



COURT OF APPEAL FOR ONTARIO

CITATION: Dhatt v. Beer, 2021 ONCA 137

DATE: 20210304

DOCKET:
C68375 and
    C68539

Strathy C.J.O., Brown and Miller
    JJ.A.

BETWEEN

Mandeep Dhatt and Kulwinder
    Dhatt

Plaintiffs (Respondents)

and

Derek Beer and Indira Beer

Defendants (Appellants)

and

Jay Brijpaul and Re/Max West
    Realty Inc., Brokerage

Third Parties (Respondents)

David P. Lees and Zachary Silverberg,
    for the appellants

Arnie Herschorn, for the respondents,
    Mandeep Dhatt and Kulwinder Dhatt

Serena L. Rosenberg, for the respondents,
    Jay Brijpaul and Re/Max West Realty Inc.

Heard: February 10, 2021 by video conference

On appeal from the judgment and order of
    Justice Carole J. Brown of the Superior Court of Justice, dated May 1, 2020 and
    July 30, 2020, respectively, with reasons for judgment reported at 2020 ONSC
    2729.

BROWN J.A.:


I.        OVERVIEW

[1]

This appeal raises two main issues. First, did
    the trial judge unreasonably exercise her discretion by refusing the requests
    of the appellants, Derek Beer and Indira Beer, to adjourn the trial? Second,
    did the trial judge err in granting the respondents, Mandeep Dhatt and
    Kulwinder Dhatt, specific performance of the January 22, 2016 agreement of
    purchase and sale to buy the Beers Brampton residential property (the
    Agreement)?

[2]

When the Beers refused to close the Agreement,
    the Dhatts sued for specific performance. The Beers defended, pleading that the
    Agreement was invalid. They brought a third party claim against their real
    estate agent, Jay Brijpaul, and his brokerage, Re/Max West Realty Inc.,
    Brokerage (the Re/Max Third Parties).

[3]

By judgment dated May 1, 2020 (the Judgment),
    the trial judge granted the Dhatts specific performance and dismissed the third
    party claim. By order dated July 30, 2020, the trial judge appointed a lawyer
    to act for the Beers and close the transaction (the Transaction Order).

[4]

The Beers appeal both the Judgment and the
    Transaction Order.

[5]

By order dated August 28, 2020, Zarnett J.A.
    refused to stay the Judgment and Transaction Order pending appeal:
Dhatt v.
    Beer,
2020 ONCA 545, 449 D.L.R. (4th) 263. As a result, the Dhatts took
    possession of the property in September 2020, but the closing of the
    transaction awaits the disposition of these appeals.

[6]

The Beers raise three grounds of appeal, arguing
    that the trial judge erred

in:

(i)

refusing to grant them an adjournment of the
    trial;

(ii)

granting the Dhatts specific performance; and

(iii)

awarding substantial indemnity costs against them.

[7]

For the reasons set out below, I would dismiss
    the appeal.

II.       FIRST
    GROUND OF APPEAL: THE REFUSAL TO ADJOURN THE TRIAL

[8]

The Beers submit that the trial judge failed to
    exercise her discretion judicially by refusing their request for an adjournment
    on the first day of trial and refusing their subsequent requests for an
    adjournment on medical grounds.

[9]

I see no error by the trial judge in exercising
    her discretion that would merit appellate intervention.

A.

The governing principles

[10]

A judge may postpone or adjourn a civil trial to
    such time and place, and on such terms, as are just:
Rules of Civil
    Procedure
, r. 52.02. The principles governing a trial judges exercise of
    that discretion were set out in the majority and dissenting reasons in
Khimji v. Dhanani

(2004),
    69 O.R. (3d) 790 (C.A.). Both must be read together. In his dissent, Laskin
    J.A. summarized several of the main principles, at para. 14:

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.

