



COURT OF APPEAL FOR ONTARIO

CITATION: Bank of Montreal v. Cadogan, 2021 ONCA 405

DATE: 20210608

DOCKET: C68958

Rouleau, Hoy and van Rensburg JJ.A.

BETWEEN

Bank of Montreal

Plaintiff (Respondent)

and

Granville Cadogan, also known as Granville Nolley Cadogan also known as
Granville N. Cadogan

Defendant (Appellant)

Granville Cadogan, acting in person

Ron Aisenberg, for the respondent

Heard: June 4, 2021 by video conference

On appeal from the judgment of Justice David E. Harris of
    the Superior Court of Justice, dated November 19, 2020, with reasons reported
    at 2020 ONSC 7102.

REASONS FOR DECISION

[1]

This appeal was dismissed with reasons to
    follow. These are our reasons.

[2]

The respondent bank commenced an action for
    damages against the appellant, who is a lawyer. The respondent alleged that the
    appellant made a knowingly false law statement under Ontarios electronic
    land registration system, when he stated, in respect of a writ of seizure and
    sale the bank had registered against the property of the appellants client,
    Ms. Watkis, that [a] complete, unconditional and unqualified release from the
    judgment creditor for this writ has been obtained. The motion judge granted summary
    judgment in favour of the respondent for $63,494.04, plus $20,000 in punitive
    damages.

[3]

The appellant raises a number of arguments on
    appeal.

[4]

First, he submits that the motion judge erred in
    refusing an adjournment of the summary judgment motion, and then in refusing to
    permit his counsel to participate in the hearing. We do not give effect to this
    argument.

[5]

The appellant did not appear at the virtual
    hearing of the motion. Instead, a lawyer appeared on his behalf by audio only.
    The lawyer had no instructions other than to obtain an adjournment. She
    reported that the appellant was sick and could not attend. She said that she
    had been retained during the emergency measures.

[6]

Counsel for the respondent advised that he had
    received an email late the night before from a different lawyer who stated he
    had been retained by the appellant, and who had paid an outstanding costs
    award. That lawyer did not appear at the motion. The respondents lawyer also
    referred the motion judge to an unrelated matter involving the appellant in
    which the Law Society was dealing with a similar request for an adjournment
    which was denied.

[7]

The motion judge determined that the appellants
    request for an adjournment followed a pattern of obfuscation and attempting to
    put off his day of reckoning. The summary judgment motion had already been
    adjourned peremptory to the appellant eight months earlier, when the appellant
    served an affidavit from his former client the night before the hearing. The
    endorsement specified that no further adjournments would be permitted. The
    appellants lawyer was exceedingly vague about when she had been retained,
    she had not been in touch with the appellant recently, and she had no
    instructions other than to obtain an adjournment. There was no documentary
    support for the illness excuse, which would have been simple enough to obtain
    if it were true.

[8]

Whether to grant an adjournment in a civil
    proceeding is a highly discretionary decision, and the scope for appellate
    intervention is limited:
Khimji v. Dhanani
(2004), 69 O.R. (3d) 790
    (C.A.), at para. 14 (per Laskin J.A., dissenting, but not on this point). The
    inquiry on appeal must focus on whether the court below took account of
    relevant considerations in balancing the competing interests and made a decision
    that was in keeping with the interests of justice:
Toronto-Dominion Bank v.
    Hylton
, 2010 ONCA 752, 270 O.A.C. 98, at para. 37.

[9]

The appellant, although asserting that the
    adjournment was unreasonably refused, has not pointed to any circumstance that
    the motion judge failed to consider. Nor does the appellants reference on
    appeal to the pandemic provide an excuse for his non-attendance at the virtual
    hearing. There is no basis to interfere with the motion judges decision to
    refuse an adjournment in this case. He considered all of the relevant factors
    and he reasonably concluded that to grant an adjournment in the circumstances
    would permit an abuse of the courts process.

[10]

Nor would we accept the appellants fresh
    evidence on this issue. He has provided a note from a doctor, dated September
    1, 2020, that states that he treated the appellant for a bout of severe pain on
    August 2, 2020. There is no explanation for why this note, which is dated a day
    before the motion date, was not produced at the time (other than a bald
    statement that the appellant was unable to get a copy of the note to his
    counsel). In any event, the note does not explain the appellants absence from
    court on the day of the motion, one month after he had seen the doctor, and in
    the circumstances would not have affected the decision to refuse an
    adjournment.

[11]

As for the argument that the motion judge
    refused to allow the appellants counsel to participate, there is simply no
    basis for this contention. The appellants counsel made it clear she had been
    retained only to request the adjournment, that she was not prepared to argue
    the motion, and indeed she left the virtual hearing after the adjournment was
    denied.

[12]

The appellants second argument is that the
    motion judge proceeded on an evidentiary record that was incomplete and
    deficient. We disagree. None of the arguments about alleged deficiencies that
    the appellant seeks to raise on appeal related to redacted documents, missing
    materials, lack of personal knowledge, business records and the like, have
    merit. There was no missing evidence, nor was evidence ignored.

[13]

The respondent filed evidence consisting of
    three affidavits and 21 exhibits. It is too late for the appellant to submit
    evidence now, or to argue that certain documents should have been produced by
    the respondent. The appellant did not serve an affidavit of documents or
    produce any documents. Although the motion for summary judgment was outstanding
    for some time, the only evidence the appellant submitted in response to the
    motion was the affidavit of his client, Ms. Watkis, which was considered
    by the motion judge. The motion judge explained why he rejected Ms. Watkiss
    assertion that she had settled the banks judgment for $29,000, after pointing
    out the many inconsistencies in the affidavit, and why he accepted the
    respondents evidence to the contrary.

[14]

Even if there had been a settlement, it clearly
    had not been performed, as by her own account, Ms. Watkis had only paid $6,200
    to the respondent in respect of the outstanding writ. The issue before the
    motion judge was whether the appellant knowingly made a false statement that [a]
    complete, unconditional and unqualified release from the judgment creditor for
    this writ has been obtained.

[15]

The appellants own conduct was inconsistent
    with any belief that there was a release, or that any settlement had
    occurred. Rather, the appellant had contacted the respondent and its counsel on
    two occasions shortly before the transfer of Ms. Watkiss property, and on
    three occasions within weeks thereafter, regarding a payout statement or
    reducing the payout amount of the writ. As the motion judge noted, the
    appellant made no mention of anything remotely like a settlement between Ms.
    Watkis and the bank. Indeed, after the placement of the law statement on the
    registry and the transfer of the real property he sent a letter to the banks
    counsel, asking for an accounting to substantiate the amount that was required
    to remove the writ.

[16]

The motion judges conclusion that the
    appellants law statement on the electronic registry was false and must have
    been known by him to be false was fully supported by the evidence. The
    appellant has not demonstrated any reason to interfere with the judgment under
    appeal.

[17]

For these reasons, the appeal was dismissed.
    Costs to the respondent fixed at $6,650, inclusive of HST and disbursements.

Paul
    Rouleau J.A.

Alexandra
    Hoy J.A.

K. van Rensburg J.A.


