Court File and Parties

Court File No.: Woodstock CV-23-00000030 Date: 20240909 Superior Court of Justice - Ontario

Re: Victoria Adeniji, Plaintiff And: Saleha Maqbool and Rajvir Jhutty, Defendants

Before: Justice B.A. MacFarlane

Counsel: Gregory P. Weedon, for the Plaintiff Obaidal Hoque, for the Defendants

Heard: August 30, 2024

Endorsement

Overview

[1] This is a summary judgment motion that has been scheduled since February 2024, with a timetable for the serving and filing of materials. For the reasons set out below, I declined to grant an adjournment sought by the defendants, particularly because the defendants did not act with reasonable diligence, and because I am not satisfied that the evidence of the non-parties is relevant to the matters in issue on the motion.

Background Facts

[2] On March 6, 2023, the Plaintiff commenced an action against the defendants for failure to complete a real estate transaction regarding a residential property in Woodstock, Ontario, which was to close on July 21, 2022.

[3] The defendant Rajvir Jhutty is a registered real estate agent in Ontario, and, together with the co-defendant, owns multiple investment properties. On March 11, 2022, the defendants made the offer to purchase the plaintiff’s property for an investment and not for personal use, but they failed to complete the transaction on the closing date of July 21, 2022.

[4] The defendants served and filed a statement of defence dated September 1, 2023 in which it alleged, inter alia, misrepresentations by the plaintiff and her real estate agent in the property listing document, as well as certain conduct by her real estate agent, such as declining a request to view the property without first making an unconditional offer to purchase the property.

[5] The parties agreed to proceed with this matter in a summary way, and a motion date was obtained for Summary Judgment, with an initial return date of July 18, 2024.

[6] A timetable for the motion was agreed upon, as set out in the Order of Bezaire, J. dated February 9, 2024. It included that the defendants would serve and file responding material by April 5, 2024, with cross-examinations to be completed by May 17, 2024 and the defence factum to be filed by July 12, 2024. It also contained a term that states: “If the parties require a change to this Timetable, they may request a Case Conference with the Court.” [1] It appears that the parties consented to some amendments to the timetable without a case conference.

[7] The defendants served and filed responding material, which were affidavits of the defendant Rajvir Jhutty, sworn June 26, 2024 and August 26, 2024.

[8] The defendants intended to seek an adjournment of the Summary Judgment at the motion initially returnable July 18, 2024, on the basis that non-party examinations were required of the plaintiff’s initial real estate agent, Etin Imasuen, and the re-listing agent, Ashish Grover. They would then cross-examine the plaintiff on her affidavit. As it turns out, the July 18, 2024 motion date was administratively adjourned. The new date set for the motion was August 30, 2024, approximately five weeks later.

[9] The defendants seek to adjourn the motion today (August 30, 2024) for the reasons noted above. The defendants say that it was not until the defendants themselves were cross-examined on July 8, 2024, that the need for the agents’ evidence was revealed. They say that the file of the real estate agents is necessary and there may be issues of credibility between the agents, which they say are integral to the summary judgment motion. The defendants do not set out the nature of the evidence they say is likely to be material or relevant to the matters in issue.

[10] The supplementary affidavit of the defendant Rajvir Jhutty, sworn August 26, 2024, states that a summons to witness was issued July 26, 2024, and efforts to serve the non-parties have been unsuccessful because the contact information does not appear to be updated. There is no evidence that the defendants sought the information from the plaintiff.

[11] The defendants did not seek a case conference date in advance of this motion date to amend the timetable.

[12] The plaintiffs opposed the adjournment for two reasons: (1) the defendants are on an unnecessary fishing expedition for irrelevant information, particularly because the plaintiffs agree with the statements made in the property listing as outlined by the defendants; and (2) the defendants did not act with reasonable diligence to obtain the evidence for the motion, particularly because the first efforts made to contact the non-parties happened after the administrative adjournment of the initial motion date.

Law

[13] Cross-examination on an affidavit filed by an adverse person on the motion is permissible pursuant to Rule 39.02(1) of the Rules of Civil Procedure. However, an adverse party may not be cross-examined before evidence of a witness has been completed, without leave [r. 39.02(2)].

[14] Evidence sought through examination of a witness before a hearing is permissible pursuant to r. 39.03(1). Compelling the evidence of a witness is done in the same manner as in r. 53. [2]

[15] The onus is on the party seeking to conduct the examination to show, on a reasonable evidentiary basis, that the examination would be conducted on issues relevant to the pending application, and that the proposed witness was able to offer relevant evidence. [3] Otherwise, the court may quash the evidence or a summons to witness.

