Toronto-Dominion Bank v. Hylton, 2010 ONCA 752

JudgeLaskin, Sharpe and Epstein, JJ.A.
CourtCourt of Appeal (Ontario)
Case DateSeptember 17, 2010
JurisdictionOntario
Citations2010 ONCA 752;(2010), 270 O.A.C. 98 (CA)

TD Bk. v. Hylton (2010), 270 O.A.C. 98 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. NO.014

The Toronto-Dominion Bank (plaintiff/respondent) v. Paul Hylton also known as Paul U Hylton (defendant/appellant)

(C51522; 2010 ONCA 752)

Indexed As: Toronto-Dominion Bank v. Hylton

Ontario Court of Appeal

Laskin, Sharpe and Epstein, JJ.A.

November 9, 2010.

Summary:

The plaintiff bank sued Hylton for money owed under three agreements for credit facilities. Hylton, self-represented, delivered a handwritten statement of defence. The bank moved for summary judgment. Hylton's brother appeared for him and obtained an adjournment because Hylton was ill. Two weeks later, Hylton's brother appeared again, asking for more time.

The Ontario Superior Court refused the adjournment and granted summary judgment for the bank. Hylton appealed and sought to adduce fresh evidence regarding both the reasons for the delay and his defence. Admitting that he was personally responsible for one of the debts, Hylton sought to set aside the summary judgment regarding the other two.

The Ontario Court of Appeal, having admitted the fresh evidence, allowed the appeal as to the two contested debts. The matter was remitted to the Superior Court without prejudice to the bank's right to proceed with its motion for summary judgment.

Courts - Topic 589

Judges - Duties - To self-represented party - The self-represented defendant's request for an adjournment of the plaintiff's motion for summary judgment was refused - The Ontario Court of Appeal allowed the defendant's appeal, stating "Against the backdrop of the nature of the proceeding and the parties to the proceeding, the court should consider the evidence and strength of the evidence of the reason for the adjournment request, the history of the matter including deliberate delay or misuse of the court process, the prejudice to the party resisting the adjournment and the consequences to the requesting party of refusing the request. ... [T]he fact that a party is self-represented is a relevant factor. That is not to say that a self-represented party is entitled to a 'pass'. However, as part of the court's obligation to ensure that all litigants have a fair opportunity to advance their positions, the court must assist self-represented parties so they can present their cases to the best of their abilities" - See paragraphs 38 and 39.

Practice - Topic 1002

Parties - Parties unrepresented by counsel - Duty of court - [See Courts - Topic 589 ].

Practice - Topic 5067

Conduct of trial - Adjournments - Circumstances when request for adjournment refused - The plaintiff bank sued Hylton for money owed under three agreements for credit facilities - Hylton, self-represented, delivered a hand-written statement of defence - The bank moved for summary judgment - Hylton's brother appeared for him and obtained an adjournment because Hylton was ill - Two weeks later, Hylton's brother appeared again, asking for more time - The brother offered to be responsible for court costs and promised that there would be no more adjournment requests - The motion judge refused the adjournment and granted summary judgment for the bank - Hylton appealed and sought to adduce fresh evidence regarding both the reasons for the delay and his defence - Admitting that he was personally responsible for one of the debts, Hylton sought to set aside the summary judgment regarding the other two - The Ontario Court of Appeal, having admitted the fresh evidence, allowed the appeal as to the two contested debts - The motion judge erred in refusing the adjournment request which was for valid personal reasons - The fact that Hylton was self-represented was a relevant factor - However, the only factor that the motion judge appeared to have considered was Hylton's inability to defend the motion - An adjournment in order to file defence material could not legitimately be refused on the sole basis that there was no defence - See paragraphs 35 to 42.

Practice - Topic 5068.1

Conduct of trial - Adjournments - Because of illness of party - [See Practice - Topic 5067 ].

Practice - Topic 5068.2

Conduct of trial - Adjournments - Self-represented litigants (incl. adjournment to consult counsel) - [See Courts - Topic 589 and Practice - Topic 5067 ].

Practice - Topic 5075

Conduct of trial - Adjournments - Review of decision to refuse adjournment - [See Practice - Topic 5067 ].

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" or "fresh evidence" - The plaintiff bank sued Hylton for money owed under three agreements for credit facilities - Hylton, self-represented, delivered a handwritten statement of defence - The bank moved for summary judgment - Hylton's brother appeared for him and obtained an adjournment because Hylton was ill - Two weeks later, Hylton's brother appeared again, asking for more time - The brother offered to be responsible for court costs and promised that there would be no more adjournment requests - The motion judge refused the adjournment and granted summary judgment for the bank - Hylton appealed and sought to adduce fresh evidence regarding both the reasons for the delay and his defence - The Ontario Court of Appeal granted the motion to adduce fresh evidence - Regarding delay in responding to the summary judgment motion, Hylton was unable to prepare his defence materials due to serious personal circumstances which were described in the proposed fresh evidence - The fresh evidence pertaining to the debts, which brought into question Hylton's personal responsibility, might reasonably have affected the motion judge's decision - The fact that this evidence existed when the summary judgment motion was heard was not sufficient, on its own, to establish a lack of due diligence - Self-representation was also a relevant factor in the consideration of whether the due diligent test was met - The existence of Hylton's serious personal circumstances meant that he had not failed to exercise due diligence - The evidence should be admitted - See paragraphs 17 to 34.

