Toronto-Dominion Bank v. Hylton, 2010 ONCA 752

• Judge: Laskin, Sharpe and Epstein, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: Friday September 17, 2010
• Jurisdiction: Ontario
• Citations: 2010 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.