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Adjournments

. Bank of Montreal v. Cadogan

In Bank of Montreal v. Cadogan (Ont CA, 2021) the Court of Appeal considered an appeal based on an adjournment request:
[8] Whether to grant an adjournment in a civil proceeding is a highly discretionary decision, and the scope for appellate intervention is limited: Khimji v. Dhanani (2004), 2004 CanLII 12037 (ON CA), 69 O.R. (3d) 790 (C.A.), at para. 14 (per Laskin J.A., dissenting, but not on this point). The inquiry on appeal must focus on whether the court below took account of relevant considerations in balancing the competing interests and made a decision that was in keeping with the interests of justice: Toronto-Dominion Bank v. Hylton, 2010 ONCA 752, 270 O.A.C. 98, at para. 37.
. Dhatt v. Beer

In Dhatt v. Beer (Ont CA, 2021) the Court of Appeal considers principles applicable to trial adjournments:
[10] A judge may postpone or adjourn a civil trial to such time and place, and on such terms, as are just: Rules of Civil Procedure, r. 52.02. The principles governing a trial judge’s exercise of that discretion were set out in the majority and dissenting reasons in Khimji v. Dhanani (2004), 2004 CanLII 12037 (ON CA), 69 O.R. (3d) 790 (C.A.). Both must be read together. In his dissent, Laskin J.A. summarized several of the main principles, at para. 14:
A trial judge enjoys wide latitude in deciding whether to grant or refuse the adjournment of a scheduled civil trial. The decision is discretionary and the scope for appellate intervention is correspondingly limited. In exercising this discretion, however, the trial judge should balance the interests of the plaintiff, the interests of the defendant and the interests of the administration of justice in the orderly processing of civil trials on their merits. In any particular case several considerations may bear on these interests. A trial judge who fails to take account of relevant considerations may exercise his or her discretion unreasonably and if, as a result, the decision is contrary to the interests of justice, an appellate court is justified in intervening.
The majority, Doherty and Catzman JJ.A., added a further factor stating, at para. 27:
I have had the privilege of reading the lucid reasons of Laskin J.A. I adopt his summary of the facts and his statement of the principles governing this appeal. I would only add that in determining whether to grant an adjournment in this case, the trial judge had to consider not only the orderly processing of civil trials, but the need to effectively enforce court orders. I think the refusal of the adjournment in this case was justified principally because the appellant all but ignored the order of the court made in November. He made virtually no attempt to retain a lawyer who could act for him on the scheduled trial date, or to pay even part of the costs order made against him.[1]
[11] Those general principles must be applied with a stance of deference to the front-line trial judge. As stated by the majority in Khimji, at para. 36:
This court sits at a distance from the day-to-day operation of trial courts. That distance must impair this court's ability to review decisions such as the one under appeal. Strong deference is due to the decision of those in the trial courts who are responsible for the day-to-day maintenance of an efficient and just system of civil trials.
[12] Since Khimji was decided in 2004, an increasing degree of pre-trial case management has been applied to civil actions in the Superior Court of Justice. One object of the pre-trial case management process is to ensure that parties meet the trial date set for their action.

[13] The trial of the present action was subject to the Toronto Region’s “Consolidated Practice Direction for Civil Actions, Applications, Motions and Procedural Matters in the Toronto Region”, (July 1, 2015). Section 71 deals with trial dates, stating that: “Once trial dates are set, there will be no adjournments of the trial except in extenuating and exceptional circumstances.” [Emphasis added.]

....

[25] If at some time in the past there was a sense that a party had some sort of presumptive entitlement to one adjournment of a set trial date, those days are long gone. As the Toronto Region Practice Direction clearly states, once a trial date is set, there will be no adjournment of the trial “except in extenuating and exceptional circumstances.” The responsibility squarely falls on the party requesting an adjournment of a set trial date to demonstrate extenuating and exceptional circumstances.
. Roberts v Miller

In Roberts v Miller (Ont CA, 2015) 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]
. Turbo Logistics Canada Inc. v. HSBC Bank Canada