The majority, Doherty and Catzman
    JJ.A., added a further factor stating, at para. 27:

I have had the privilege of reading the lucid
    reasons of Laskin J.A. I adopt his summary of the facts and his statement of
    the principles governing this appeal. I would only add that in determining
    whether to grant an adjournment in this case, the trial judge had to consider
    not only the orderly processing of civil trials, but the need to effectively
    enforce court orders. I think the refusal of the adjournment in this case was
    justified principally because the appellant all but ignored the order of the
    court made in November. He made virtually no attempt to retain a lawyer who
    could act for him on the scheduled trial date, or to pay even part of the costs
    order made against him.
[1]

[11]

Those general principles must be applied with a
    stance of deference to the front-line trial judge. As stated by the majority in
Khimji
, at para. 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.

[12]

Since
Khimji
was decided in 2004, an
    increasing degree of pre-trial case management has been applied to civil
    actions in the Superior Court of Justice. One object of the pre-trial case
    management process is to ensure that parties meet the trial date set for their
    action.

[13]

The trial of the present action was subject to
    the Toronto Regions Consolidated Practice Direction for Civil Actions,
    Applications, Motions and Procedural Matters in the Toronto Region, (July 1,
    2015). Section 71 deals with trial dates, stating that: Once trial dates are
    set, there will be no adjournments of the trial
except in
    extenuating and exceptional circumstances
. [Emphasis added.]

B.

The refusal of the adjournment request on the
    first day of trial

The issue stated

[14]

The Beers had been represented by counsel until
    April 2018, when their lawyer got off the record due to non-payment of
    accounts. At a November 2018 Trial Scheduling Court, Mr. Beer stated that he
    would retain counsel.

[15]

The matter was put over to the January 2019
    Trial Scheduling Court. At that time, Mr. Beer advised that the defendants had
    not retained counsel. Nor had they filed the third party record as they had
    been ordered to do in November 2018. The presiding judge scheduled the 10-day
    trial for March 2, 2020 and ordered the third party record to be filed within
    60 days. The Beers failed to do so.

[16]

At a December 2019 pre-trial conference, the Beers
    were ordered to: (i) file the third party record by years end; (ii) advise by
    January 6, 2020 whether they planned to retain counsel and, if so, who; and
    (iii) provide a list of their witnesses by that date. The Beers did not comply
    with those orders.

[17]

A week before the trial was to start, the Beers
    retained a lawyer with the limited mandate of requesting an adjournment of the
    trial (the Adjournment Counsel). That lawyer appeared on the first day of the
    trial. Adjournment Counsel explained his limited mandate and made it clear that
    even if an adjournment was granted, the Beers would likely be representing
    themselves.

[18]

The main ground advanced for an adjournment was
    that the Beers former lawyer had been asserting a solicitors lien over the
    file and its documents for the better part of two years, as a result of which the
    Beers had few relevant documents. The former lawyer had obtained judgment for
    the amount due under the accounts. Adjournment Counsel informed the court that
    the Beers could not pay their former lawyer.

[19]

At the same time, Adjournment Counsel advised
    that another lawyer of the Beers, who had acted for them in the enforcement
    proceedings brought by their former lawyer, also had some documents but he had
    not been able to reach that lawyer.

[20]

Adjournment Counsel requested an adjournment
    until the Beers had dealt with the matters involving their former lawyer,
    including a pending sheriffs sale of the Brampton property in satisfaction of
    their former lawyers judgment. Adjournment Counsels instructions only permitted
    him to advise the court that the Beers were willing and able to cooperate in
    scheduling new dates for the trial. In essence, the Beers were requesting an
    indefinite adjournment to no fixed date.

[21]

The adjournment was opposed by the Dhatts and
    the Re/Max Third Parties, especially given the failure of the Beers to propose
    a definite date for the resumption of the trial. The trial judge refused to
    grant an adjournment, stating in her ruling:

Not until last week did [the Beers] retain
    counsel, but only for the limited purpose of seeking an adjournment. Even were
    an adjournment granted, the situation would ultimately be the same, namely that
    the defendants would be self-represented.

