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Civil Procedure - Adjournments

Roberts v Miller (Ont CA, 2015)

In this case the Court of Appeal reviewed criteria to be applied by a trial judge when considering to grant an adjournment request:
[35] The decision whether to grant an adjournment is highly discretionary. Nonetheless, a presiding judge who fails to take account of relevant considerations in balancing the interests of the applicant, the respondent and of the administration of justice in the orderly processing of cases on their merits may exercise that discretion unreasonably and thus, in a manner that justifies appellate intervention: Khimji v. Dhanani (2004), 2004 CanLII 12037 (ON CA), 69 O.R. (3d) 790 (C.A), per Laskin J.A. at paras. 14 and 18.

[36] In this case, in my view, the motion judge erred in failing to grant an adjournment because she jumped to the erroneous conclusion that questioning and updated factums were unnecessary to permit a proper consideration of the issues she identified could proceed – and she did so without allowing mother’s counsel to make full submissions on the question of whether the motions could proceed without questioning.

[37] The issues raised by the mother on the father’s motion to change included whether income should be imputed to the father because he was intentionally underemployed. The issues on the mother’s constructive trust claim included whether the father’s failure to make full financial disclosure concerning his pension in 2006 justified re-opening the 2006 order.

[38] The very nature of these issues suggests that the father would have information relevant to them that would not otherwise be available to the mother.

[39] That conclusion is supported by father’s counsel’s substantive submissions on the father’s motion to change. During those submissions, father’s counsel provided information, purportedly as an officer of the court, concerning the status of the father’s grievance over his loss of employment. Father’s counsel explained that this information was not before the court in an affidavit because he anticipated participating in questioning.

[40] Further, the motion judge’s written reasons determining the substantive issues belie her conclusion that questioning and updated factums were unnecessary.

[41] The motion judge’s reasons are about 30 pages long, and they refer to more than 35 authorities, most of which were not referred to by counsel in oral submissions (and one of which had been overturned on appeal[3]). Her reasons include the following findings:
• the circumstances that led to the father’s 2012 dismissal from his longstanding employment were beyond his control – rather, they were due to his alcoholism, which is a disease;

• the father was not intentionally unemployed or underemployed while he sought treatment for his alcoholism;

• there was no evidentiary basis upon which to impute income to the father — the mother bears the onus and did not establish that the father should have been working during his treatment or that he could now earn at a level consistent with what he was earning while employed at the City of Hamilton;

• there was no evidence of misinformation, misrepresentation, deliberate undervaluation of assets or deliberate failure to provide financial information.
[42] The motion judge’s findings of no evidentiary basis to support specific conclusions are particularly telling. The mother was deprived of the opportunity to establish an evidentiary basis through questioning the father in circumstances where an order for questioning had been made. Moreover, the finding that there was no evidence of misinformation, misrepresentation, deliberate undervaluation of assets or deliberate failure to provide financial information undermines the motion judge’s conclusion that the issue she identified for determination in relation to the mother’s trust claim presented a preliminary question of law.

[43] The motion judge did not find either the mother or her counsel at fault for the failure to complete questioning by December 31, 2013. On the record before her, such a finding would have been unreasonable.

[44] I conclude that the motion judge denied the mother a fair hearing in failing to grant her adjournment request. She not only deprived the mother unfairly of the opportunity to complete questioning that had been previously ordered, she denied the mother the ability to make proper submissions on issues her reasons demonstrate posed significant complexity. And as I have said, she did so without allowing the mother to make full submissions on whether the motions could proceed without questioning.[4]

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