00.
[5] The defendant forwarded a memo outlining the procedural history as well as caselaw and prior endorsements. The plaintiff did not submit any materials. However, Mr. Soni did attend today and advised that he had been formally retained.
[6] He requested a short adjournment but trial dates for an adjourned trial of this length are not available until sometime in 2025.
Decision
[7] For the reasons that follow, I deny the adjournment.
Analysis
Procedural History
[8] The plaintiff commenced this action on February 19, 2019, claiming a resulting and constructive trust over the Property after the defendant had brought a proceeding before the Landlord and Tenant Board to have him evicted.
[9] In April 2022, this matter was set down for a 5-day trial commencing January 30, 2023, with a pre-trial on November 2, 2022.
[10] In September 2022, the plaintiff served a Notice of Intention to Act in Person. As a result, the parties attended Civil Practice Court. The plaintiff appeared representing himself and stated he was in the process of retaining new counsel. Justice Dow urged the plaintiff to expedite this given the impending trial date.
[11] The defendant then made a request for case management because of concerns that the plaintiff would seek to delay this matter. The request was denied primarily because the matter was not seen to be that complex, but Myers J. remarked as follows:
Justice Dow has already advised the plaintiff of the need for him to appoint counsel soon. The plaintiff should not expect the trial to be adjourned just because new counsel is appointed. There are numerous issues to balance in deciding whether to adjourn a fixed date trial that has been set for a long time. Fairness to all parties and considerations of the court’s processes and backlog all factor into this issue. The plaintiff should be actively preparing for trial. If he needs help, he may wish to contact the Pro Bono Ontario Hotline …Excellent resources are also available for non-lawyers at the National Self-Represented Litigants Project website…
[12] In December 2022, the plaintiff retained new counsel, Mr. Stanleigh, who requested an adjournment of the trial.
[13] In January 2023, the defendant agreed to adjourn the trial in exchange for the plaintiff’s agreement to pay the $6,500 per month as agreed and if the plaintiff failed to pay, a consent judgment would be submitted to the court.
[14] There are some intervening steps afterwards with respect to the scheduling of this trial for which neither the plaintiff nor defendant are responsible. There was also a judgment taken out as a result of the late payment one month, but Justice Centa set that aside because of concerns that there had been an intervening holiday such that the plaintiff may not have actually been late in his payment.
[15] In January 2024, the parties re-attended trial scheduling court and obtained trial dates for May 27, 2024.
[16] On April 9, 2024, the plaintiff’s new lawyer, Mr. Stanleigh brought a motion to have himself removed as counsel due to a complete breakdown in the solicitor and client relationship
[17] Justice Chalmers reviewed this matter in detail and convened an urgent case conference.
[18] Both Mr. Stanleigh and the defendant’s counsel both advised that the plaintiff is involved in multiple lawsuits in Ontario and should have no difficulty in either finding a new counsel or acting on his own behalf. The plaintiff did not make any substantive submissions with respect to Mr. Staneleigh’s motion and there is no notation in Justice Chalmer’s endorsement that the plaintiff disputed what both counsel had said about the plaintiff’s ability to find and retain new counsel.
[19] Justice Chalmers granted the removal order and stated:
I am concerned that Mr. Mansoury will seek an adjournment of the trial scheduled for May 27, 2024. It is my view that Mr. Stanleigh was required to bring his motion to be removed as solicitor of record, because of Mr. Mansoury’s actions. Mr. Mansoury cannot expect to not pay his lawyer and that the lawyer will continue to act for him at the trial. Mr. Mansoury must expect these consequences when he proceeds in this manner.
Given the procedural history of this action, it would be unfair to Mr. Sadullah if the matter was adjourned again, through no fault of his own. Mr. Sadullah is entitled to his day in court. The trial is scheduled for May 27, 2024. It is scheduled for only 5 days. I am of the view that there is sufficient time for Mr. Mansoury to retain new counsel who will have sufficient time to prepare for a short trial.
I order that the trial date is peremptory on Mr. Mansoury. I advised Mr. Mansoury that no further adjournment requests from him will be entertained by the court. He will be required to proceed to trial on May 27, 2024, without or without counsel.
[20] It has been two years since the trial in this matter was first scheduled to be heard.
The Applicable Principles
[21] In Khimji v. Dhanani et al, 2004 CanLII 12037 (ON CA), [2004] O.J. No. 320, the Court of Appeal considered a similar situation where there had been previous adjournments and the plaintiff appeared at trial requesting an adjournment which was denied. The plaintiff was not prepared to proceed, and the trial judge dismissed the action.