The defendants have known for two years that
    they should retain counsel but did so only at the very last moment and only for
    the limited purpose of seeking an adjournment.

I am not satisfied that in all of the
    circumstances, an adjournment should be granted. The trial will proceed.

[22]

Given the representation by Adjournment Counsel
    that the Beers lacked the documents needed for the trial, the trial judge ordered
    that the plaintiff and third party provide their briefs of documents to the
    defendants by the end of the day today. We will proceed with the trial tomorrow
    at 11 AM.

Analysis

[23]

The Beers submit that the trial judge erred in
    refusing to grant their request for an adjournment on the first day of trial
    for two reasons. First, it was only their first request for an adjournment. Second,
    the Beers were self-represented and the denial of an adjournment was
    inconsistent with the trial judges duty to self-represented litigants to
    acquaint them with courtroom procedure and the rules of evidence so that they
    received a fair trial:
Morwald-Benevides v. Benevides
, 2019 ONCA 1023,
    148 O.R. (3d) 305, at para. 34.

[24]

I see no merit in either submission.

[25]

If at some time in the past there was a sense
    that a party had some sort of presumptive entitlement to one adjournment of a
    set trial date, those days are long gone. As the Toronto Region Practice
    Direction clearly states, once a trial date is set, there will be no
    adjournment of the trial except in extenuating and exceptional circumstances.
    The responsibility squarely falls on the party requesting an adjournment of a
    set trial date to demonstrate extenuating and exceptional circumstances.

[26]

Second, although a trial judge does have a duty
    to ensure self-represented parties receive a fair trial, as pointed out by the
    majority in
Khimji
a self-represented litigants refusal to comply
    with pre-trial orders and failure to use time granted by the court to find a
    lawyer, may weigh heavily against that litigants request for an adjournment of
    a set trial date.

[27]

As well, the Canadian Judicial Councils 2006
Statement
    of Principles on Self-represented Litigants and Accused Persons
, endorsed
    by the Supreme Court of Canada in
Pintea v. Johns
, 2017 SCC 23, [2017]
    1 S.C.R. 470, at para. 4, states, at p. 9, that self-represented persons are
    expected to familiarize themselves with the relevant legal practices and
    procedures pertaining to their case and respect the court process. The
Statement
notes that judges have no obligation to assist a self-represented person who
    makes no reasonable effort to prepare their own case: at p. 6, Section C,
    Principle 4.

[28]

Further, the following statement by the majority
    of this court in
Khimji
,

at para. 35, applies equally to
    parties represented by counsel and those who are self-represented:

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.

[29]

In the present case, the Beers had been given
    lengthy advance notice of the trial date and ample time to retain a lawyer;
    they had the better part of two years to make arrangements to obtain relevant
    trial documents from opposing counsel; the action had been marked peremptory to
    the Beers; the Beers retained a lawyer at the last minute only for the limited
    purpose of seeking an adjournment of the trial date; they did not propose a new
    trial date; they failed to comply with the orders of the court to file a third
    party record and deliver a list of witnesses; and they made no reasonable
    effort to prepare their case. Given those facts, I see absolutely no error in
    the trial judges refusal to grant the Beers request for an adjournment on the
    first day of trial.

C.

The refusal to grant further adjournment
    requests

The issue stated

[30]

On subsequent trial days further adjournment
    requests by the Beers ensued, this time based on their medical conditions.

[31]

When the trial resumed on March 3, 2020, the
    Beers attended; their Adjournment Counsel did not. Although opposing counsel
    had provided them with the documents ordered by the trial judge, the Beers did
    not bring them to the trial. Mrs. Beer informed the court that she had a
    four-hour medical appointment scheduled for the following morning at a
    hospital. When the trial judge sought further details about the matter, Mrs.
    Beer advised that she was getting a panic attack.  As the discussion
    continued, Mrs. Beer initially advised that she would call the hospital and
    cancel the appointment, then stated she would keep the appointment, miss the
    second day of trial, leaving matters to her co-defendant husband.