[16] A party seeking broad evidence, without specifying what evidence is sought, “may be seen to be fishing in hopes of finding information relevant to the issues that concern it.” [4]

[17] Rules 39.02(3) and 39.03(3) of the Rules of Civil Procedure specifically address the timeliness of cross-examining or obtaining evidence of a witness. Under each section, the right to cross-examine or examine a witness before a hearing “shall be exercised with reasonable diligence, and the court may refuse an adjournment of a motion or application for the purpose of an examination where the party seeking the adjournment has failed to act with reasonable diligence.” [5]

[18] Failing to abide by a timetable for a Summary Judgment motion, or to seek an adjournment prior to the motion date, may be a reason to deny an adjournment. As noted by Myers, J. in Peticca v. Oracle Canada ULC, [2015] O.J. No. 1985, unless there are exceptional or extenuating circumstances, scheduling orders are mandatory, being no different than any other court order. [6]

[19] In determining whether to grant leave under r. 39.02, the Divisional Court has stated that: “A flexible, contextual approach is to be taken …, having regard to the overriding principle outlined in Rule 1.04 of the Rules of Civil Procedure that the rules are to be interpreted liberally to ensure a just, timely resolution of the dispute.” [7]

Analysis

[20] While it was permissible for the defendants to seek the evidence of a non-party, the evidence must be relevant for the purposes of the motion and they must act with reasonable diligence in obtaining the evidence. Subsequently, they may cross-examine the plaintiff. [8]

[21] The defendants made allegations in their statement of defence, dated September 1, 2023, that the real estate agent made the representations that were false (in the property listing), and that the agent declined the request for a viewing and insisted that an unconditional offer needed to be made prior to viewing the property. [9]

[22] The parties entered into a consent schedule endorsed by Bezaire, J. in February 2024, which included cross-examinations of the parties. The parties did not include the evidence of non-party witnesses.

[23] The defendants subsequently made the decision to obtain evidence from the real estate agents, which required them to wait to cross-examine the plaintiff on the agent relationship and representations made.

[24] The suggestion of obtaining the non-parties’ evidence was first raised on July 12, 2024, more than ten months after the defence was filed and only six days before the initial motion date.

[25] The defendants have not filed any evidence to show in what way cross-examinations on July 8, 2024 on their own evidence revealed new information making the evidence of the non-party real estate agents relevant to the issues on the motion.

[26] In my view, if the defendants felt that the evidence of the real estate agents were relevant to the matters in issue, they likely would have known of this from the time they entered their defence, almost one year ago.

[27] As well, the defendants have had the motion record since March 24, 2024, and were aware of the issues relating to the real estate agents involved in the representations, and the subsequent re-listing of the property, at least as at that date. They chose not to take steps to obtain the evidence until after the initial motion date was adjourned, in that the summons to witness was issued on July 26, 2024.

[28] The defendants did not seek a case conference to amend the timetable prior to the motion date, as required by Bezaire, J.’s order of February 9, 2024.

[29] I am not satisfied that the defendants acted with reasonable diligence to obtain the evidence of the non-parties or cross-examine the plaintiff in advance of the motion, contrary to rr. 39.02(3) and 39.03(3).

[30] In any event, I am not convinced that the evidence of the real estate agents is relevant on the motion, such that it is unjust to deny an adjournment.

[31] It is not disputed that the representations were made by the real estate agent, as stated by the defence. Whether and to what extent the representations were made is not an issue on this motion. For that reason, I reject the defendants’ argument that credibility as to the representations made is a relevant issue necessitating the evidence of the real estate agents.

[32] Furthermore, the defendants have not shown that the subsequent agent’s evidence on the re-listing of the property is relevant to mitigation. There is no evidence that there was impropriety in the re-listing either by the plaintiff or the agent. Indeed, the defendants agree that the sale price for the property was the market value at that time.

[33] Having regard to a flexible but contextual approach, I find that in the circumstances of this case, an adjournment is denied. Non-compensatory prejudice noted by the defendants is only one factor to consider in determining an adjournment.

Justice B.A. MacFarlane Date: September 9, 2024

Footnotes

[1] Endorsement of Bezaire, J. dated February 9, 2024.

[2] Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 39.03(5).

[3] Ontario Federation of Anglers & Hunters v. Ontario (Ministry of Natural Resources), [2002] O.J. No. 1445, at para. 30.

[4] Dietrich v. Home Hardware Stores Ltd., [2007] O.J. No. 213, at para. 7.

[5] Rules of Civil Procedure, rr. 39.02(3) – 39.03(3).

[6] Peticca v. Oracle Canada ULC, [2015] O.J. No. 1985, at paras. 3 – 7.

[7] Lockridge v. Ontario (Director, Ministry of the Environment) [2009] O.J. No. 4492, 258 O.A.C. 76, at para. 24, citing First Capital Reality Inc. v. Centrecorp Management Services Ltd. (2009), 258 O.A.C. 76 (Div. Ct.), at paras. 13 - 14.

[8] Rules of Civil Procedure, r. 39.02(2).

[9] Statement of Defence, paras. 5 – 7.