[22] The Court of Appeal upheld that the trial judge’s dismissal of the request for the adjournment and the trial decision.
[23] The Court of Appeal outlined that a trial judge enjoys a wide discretion to grant or refuse a requested adjournment of a trial. In considering the issue, the trial judge should balance the interests of the plaintiff, the interests of the defendant, the interests of the administration of justice in the orderly processing of civil trial on their merits, and the need to effectively enforce court orders.
[24] In that case, even though the plaintiff was blind, the majority concluded that the refusal of the adjournment was justified principally because the plaintiff had ignored the order of the court where counsel was removed from the record and the court’s direction that the plaintiff should find new counsel. The court concluded that the plaintiff made no effort to retain new counsel until the eve of trial. I note here that the backlog at that time was not as bad as it is now.
[25] The Court stated as follows:
[35] Individual litigants have a right to pursue and defend their respective claims. They must do so, however, within a court structure that must accommodate thousands of individual litigants. That system can function effectively only when litigants take scheduling commitments seriously and make genuine efforts to comply with court orders relating to adjournments and related matters. Where a litigant successfully obtains the adjournment of a trial having failed to exercise due diligence in retaining counsel, that litigant must expect that absent unforeseen circumstances, the trial will proceed on the new trial date. Similarly, where the adjournment is granted on terms, the litigant must take all reasonable efforts to comply with those terms. If in the assessment of the trial court a litigant does not take reasonable steps to be prepared for the new trial date and does not make reasonable attempts to comply with the associated costs order, the trial court must have the authority to dismiss the claim. That is not to say that the dismissal of the claim will be inevitable in circumstances such as those presented on this appeal, but rather it is to say that the option of dismissal must be available to the trial court to ensure the ongoing effective operation of trial lists and to preserve the integrity of court orders.
[36] This court sits at a distance from the day-to-day operation of trial courts. That distance must impair this court's ability to review decisions such as the one under appeal. Strong deference is due to the decision of those in the trial courts who are responsible for the day-to-day maintenance of an efficient and just system of civil trials. Some judges may have given the appellant a third opportunity to proceed to trial, despite his apparent disregard for previous trial dates and his failure to make any attempt to comply with the court order relating to costs. I would not have interfered with the decision granting a third adjournment. Equally, however, I would not brand as unreasonable the decision refusing a third adjournment in light of the appellant's failure to make any effort to retain counsel who could act on the trial date and his failure to make any effort to pay the costs order. The trial court is in a much better position to balance the competing interests than is this court.
[26] An important function of the court is to ensure that the trial procedure is fair and balanced so that the parties are able to fairly advance their positions.
Prejudice to the defendant
[27] Counsel for the plaintiff argues says that he needs a few weeks to get ready and that he could conduct this trial during the week of June 10 or June 17, but counsel for the defendant is not available and says that his schedule is filled for the foreseeable future. In any event, there are no dates available until sometime in 2025.
[28] The prejudice to the defendant consists of the fact that he has been waiting for a trial since 2022. While some of the delay is not the plaintiff’s fault, at least one adjournment is the plaintiff’s fault and if I granted this adjournment, this would be the plaintiff’s fault to. While this matter is delayed, the plaintiff continues to live in what the defendant contends is his home and has been doing so since 2017. There is no guarantee that even if I adjourn this trial, that the plaintiff will not attend again, having dismissed his lawyer or with his lawyer seeking to be removed again for non-payment.
[29] This delay is a real prejudice. Myers J. has already set out in his endorsement of October 25, 2022, his view that there was already real prejudice to the defendant at that time because the defendant had had to push this matter forwards due to the plaintiff’s non-participation. He noted that on October 22, 2022, Justice Dow had urged the plaintiff to retain counsel, that he had had two months to do so and had not only failed to do so but had ignored all correspondence made by the defendant.
Prejudice to the plaintiff
[30] I take no issue with the plaintiff’s argument that justice must not only be done but be seen to be done: Mallette, 2020 ONSC 1448. However, I do take issue with the prejudice that he asserts and with his argument that failing to grant an adjournment will fail this test.
[31] Proposed counsel for the plaintiff does not argue that he is not available this week, only that he needs more time to prepare. He also does not argue that he will not conduct the trial for the plaintiff unless this adjournment is granted. From where I sit, new counsel was consulted a few days prior to May 22 and even at that time, the plaintiff had not retained him. Counsel was not formally retained until this morning.
[32] Had the plaintiff actually retained Mr. Soni at that time, in my view, there would have been more than sufficient time for Mr. Soni to review this matter. It is not clear why the plaintiff only consulted Mr. Soni at that time and did not retain him.
