I recently read the decision in Lima v. Ventura (Estate of), 2020 ONSC 3278, a case heard by the Ontario Superior Court of Justice in writing on May 27, 2020. The decision of the Honourable Justice Emery affirms previously established principles with respect to compliance with Court Orders, and further outlines the analysis to be undertaken when a party seeks to extend timelines during the COVID-19 pandemic. This is decision is particularly relevant in the estate litigation context as it arises from an estate dispute between three siblings who were named estate trustees in their late mother’s will.
The siblings’ names are Carmelinda Ventura De Jesus, Eduarda Ventura Lima, and Antonio Manuel Oliviera Lima (“Antonio”). Their mother, Maria Eduarda de Oliviera Bernardo Ventura (“Maria”) died on December 27, 2018.
The main property of the Estate was Maria’s home located at 1371 Ogden Avenue in Mississauga, Ontario (“Ogden”). Antonio and his family had been residing at Ogden since 2012. His sisters brought an Application on behalf of the Estate to sell Ogden.
An Order was made on consent on February 6, 2020 by the Honourable Justice Trimble (the “Trimble Order”), setting out, inter alia, a timeline for the sale of Ogden which was to be listed for sale by April 15, 2020. Antonio was also given the option to purchase Ogden by April 14, 2020.
Antonio brought a motion to extend the timeline for him to purchase Ogden, or in the alternative to extend the timeline for the listing of Ogden for sale. He was seeking the extension as a result of intervening circumstances caused by the COVID-19 pandemic.
The Applicants brought a cross-motion to, inter alia, proceed with the listing of Ogden for sale, vary the Trimble Order to move the administration of the estate and the litigation forward.
Their position was that Antonio and members of his family had lived at Ogden rent-free for years, allowed it to fall into disrepair, that Antonio paid nothing toward expenses for Ogden while Maria was alive, and additionally, that municipal tax had not been paid for a few years.
While Antonio did not deny that municipal taxes were in arrears and that the last time they were paid was in 2017, he blamed his sisters’ re-direction of their mother’s mail to themselves as the reason. He also took the position that rent was not paid because Maria had not asked him and members of his family to pay rent.
With respect to the delay of the sale of Ogden, Antonio’s position was that the real estate person who was hired to carry out a Comparative Market Evaluation of Ogden would not make a site visit because of COVID-19. The evaluation was required to allow him to apply for financing. He also attributed the delay to the offices of banks and municipal departments being closed by health officials in March or April.
The Applicants responded to Antonio’s motion by asserting that Antonio and his family had lived in Ogden for many years without paying rent or expenses to their mother. Additionally, they took the position that Antonio’s evidence in support of his motion was deficient:
“ In response to Antonio’s motion, the applicants ask the court to look through the evidence he has given about why he has not complied with Trimble order. They ask the court to find that Antonio has not made any attempt to purchase the house at all. Aside from his bald assertions that COVID-19 has frustrated his ability to comply with that order, they argue a careful review of Antonio’s evidence reveals that:
– He has produced no evidence that the “housing market is deflated.
– He has produced no evidence that “government offices are closed.
– He has produced no evidence that “banking institutions are not fully operational.
– He has produced no evidence that he will be prejudiced if the timelines in the order of Trimble J. are not extended.”
In his analysis, Justice Emery affirmed the importance of following Court Orders and that the principles to be applied to a motion to extend timelines in an Order apply in the COVID-19 environment.
“ Rules 1.04, and 2.01 in effect allow a court to extend time if that will secure a just, cost effective, and efficient determination of the case. The principles that apply to any motion to extend timelines in an order are relevant to a motion brought to extend time in the COVID-19 environment.”
The following are factors to be considered:
“ In my view, a moving party seeking an extension in this context must demonstrate that an order to vary the timeline would be in the interest of justice, and would not cause undue prejudice to the opposite parties. Factors to consider include:
a) The steps not taken were necessary to carry out the terms of any order, and no other alternative to taking those steps would have served that purpose;
b) The steps were not taken because of the moving party’s inability to access business, professional or institutional offices physically or electronically because of COVID-19 protocols;
c) An extension of time would not be contrary to any law, or the rights of other person under an order of any court;
d) A reasonable explanation is provided for not taking the required steps, or why it was difficult or impossible to comply with the order for COVID-19 related reasons;
e) The moving party has made best efforts to otherwise comply with the order, and all other terms of the order that were not impeded by the COVID-19 protocols have been met; and
f) The moving party has acted in good faith.”
The onus is on the party seeking the extension of time to provide sufficient evidence that an extension should be granted.
“ Where a party seeks relief from complying with an order, by seeking an extension of time or otherwise, that party must essentially show cause why that relief should be granted. The onus to provide necessary and persuasive evidence rests on that party. In this case, that onus is on Antonio.”
After reviewing Antonio’s position, Justice Emery found that he had not meet the threshold required to grant an extension:
“ Unfortunately, Antonio has not provided any of this evidence, which I consider necessary to meet the requirements to obtain an extension of time from this court. Instead, he has taken a position that serves his own interests over those of the estate or the other beneficiaries. Taking this position makes me question his good faith in bringing this motion.”
In their cross-motion the Applicants were seeking the following two alternative Orders:
“ The cross-motion of the applicants essentially asks for two kinds of orders. They seek orders to list and sell the house without Antonio’s involvement as an estate trustee, and the right of the estate to charge him occupation rent in the meantime. The other kind of order they seek would compel Antonio to make disclosure as required by the Trimble order, and to move the litigation along.”
Justice Emery varied the Trimble Order to, inter alia, authorize the Applicants as of June 1, 2020 to list Ogden for sale on behalf of the Estate. Justice Trimble also appointed a listing agent for the sale, ordered Antonio’s cooperation with respect to the sale of Ogden and to vacate the property in a timely manner. Additionally, Antonio was ordered to pay occupation rent to the Estate in the amount of $2,000 per month.
This decision makes it clear that the main reason Antonio failed in being granted an extension of the timelines in the Trimble Order was that he failed to provide the evidence necessary for the judge to grant the relief he was seeking.
This is an important decision because it provides guidance as to what evidence should be presented to the Court when seeking an extension of a timeline during COVID-19.