[32]

The trial judge next asked plaintiffs counsel
    to begin his opening submissions. Thereupon Mrs. Beer began to make noises,
    which prevented the trial judge from hearing the submissions. Mrs. Beer left
    the courtroom with her husband and requested an ambulance. One came, and Mrs.
    Beer and her husband went with the paramedics. A brief recess was taken. On the
    resumption of court, counsel for the Re/Max Third Parties informed the trial
    judge that she understood from the Beers former lawyer this exact thing had
    happened at a judgment debtor examination conducted by the former counsel. The
    trial judge asked counsel to contact the Beers to advise that the trial would
    resume the following day at 10:00 a.m.

[33]

Upon the resumption of the trial on the third
    day, March 4, 2020, the Beers were not present. Counsel for the Re/Max Third
    Parties had received a text from Mr. Beer stating that he was not feeling well,
    was stressed out, and could not attend. The court and counsel had received some
    notes from the Beers about the previous days trip to a hospital emergency ward
    where both had been examined and discharged. The diagnosis for Mrs. Beer was
    anxiety; for her husband, a psychosocial problem. After hearing submissions
    from counsel, the trial judge took a brief recess. Upon resuming, the trial
    judge gave oral reasons in which she reviewed the events and the medical
    information. She directed that the trial proceed, concluding that the Beers
    were attempting to delay the trial further. The Dhatts counsel completed his
    opening submission.

[34]

Following a recess, the trial judge
    re-considered her decision. She did not proceed to hear the Dhatts first
    witness. Instead, she arranged for her ruling to be sent to the Beers, together
    with a direction that they attend at court the following morning when the trial
    would proceed, with or without them.

[35]

The trial resumed on the fourth day, March 5,
    2020. Mrs. Beer attended; Mr. Beer did not. Mrs. Beer informed the court of
    four things. First, she had received the trial judges endorsement of the
    previous day but did not read it. Second, her husband was not well. Third, she
    took the position that her husbands name was not on the house and she did
    not trust him to make any decision. In fact, the Beers owned the house as
    co-tenants. Finally, she presented a doctors note that stated Mrs. Beer was
    experiencing worsening anxiety related to recent legal proceedings and was
    not in the state of mind to proceed with further legal proceedings right now,
    until she is deemed better prepared.

[36]

After considering the materials, the trial judge
    delivered oral reasons directing that the trial proceed. While acknowledging
    that Mrs. Beer was experiencing anxiety due to the legal proceeding, she
    observed that was very common for many participants. She repeated that the
    Beers had attempted on many occasions to delay the proceedings, and then
    stated:

The trial will proceed. There is no justification
    or explanation for the defendants not to be present. Mr. Beer cannot be told by
    his wife not to be present at trial for the reason she has given. There is no
    justification and no evidence to support his not being present. As a result, I
    order that this trial proceed. Mrs. Beer is here now, if she wishes to stay. If
    not, and she's already told her husband apparently not to be present, so that
    he is not here either. But we will proceed with the trial today.

[37]

Mrs. Beer thereupon repeated her request for
    time to get a lawyer. The trial judge refused. Mrs. Beer left the courtroom, and
    the trial proceeded in the absence of the Beers.

Analysis

[38]

On appeal, the Beers submit that their medical
    circumstances on the second, third, and fourth days of the trial were
    extenuating and exceptional, and the trial judge erred by failing to grant them
    an adjournment.

[39]

I am not persuaded by that submission. As revealed
    by the events of those days as described above, the trial judge proceeded in a
    measured way, affording the Beers fair opportunities over the course of three
    days to explain their situation. The trial judges endorsements disclose that
    she reviewed all the medical documentation provided by the Beers and took that
    information into account when assessing the interests of all parties to the
    proceeding. I see no basis for appellate intervention in the circumstances.