[33] As well, the defendant points out that this is a simple matter involving whether or not the plaintiff made 6 payments and whether or not there was an agreement that the defendant would hold the Property in trust for the plaintiff. He says that when new counsel contacted him, he said that he was prepared to walk him through the issues to get him up to speed. I have reviewed the pleadings and I agree this is not a complex matter. Justice Myers also arrived at that conclusion as one of the bases for not making a case management order.
[34] Multiple copies of the Trial Management Report have been completed and agreed to with previous counsel.
[35] The following steps have been completed by the parties, when the plaintiff had counsel:
- There is an Agreed statement of facts
- There is a Joint book of documents
- There is a Book of disputed documents
- The defendant has served a Request to admit served (Jan 2023)
- Evidence Act notices have been served
[36] There have also been three pre-trials where the issues have been discussed.
[37] I agree with defence counsel’s submission that the prejudice of having to proceed to trial as a self-represented litigant, if that is indeed what happens is not strong in this case. The plaintiff has been living with this case for five years and it is unclear to me why he would be unable to conduct this trial on his own with the assistance that I am required to give in accordance with the Canadian Judicial Council’s Statement of Principles on Self Represented Litigants and Accused Persons. These principles provide guidance to a trial judge and explain the duties of self-represented litigants to become familiar with the legal process with which they are engaged, to prepare their own case and be respectful. The Supreme Court of Canada endorsed these principles in Pintea v. Johns, 2017 SCC 23.
[38] It is the plaintiff who gave evidence about making these 6 payments and the alleged agreement to hold the property in trust for him as a result of them.
[39] There is nothing inherently unfair about trials conducted by self-represented litigants. I am able to ensure the trial process is fair and balanced using these principles.
[40] I note as well that the plaintiffs’ main witness is himself and he is available. There is no evidence that his other witnesses, all of whom are expected to testify for a short duration based upon the Trial Management Report, are unavailable.
The administration of justice
[41] The administration of justice requires that litigants are ready to proceed when their case is scheduled, particularly where there have already been adjournments that have already resulted in the waste of court time, where a plaintiff has known about an upcoming date for some time and has failed to obtain new counsel, and where that plaintiff has been advised that there would be no further adjournments.
[42] The plaintiff has been told by Justice Dow, Justice Myers and most recently by Justice Chalmers that he should retain counsel. Given these admonishments as well as Mr. Stanleigh’s submission that the plaintiff is a frequent litigator who would have no trouble finding counsel it is unclear why he waited until recently to retain Mr. Soni, who says he was consulted on a limited retainer to seek an adjournment a few days before May 22, 2024.
[43] I add that one of the reasons why there is such a significant backlog is litigants’ requests for adjournment of fixed trial dates and the administration of justice will grind to a halt if an adjournment is granted in every case where parties already granted indulgences are able to get new adjournments without any significant or satisfactory explanation as to why they have not acted sooner to retain counsel. The plaintiff has already had significant indulgence in this regard. He is the author of his own misfortune, if there is any.
Interest in enforcing court orders
[44] The interest in enforcing court orders, in particular Justice Chalmers’ order that this matter is now peremptory on the plaintiff, also favours denying the adjournment.
[45] Balancing all of the factors which include prejudice to the plaintiff which I find is not significant, prejudice to the defendant which I find more significant, the administration of justice and the need to effectively enforce court orders, I conclude that the adjournment should be denied.
[46] I have, however, adjourned for the day and I will give the plaintiff a document today regarding how self-represented litigants can conduct trials for his assistance. The trial will commence on Wednesday with his new counsel with the plaintiff as a self-represented litigant.
[47] Apparently, there are some issues with caselines and Mr. Soni’s access to it. If there are any issues with respect to the materials and caselines I ask that the parties contact my assistant polly.diamante@ontario.ca to advise me of any issue so that I may assist.
[48] There is no formal agreement as to authenticity. I am directing that the parties attempt to arrive at one before the trial commences in accordance with Court of Appeal decision Girao v Cunningham, 2020 ONCA 260.
[49] Counsel for the defendant has advised that all the documents are bank account statements, copies of cancelled checks, credit card statements and lawyer’s trust ledgers that would all fall under business act exemptions and that notices were served in time, but he will seek to address this issue in the intervening two days if there are any.
Papageorgiou J.
Released: May 27, 2024
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MOMAMMAD OMAR MANSOURY Plaintiff
– and –
JOHN BAAZ SADULLAH Defendant
REASONS FOR JUDGMENT
Papageorgiou J.
Released: May 27, 2024