Cases Noticed:

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 20].

R. v. 1275729 Ontario Inc. et al. (2005), 205 O.A.C. 359; 203 C.C.C.(3d) 501 (C.A.), refd to. [para. 25].

Khimji v. Dhanani (2004), 182 O.A.C. 142; 69 O.R.(3d) 790 (C.A.), refd to. [para. 36].

Kainz v. Potter, [2006] O.T.C. 525; 33 R.F.L.(6th) 62 (Sup. Ct.), refd to. [para. 39].

Counsel:

Sidney Klotz, for the appellant;

Dennis Touesnard, for the respondent.

This motion and appeal were heard on September 17, 2010, by Laskin, Sharpe and Epstein, JJ.A., of the Ontario Court of Appeal. On November 9, 2010, the court's judgment was released with the following opinions:

Epstein, J.A. (Laskin, J.A., concurring) - see paragraphs 1 to 44;

Sharpe, J.A., concurring - see paragraphs 45 to 50.

To continue reading

Request your trial
54 practice notes
  • D.M. v. The Children__s Aid Society of Ottawa, 2021 ONSC 8360
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • December 20, 2021
    ...416; XE "para:N1411D:MsoFootnoteText" R. v. Sheppard, [2002] 1 S.C.R. 869 at para. 24. [79] Toronto-Dominion Bank v. Hylton, 2010 ONCA 752; Graham v. Vandersoot (Vandersloot), 2012 ONCA 60; XE "para:N165D2:MsoFootnoteText" Khimji v. Dhanani (2004), 69 O.R. (3d) 790 (C.A.......
  • Evidence; procedure; costs
    • Canada
    • Irwin Books Archive Child Support Guidelines in Canada, 2020
    • June 23, 2019
    ...how long counsel has known of the issue to which the amendment is aimed and whether counsel has had previous opportunities to amend; 112 2010 ONCA 752 at para 38. 113 2009 ONCA 484 at para 37. See also Embree v Embree, 2016 NBCA 42 (spousal support); Smart v Smart, 2014 ONSC 4464. 114 2018 ......
  • Evidence; Procedure; Costs
    • Canada
    • Irwin Books Child Support Guidelines in Canada, 2022
    • July 27, 2022
    ...decide cases on their merits; 117 118 119 120 121 SO 1996, c 31. Chickee v Chickee, [2000] OJ No 2769 (SCJ). SB-B v BJS, 2020 NBCA 9. 2010 ONCA 752 at para 2009 ONCA 484 at para 37. See also Embree v Embree, 2016 NBCA 42 (spousal support); Smart v Smart, 2014 ONSC 4464. 122 2018 NUCJ 10 at ......
  • Evidence; procedure; costs
    • Canada
    • Irwin Books Archive Child Support Guidelines in Canada, 2017
    • August 29, 2017
    ...106 R.R.O. 1990, Reg. 194 ( Courts of Justice Act ). 107 S.O. 1996, c. 31. 108 Chickee v. Chickee , [2000] O.J. No. 2769 (S.C.J.). 109 2010 ONCA 752 at para. 38. 570 CHILD SUPPORT GUIDELINES IN CANADA, 2017 proceed on the scheduled date, and the length of the requested adjournment should al......
  • Request a trial to view additional results
41 cases
  • D.M. v. The Children__s Aid Society of Ottawa, 2021 ONSC 8360
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • December 20, 2021
    ...416; XE "para:N1411D:MsoFootnoteText" R. v. Sheppard, [2002] 1 S.C.R. 869 at para. 24. [79] Toronto-Dominion Bank v. Hylton, 2010 ONCA 752; Graham v. Vandersoot (Vandersloot), 2012 ONCA 60; XE "para:N165D2:MsoFootnoteText" Khimji v. Dhanani (2004), 69 O.R. (3d) 790 (C.A.......
  • Audmax Inc. et al. v. Human Rights Tribunal (Ont.) et al., (2011) 273 O.A.C. 345 (DC)
    • Canada
    • Ontario Superior Court of Justice of Ontario (Canada)
    • October 20, 2010
    ...v. Human Rights Commission (Ont.) (2007), 231 O.A.C. 58 (Div. Ct.), refd to. [para. 33, footnote 17]. Toronto-Dominion Bank v. Hylton (2010), 270 O.A.C. 98; 2010 ONCA 752, refd to. [para. 38, footnote Kainz v. Potter, [2006] O.T.C. 525; 33 R.F.L.(6th) 62 (Sup. Ct.), refd to. [para. 39, foot......
  • The College of Pharmacists of Manitoba v Jorgenson, 2020 MBCA 80
    • Canada
    • Court of Appeal (Manitoba)
    • August 24, 2020