In Turbo Logistics Canada Inc. v. HSBC Bank Canada (Ont CA, 2016) the Court of Appeal extensively canvasses principles applicable to the granting of trial adjournments:
[18] The applicable principles are well understood. They were expressed by this court in Khimji v. Dhanani (2004), 2004 CanLII 12037 (ON CA), 69 O.R. (3d) 790, per Laskin J.A. dissenting, but not on this point, at para. 14:
A trial judge enjoys wide latitude in deciding whether to grant or refuse the adjournment of a scheduled civil trial. The decision is discretionary and the scope for appellate intervention is correspondingly limited. In exercising this discretion, however, the trial judge should balance the interests of the plaintiff, the interests of the defendant and the interests of the administration of justice in the orderly processing of civil trials on their merits. In any particular case several considerations may bear on these interests. A trial judge who fails to take account of relevant considerations may exercise his or her discretion unreasonably and if, as a result, the decision is contrary to the interests of justice, an appellate court is justified in intervening. In my opinion, that is the case here.
[19] Laskin J.A. observed that in refusing an adjournment, the trial judge should have taken into account the goal expressed in r. 2.01(1)(a), namely “to secure the just determination of the real matters in dispute” and the resolution of cases on their merits.

[20] Khimji was considered by this court in Toronto-Dominion Bank v. Hylton, 2010 ONCA 752 (CanLII), which adopted the above statement. This court observed, at para. 36, that “[t]he presiding judge has a well-placed and a well-established discretion to decide whether an adjournment request ought to be allowed or denied.” After setting out the above statement, the court added, at para. 37:
Laskin J.A.'s passage makes it clear that, in reviewing highly discretionary decisions such as whether to allow a request for an adjournment, the inquiry must focus on whether the court below took account of relevant considerations in balancing the competing interests and made a decision that was in keeping with the interests of justice.
[21] The court added that factors to be considered include the reason for the adjournment request, the history of the matter, the prejudice to the party resisting the adjournment and the consequences to the requesting party of refusing the request. The fact that a party is self-represented is a relevant factor as the court has an obligation to ensure that all litigants have a fair opportunity to advance their positions.

[22] In Ariston Realty Corp. v. Elcarim Inc., [2007] O.J. No. 1497 (S.C.), a case much relied on by the appellants, Perell J. helpfully set out at para. 34 a non-exclusive list of factors that may be weighed in the exercise of a court’s discretion with respect to an adjournment.

[23] That list includes not simply factors of immediate concern to the parties, but factors affecting the broader public interest, including the objective of determining the matter on its merits, the appearance of justice and the needs of the administration of justice in the orderly processing of trials.

[24] The list in Ariston also suggests that the court should consider whether the refusal of an adjournment would significantly compromise the ability of the party prosecuting or defending the litigation and the effect of the adjournment on substantive and procedural justice.

[25] The list also makes it clear that the court must consider “the competing interests of the parties in advancing or delaying the progress of the litigation”.

[26] Finally, Perell J. noted, the judge is entitled to consider “the particular circumstances of the request for an adjournment and the reasons and justification for the request”.

[27] The balancing of interests – the private interest of the parties and the public interest in the fair and efficient adjudication of disputes on their merits – is quintessentially the responsibility of the trial judge who has the parties in front of her and is best equipped to assess all the relevant circumstances. The trial judge identified some of the factors she considered. In my view, those factors – and others she did not mention – amply justified her decision.
. Royal Bank of Canada v. Puzzolanti

In Royal Bank of Canada v. Puzzolanti (Ont CA, 2018) the court sets out the factors involved in a judge's discretionary decision whether to grant an adjournment or not:
[6] We do not see any error in the motion judge’s conclusion to proceed with the summary judgment motion in these circumstances. The motion judge’s decision is a matter within her discretion and will not be interfered with unless the judge has failed to take account of relevant factors and thus exercised her discretion unreasonably, such that the decision is contrary to the interests of justice: Boaden Catering Ltd. v. Real Food for Real Kids Inc., 2017 ONCA 248 (CanLII), at para. 17.
. Laski v. BMO Nesbitt Burns Inc.

In Laski v. BMO Nesbitt Burns Inc. (Ont CA, 2020) the Court of Appeal commented on a judge's discretion regarding adjournments:
[13] The determination of whether it is in the interests of justice to grant an adjournment is discretionary, and “the scope of appellate intervention is correspondingly limited”: Khimji v Dhanani (2004), 2004 CanLII 12037 (ON CA), 69 O.R. (3d) 790, at para. 14 (C.A.); Turbo Logistics Canada Inc. v. HSBC Bank Canada, 2016 ONCA 222, at paras. 16-28. We see no error in the motion judge’s decision to exercise her discretion and proceed with the hearing of the motion. This was the third date set for argument of the motion. The motion judge was familiar with the history of the matter, and the terms of the previous adjournments, each requested by the appellant. Furthermore, the appellant knew that there would be no further adjournments in the absence of a medical note providing more specific information about his limitations. This was not forthcoming. In these circumstances, the motion judge properly proceeded to hear the motion.



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