COVID-19 has changed many aspects of the legal process in Ontario. However, procedural timelines set out in court orders remain in effect and any attempt to vary them still requires a strong evidentiary record. In the recent decision of Lima v Ventura (Estate of), 2020 ONSC 3278, an applicant attempted to extend a court-ordered deadline for his purchase of the deceased’s home. However, the applicant’s failure to present “persuasive evidence” in support of the request led to a resounding denial by the court and a clear reminder that court-ordered timelines are to be respected.
Maria Eduarda de Oliviera Bernardo Ventura (“Mrs. Ventura”) passed away on December 27, 2018, leaving her three children – Carmelinda Ventura De Jesus (“Linda”), Eduarda Ventura Lima (“Eddy”) and Antonio Manuel Oliviera Lima (“Antonio”) – as joint estate trustees. The most significant asset in her estate was a house valued at approximately $900,000. Antonio resided in the house with his family without any payment of rent either before or after Mrs. Ventura’s death or contribution to maintenance or property taxes.
The parties consented to an order in early February 2020 for, among other things, a process by which the house would be sold (the Order). Among other things, the parties were to list the house for sale by April 15, 2020, unless purchased by Antonio by the close of business on April 14, 2020.
Antonio brought a motion (on an unknown date) to extend the deadline to exercise his option to purchase the home. Though he cited the circumstances created by the COVID-19 pandemic as a basis for his request, his supporting motion materials provided scant evidence in support of his stated inability to complete a purchase of the home by the ordered date. Simultaneously, his sisters brought a cross-motion to vary the Order and proceed with the listing for sale of the house without Antonio’s involvement and to charge him occupation rent in the interim period (among other things). Due to in-person restrictions on court proceedings applicable at the time the motion was heard, it was heard in writing before the Honourable Justice Emery.
Court’s reasoning and decision
Court orders must be respected, even during a pandemic. Where extensions of time are sought, no fixed rules apply. Each case must be considered on its facts. Extension requests are discretionary decisions to be made by the court based on the discretionary powers provided in the Rules of Civil Procedure.
“Despite the precautionary measures that society has taken to protect individuals to the extent possible from exposure to COVID-19, parties are still expected to obey court orders in today’s environment.” [para. 26]
On such a motion in a pandemic environment, Justice Emery emphasized that a moving party must convince the court with persuasive evidence that the pandemic (in this case, COVID-19) presented circumstances and reasons that frustrated or prevented compliance with the order in question.
The Court helpfully set out a number of factors to consider on motions related to delays due to COVID-19 that could justify varying a court-imposed timeline. These factors (found at paragraph 30) will be weighed against any undue prejudice caused to the responding party:
- 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;
- 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;
- An extension of time would not be contrary to any law, or the rights of other person under an order of any court;
- 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;
- 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
- The moving party has acted in good faith.
In this case, Antonio's request for an extension was denied because he failed to provide evidence to support his claims that the circumstances created by COVID-19 frustrated his efforts to purchase the home. Specifically, Antonio failed to provide any evidence in support of his contentions that the housing market was deflated, government offices were closed and that banking institutions were not fully operational. He provided no evidence of his attempts to secure virtual (telephone or internet) assistance from real estate professionals, banks or government institutions during the relevant period. The Court suggested that he could have provided proof of contact with service providers by telephone or email and expert evidence on COVID-19’s effects on the housing market. Overall, the evidence he presented demonstrated no effort to abide by the Order in light of the obstacles to purchasing a home presented by COVID-19. The Court also noted that Antonio’s position, without persuasive evidence of his attempts to carry out the order, served his own interests over the interests of the estate and the other beneficiaries.
The sisters’ cross motion for the payment of occupation rent for Antonio's continued residence in the house, among other things, was granted.
The case has implications for parties seeking extensions of time provided for in court orders during COVID-19. Unlike certain statutory timelines which have been extended, court-ordered timelines remain in effect. There is a high burden on the moving party seeking an extension, and the Court has now laid out specific factors as they relate to COVID-19 that may be considered when a party seeks to discharge its evidentiary burden and obtain a timeline extension.
Additionally, this decision highlights the continued importance of a strong paper record when asking the court to extend an ordered timeline. Parties should continue to be guided by the principle that they should take all available steps to adhere to an order and to explain to the court how the party made every good faith effort to comply. While judicial notice may be sufficient for certain claims, proof of the exploration and pursuit of viable alternatives to ensure compliance with court orders – particularly online solutions that adhere to COVID-19 protocols – is expected.
A special thanks to one of our summer students, Ashleigh Graden, for her assistance with this Insight.
- RRO 1990, Reg 194, Rules 1.04, 2.01 and 3.02.↩