III.      SECOND
    GROUND OF APPEAL: THE GRANT OF SPECIFIC PERFORMANCE

[40]

The Beers submit that the trial judge erred in
    granting the extraordinary remedy of specific performance. They contend that
    the characteristics of the property did not make it unique and the Dhatts
    losses could be quantified and remedied by an award of damages.

[41]

I do not accept that submission.

[42]

To describe the remedy of specific performance
    as an extraordinary remedy is a misdescription. In determining whether to
    grant specific performance, the fundamental question is whether the plaintiff
    has shown that the land rather than its monetary equivalent better serves
    justice between the parties:
Lucas v. 1858793 Ontario Inc. (Howard Park)
,
    2021 ONCA 52, at para. 70, quoting, with approval, Lax J. in
John E. Dodge
    Holdings Ltd. v. 805062 Ontario Ltd.
(2001), 56 O.R. (3d) 341 (S.C.), at
    para. 55, affd (2003) 63 O.R. (3d) 304 (C.A.), leave to appeal refused, [2003]
    S.C.C.A. No. 145. As stated by this court in
Lucas
at para. 71:

Whether specific performance is to be awarded
    or not is therefore a question that is rooted firmly in the facts of an
    individual case  In determining whether a plaintiff has shown that the land
    rather than its monetary equivalent better serves justice between the parties,
    courts typically examine and weigh together three factors: (i) the nature of
    the property involved; (ii) the related question of the inadequacy of damages
    as a remedy; and (iii) the behaviour of the parties, having regard to the
    equitable nature of the remedy  Whether a property is unique, either by virtue
    of its nature or the features of the contract for its purchase and sale,
    operates as only one of several factors a court must consider when determining
    entitlement to specific performance. [Citations omitted.]

[43]

The trial judge identified and applied the
    governing principles. Her conclusion, at paras. 39 and 40, that the Dhatts had
    demonstrated that the property possessed unique qualities was fully supported
    by the evidence. As was her finding that damages would not be an adequate
    remedy in the circumstances given the evidence that the Beers lacked sufficient
    funds to pay a damages award: at paras. 43-46.

[44]

Accordingly, I see no basis to interfere with
    the trial judges grant of specific performance.

IV.     THIRD
    GROUND OF APPEAL: THE AWARD OF SUBSTANTIAL INDEMNITY COSTS

[45]

As their final ground of appeal, the Beers
    submit that the trial judge erred in awarding substantial indemnity costs to
    the Dhatts ($112,347.63) and the Re/Max Third Parties ($88,178.52). The Beers
    submit that the trial judge did not provide any reasons, with the result that
    the costs should be reduced to the partial indemnity level.

[46]

I do not accept this submission. The trial judge
    explained, at paras. 54-56, why she awarded costs on a substantial indemnity
    basis: (i) the Beers attempted to delay or prolong the proceeding, to the point
    of failing to attend the trial despite being ordered to do so; and (ii) the
    Beers failure to close the transaction and failure to appear at trial were
    without justification and egregious.

[47]

The trial judge relied mainly on the litigation
    misconduct of the Beers in awarding costs on the elevated scale of substantial
    indemnity. I see no error in principle by the trial judge nor were the
    resulting cost awards unreasonable in the circumstances.

V.      DISPOSITION

[48]

For the reasons set out above, I would dismiss
    the appeal.

[49]

If the parties are
    unable to agree on the costs of the appeal, they may submit brief cost
    submissions (not to exceed three pages) within 10 days of the release of these
    reasons.

Released: March 4, 2021 G.R.S.

David
    Brown J.A.

I
    agree. G.R. Strathy C.J.O.

I
    agree. B.W. Miller J.A.





[1]
A
    helpful summary of the specific factors a trial judge should take into account
    when faced with an adjournment request can be found in
Trade Capital Finance
    Corp. v. Cook
, 2016 ONSC 3511, at paras. 8-11.


