Prejudice (Meaning of)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-23
CLNP Page ID:	2030
Page Categories:	[Legal Principles]
Citation:	Prejudice (Meaning of), CLNP 2030, <>, retrieved on 2024-11-23
Editor:	Sharvey
Last Updated:	2022/12/07

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Emami v. Furney, 2019 ONSC 1238 (CanLII)

[4] Rule 53.08(1) of the Rules of Civil Procedure provides that leave under Rule 30.08(1) shall be granted on such terms as are just and with an adjournment if necessary, unless to do so will cause prejudice to the opposite party or will cause undue delay in the conduct of the trial. Rule 53.08 In this context: (1) “prejudice” means prejudice for which costs are not an adequate answer or compensation; (2) “undue delay” means a delay that is unreasonable: Glass v. 618717 Ontario Inc., [2011] O.J. No. 2157, para. 12. In granting leave the court may, under Rule 1.05, impose such terms and give such directions as are just.

Minas v. Adler, 2022 ONSC 6706 (CanLII)

[15] Dow J. then considered the test for granting an injunction as described in RJR-MacDonald Inc. v. Canada (Attorney General) 1994 CanLII 117 (SCC), 1994 1 S.C.R. 311. At paras. 13 to 15 of his reasons, Dow J. dismissed the Tenants’ injunction motion based upon the second prong of the RJR-MacDonald test. As emphasized in bold below, Dow J. expressed the view that the propriety of the eviction should be dealt with by the Board:

Regarding the second test whether the moving party tenant will suffer irreparable harm if the injunctive relief is not granted, I have concluded that they will not. Mr. Adler’s private corporation can be operated from a variety of locations and not necessarily a private residence which raises application of the Residential Tenancies Act, supra.

Mr. Adler has resided in the United Arab Emirates since December, 2020. The evidence is his employer, Skypower Services pays for his accommodations in that location. It is clear he has and continues to perform the duties of his occupation from that location, being other than Toronto. The primary concern of accommodation for his son to attend Crescent School and live nearby has been secured, likely at an optimal location, that is, with his mother who has shared custody.

The Supreme Court of Canada has described the nature of irreparable harm as being something that cannot be quantified in monetary terms or cured by collecting damages from the other. I was not directed to any evidence of such harm. To the contrary, it would appear the propriety of the eviction of the plaintiffs/tenants should first be dealt with by the Landlord and Tenant Board. If any claims for damages remain, this action seeks same and remains available. [Emphasis added.]

[16] Dow J. then addressed the third prong of the RJR-MacDonald test at paras 16 and 17:

Regarding the third part of the test, being which party would suffer the greater harm from granting or refusing the remedy sought until there is a decision on the merits, I have concluded this also rests in favour of the defendants/landlords. There is evidence that this luxury property was not being kept up to a standard that one would expect. That is perhaps understandable given Mr. Adler’s absence from the property since December, 2020. In addition, the evidence regarding Mr. Adler’s return to the premises was uncertain if not speculative.

The defendants’ decision to move back in, in my view, provides the best opportunity for the property to be properly maintained pending disposition of all of the disputes between the parties before the Landlord and Tenant Board. This will also benefit the plaintiffs/tenants if determination of the issue of ending their tenancy is resolved in their favour. In this regard, there is evidence that the plaintiffs/tenants’ refusal to pay the water bill (which has been added to the tax bill and paid by the defendants/landlords) relates to it being excessive as a result of [a] leak in the pool. With the landlord in possession, the steps necessary to determine that [sic] the water leak issue can progress more efficiently. Further, the defendant/landlords’ testified insurance on the property requires them to be living in it and that refinancing of mortgages depends on the defendants/landlords being in possession. [emphasis added]

R. v. Korevaar, 2009 CanLII 42456 (ON SC)

[20] I agree with the Crown’s submission that in order to show that Mr. Korevaar’s right to disclosure was violated, he must satisfy the court that there was a reasonable possibility that the undisclosed material could have been used in meeting the case for the Crown, or in advancing his defence, and that the non-disclosure could affect the fairness of his trial. This is the meaning of prejudice in the context of this analysis.

[21] In my view, a common sense approach to the circumstances of this case would have given rise to a consideration of the following factors in assessing the appropriate remedy:

(a) the oversight by the Crown was inadvertent and there was no suggestion of bad faith;

(b) the defence took no steps to obtain the material for himself. The prohibition order was available and Mr. Korevaar had plenty of notice of the Crown’s intention to tender it;

(c) the original court order could not have assisted the defense. Therefore, the defence was not prejudiced by a non-disclosure of a copy;

(d) the oversight was easily remedied by a short adjournment of the trial, without in any way affecting the fairness (my emphasis) of the trial.

[22] In this case, the Crown, defence and the court were fully aware that the court’s own driving prohibition order existed and that the Crown would be relying upon it. The failure to disclose a copy by the Crown prior to the trial was inadvertent but certainly the defence could have and should have asked for a copy of the order. Disclosure is fundamental in ensuring trial fairness. In the circumstances of this case, the defence cannot lie low, do nothing and later complain of non-disclosure. The defence obligation was either to seek out a copy of the order or to ask the Crown for a copy.

[23] Within the context of these facts, the trial judge misapprehended the legal meaning of prejudice. He was led to find prejudice in this case where none existed. His misinterpretation of the meaning of prejudice led to the error in law wherein he failed to grant an adjournment.

[24] In my view, the non-disclosure, whether it prejudiced Mr. Korevaar or not, could have been remedied easily by the granting of an adjournment. For these reasons, I find that the trial judge erred in law when he found a Charter breach in the non-disclosure of the copy of the original prohibition order of Justice McCreary pertaining to Mr. Korevaar. I further find that the trial judge erred in law in failing to grant an adjournment which would have remedied any concerns regarding the filing of the prohibition order.