    ...of justice with the objective of minimising prejudice to the parties and the system itself (see Toronto-Dominion Bank v Hylton, 2010 ONCA 752 at para 36; and Moore v Darlington, 2012 NSCA 68 at para 51). [5] To that end, a number of circumstances are noteworthy. While the defendant is self-......
  • Odede v. Tartaro, 2021 ONSC 1845
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • March 11, 2021
    ...in dispute” and the resolution of cases on their merits. [20] Khimji was considered by this court in Toronto-Dominion Bank v. Hylton, 2010 ONCA 752, which adopted the above statement. This court observed, at para. 36, that “[t]he presiding judge has a well-placed and a well-established disc......
  • Request a trial to view additional results
3 firm's commentaries
  • Court Of Appeal Summaries (October 17 ' 21, 2022)
    • Canada
    • Mondaq Canada
    • October 25, 2022
    ...Civil Procedure, Adjournments, Corroborating Evidence, Evidence Act, R.S.O. 1990, c. E. 23, s. 13, Toronto Dominion Bank v. Kylton, 2010 ONCA 752, Khimji v. Dhanani (2004), 69 O.R. (3d) 790 Hategan v. Frederiksen, 2022 ONCA 715 Keywords: Civil Procedure, Security for Costs Rebello v. Del Pr......
  • COURT OF APPEAL SUMMARIES (JUNE 7 ' 11)
    • Canada
    • Mondaq Canada
    • June 17, 2021
    ...Civil Procedure, Summary Judgment, Adjournments, Khimji v. Dhanani (2004), 69 O.R. (3d) 790 (C.A.), Toronto-Dominion Bank v. Hylton, 2010 ONCA 752 Short Civil Decisions Manicom v. Manicom, 2021 ONCA 399 Keywords: Family Law, Corporations, Contracts, Share Purchase Agreements, Restrictive Co......
  • Court Of Appeal Summaries (August 31 ' September 4, 2020)
    • Canada
    • Mondaq Canada
    • September 8, 2020
    ...Procedural and Natural Justice, Adjournments, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134, Toronto-Dominion Bank v. Hylton, 2010 ONCA 752 facts: This was an appeal from a judgment following a family law in which the trial judge ordered spousal and child support, an equalization paym......
4 books & journal articles
  • Evidence; procedure; costs
    • Canada
    • Irwin Books Archive Child Support Guidelines in Canada, 2020
    • June 23, 2019
    ...how long counsel has known of the issue to which the amendment is aimed and whether counsel has had previous opportunities to amend; 112 2010 ONCA 752 at para 38. 113 2009 ONCA 484 at para 37. See also Embree v Embree, 2016 NBCA 42 (spousal support); Smart v Smart, 2014 ONSC 4464. 114 2018 ......
  • Evidence; Procedure; Costs
    • Canada
    • Irwin Books Child Support Guidelines in Canada, 2022
    • July 27, 2022
    ...decide cases on their merits; 117 118 119 120 121 SO 1996, c 31. Chickee v Chickee, [2000] OJ No 2769 (SCJ). SB-B v BJS, 2020 NBCA 9. 2010 ONCA 752 at para 2009 ONCA 484 at para 37. See also Embree v Embree, 2016 NBCA 42 (spousal support); Smart v Smart, 2014 ONSC 4464. 122 2018 NUCJ 10 at ......
  • Evidence; procedure; costs
    • Canada
    • Irwin Books Archive Child Support Guidelines in Canada, 2017
    • August 29, 2017
    ...106 R.R.O. 1990, Reg. 194 ( Courts of Justice Act ). 107 S.O. 1996, c. 31. 108 Chickee v. Chickee , [2000] O.J. No. 2769 (S.C.J.). 109 2010 ONCA 752 at para. 38. 570 CHILD SUPPORT GUIDELINES IN CANADA, 2017 proceed on the scheduled date, and the length of the requested adjournment should al......
  • Evidence; procedure; costs
    • Canada
    • Irwin Books Archive Child Support Guidelines in Canada, 2015
    • August 29, 2021
    ...appearance before another court and the application to vary could be handled with ease by another solicitor from the same office. 112 106 2010 ONCA 752 at para. 38. 107 2009 ONCA 484 at para. 37. See also Smart v. Smart , 2014 ONSC 4464. 108 Anderson v. Anderson (1987), 11 R.F.L. (3d) 260 (......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT