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Civil Litigation - Adjournments
Part 2
. 774161 Canada Ltd. v. Ford
In 774161 Canada Ltd. v. Ford (Div Court, 2023) the Divisional Court considered appellate deference on a discretionary adjournment decision, here of the commencement of the Small Claims trial:[21] A reviewing court should show deference to a trial judge’s exercise of discretion in deciding whether to grant an adjournment, and only interfere in circumstances where the trial judge has misdirected themselves or where their decision is “clearly wrong”: See Ontario Securities Commission v. Go-To Developments Holdings Inc., 2022 ONCA 328 at para.11; Khimji v. Dhanani [2004] O.J. No. 200; CanLII 12037 (ON CA); 2004 CanLII 12037 (ON CA), 69 O.R. (3d) 790 at para. 14.
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[24] A trial judge should consider the factors found in Rule 52.02, helpfully expanded upon in Ariston Realty Corp. v. Elcarim Inc., 2007 CanLII 13360 (ON SC), [2007] O.J. No. 1497 at para. 34. These expanded factors include: the objective of determining a matter on its merits; principles of natural justice, including that justice should be done and be seen to be done, the rationale and circumstances of the request for an adjournment, the consequences of an adjournment on the ability to do justice to the matter, the competing interests of the parties in advancing or delaying the progress of the litigation, the prejudice not compensable in costs, if any, suffered by a party by the granting or the refusing of the adjournment, whether the ability of the party requesting the adjournment to fully and adequately prosecute or defend the proceeding would be significantly compromised if the adjournment were refused, and the need of the administration of justice to orderly process civil proceedings and effectively enforce court orders. . Tamayo v. Licence Appeal Tribunal
In Tamayo v. Licence Appeal Tribunal (Div Court, 2023) the Divisional Court considers an appeal from a tribunal denial of an adjournment, which is an interlocutory administrative order. The court held that it lacked jurisdiction to consider the appeal and dismissed it both as a nullity and under R2.1 (frivolous and vexatious grounds). The case is interesting for the tactical choices that a party faces when dealing with a denial of a tribunal adjournment, including judicial review [para 6] and re-requesting adjournment at the commencement of the tribunal hearing [para 7]:[1] Justice Corbett confirms the urgent case management teleconference held November 18, 2022.
[2] The appellant filed a notice of appeal from a decision and reconsideration decision of the LAT denying a request for adjournment of a hearing at the LAT scheduled to start November 21, 2022.
[3] The appellant takes the further position that the appeal to this court has the effect of staying the LAT proceedings. That, he argues, is the effect of the stay provisions in the SPPA. Counsel for the LAT argues that there is no jurisdiction in this court to hear the appeal, and thus the notice of appeal is, itself, a nullity, and the LAT could proceed with the hearing as scheduled on November 21, 2022.
[4] On the question of jurisdiction, counsel for the applicant argued that the Divisional Court decision in Penney v. The Cooperators General Insurance Company, 2022 ONSC 3874 leaves the door open for an appeal in exceptional circumstances. I have dealt with that argument in Kahissay v. Intact Insurance, 2022 ONSC 6357: there is no jurisdiction in this court to hear an interlocutory appeal from LAT and that is the holding in Penney. Matheson J. has come to the same conclusion in another recent case in which applicant's counsel was also counsel [Allo v. Licence Appeal Tribunal, 2022 ONSC 6368].
[5] An applicant before the LAT may not obtain reversal of a decision denying an adjournment merely by filing a notice of appeal at the last minute. If this court has not had a reasonable opportunity to deal with the notice of appeal, then, as argued by counsel for LAT, it is open to LAT to conclude that the notice of appeal is a nullity and does not have the effect of staying the LAT proceedings. It is better, however, for this court to rule on the propriety of a notice of appeal filed with this court.
[6] In all the circumstances, this appeal is dismissed pursuant to R. 2.1 for the reasons set out in Penney and Kahissay. This decision is without prejudice to an application for judicial review. I would extend the time for such an application to be brought to December 16, 2022. In so directing, no inference should be drawn that I have ruled on any issues of mootness or prematurity respecting such an application. Also, as discussed in the teleconference, commencing an application for judicial review does not have the effect of staying the proceedings below. To obtain a stay pending hearing of the application for judicial review, the applicant would have to move for a stay. I declined to grant an interim stay and this court will not, in any event, schedule a stay motion prior to the hearing scheduled to commence on November 21, 2022.
[7] As acknowledged by counsel for LAT during the conference, it is open to a party to seek an adjournment from the LAT at the start of the hearing. There are currently no proceedings in this court that would ground such a request, and a proposed or commenced application for judicial review would not ground such a request in the absence of a stay order from this court. This does not preclude other bases for seeking an adjournment, and it would be for the LAT to adjudicate any adjournment request as part of its jurisdiction to control its own process in a manner consistent with principles of procedural fairness. . Supreme Sweets Inc. v. Perlman
In Supreme Sweets Inc. v. Perlman (Div Court, 2023) the Divisional Court considered the standard of review for appealing denial of an adjournment review:[10] A reviewing court should show deference to a Trial Judge’s exercise of discretion in deciding whether to grant an adjournment, and only interfere in circumstances where the trial judge has misdirected themselves or where their decision is “clearly wrong”: See Ontario Securities Commission v. Go-To Developments Holdings Inc., 2022 ONCA 328 at para.11.
[11] When presented with a motion to adjourn a trial, a Trial Judge should take into account:. the objective of determining the matter on its merits;
. the principles of natural justice;
. that justice should be done and should be seen to be done;
. the rationale and circumstances of the request for an adjournment;
. the consequences of an adjournment on the ability to do justice to the matter;
. the competing interests of the parties in advancing or delaying the progress of the litigation;
. the prejudice not compensable in costs, of any, suffered by a party by the granting or the refusing of the adjournment;
. whether the ability of the party requesting the adjournment to fully and adequately prosecute or defend the proceeding would be significantly compromised if the adjournment were refused;
. the need of the administration of justice to orderly process civil proceedings and effectively enforce court orders. See: Ariston Realty Corp. v. Elcarim Inc., 2007 CanLII 13360 (ON SC), [2007] O.J. No. 1497 at para. 33. . Bulakhtina v. Death Investigation Oversight Council
In Bulakhtina v. Death Investigation Oversight Council (Div Court, 2022) the Divisional Court considered, and granted (despite the moving party's prior responsibility for delay), what may the best excuse for an adjournment request ever:[1] The Applicant brings the motion to adjourn the hearing currently scheduled for October 24, 2022, to a date in the new year. The basis for the adjournment request is that the Applicant is working as a medic in Ukraine, and that it will be difficult for her to participate in the hearing because her internet access is unstable and because she will have to move locations to avoid detection. . Van Decker Estate v. Van Decker
In Van Decker Estate v. Van Decker (Ont CA, 2022) the Court of Appeal noted that judges enjoy significant deference in adjournment decisions:[4] A judge at first instance enjoys wide latitude in deciding whether to grant an adjournment. The decision is discretionary and the scope for appellate intervention is accordingly limited. The court must balance the interests of the parties and the administration of justice: Toronto Dominion Bank v. Hylton, 2010 ONCA 752, 270 O.A.C. 98, at para. 36, citing Khimji v. Dhanani (2004), 2004 CanLII 12037 (ON CA), 69 O.R. (3d) 790, at para. 14, per Laskin J.A. (dissenting, but not on these points). . Lacroix v. Central-McKinlay International Ltd.
In Lacroix v. Central-McKinlay International Ltd. (Div Ct, 2022) the Divisional Court made practice comments regarding adjournments:[16] Further, it was the tenant’s obligation to attend the hearing ready to proceed. If the tenant had requested an adjournment, he would have had to provide the LTB with an explanation – particularly where the lawyer had attended at the LTB to present an offer to buy the property but had then left.
[17] Further still, the LTB generally requires that requests for an adjournment be made in advance of the hearing and not on the day of the hearing. No explanation has been provided as to why the lawyer was suddenly unavailable at the last minute, or, if his unavailability arose at the last minute, how this could have been so given his presence at the LTB prior to the hearing. . Ontario Securities Commission v. Go-To Developments Holdings Inc.
In Ontario Securities Commission v. Go-To Developments Holdings Inc. (Ont CA, 2022) the Court of Appeal considered an adjournment:[11] The decision whether to grant an adjournment will be set aside only where the judge misdirected him or herself or was so clearly wrong as to amount to an injustice: Bank of Montreal v. Cadogan, 2021 ONCA 405, at para. 8; Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, [2013] 2 S.C.R. 125, at para. 27. .... . D.M. v. The Children’s Aid Society of Ottawa
In D.M. v. The Children’s Aid Society of Ottawa (Div Ct, 2021) the Divisional Court considered the discretionary decision to grant an adjournment:[240] Whether to grant or refuse an adjournment of a hearing is a matter of judicial discretion.[79] Factors for a court to consider in deciding to grant or refuse an adjournment, include: (a) the overall objective of a determination of the matter on its substantive merits; (b) the principles of natural justice; (c) that justice not only be done but appear to be done; (d) the particular circumstances of the request for an adjournment and the reasons and justification for the request; (e) the practical effect or consequences of an adjournment on both substantive and procedural justice; (f) the competing interests of the parties in advancing or delaying the progress of the litigation; (g) the prejudice not compensable in costs, if any, suffered by a party by the granting or the refusing of the adjournment; (h) whether the ability of the party requesting the adjournment to fully and adequately prosecute or defend the proceeding would be significantly compromised if the adjournment were refused; (i) the need of the administration of justice to process civil proceedings in an orderly manner; and (j) the need of the administration of justice to enforce court orders effectively.[80] That a party is self-represented is a relevant factor in the exercise of the court’s discretion to grant or refuse an adjournment because a part of the court’s obligation is to ensure that all litigants have a fair opportunity to advance their positions.[81] . McTavish v. Reed
In McTavish v. Reed (Ont CA, 2021) the Court of Appeal granted a rare appeal on a refusal of an adjournment:[12] The appellant’s request for an adjournment of the respondents’ application so that it could be heard together with the appellant’s will application was not only reasonable, but to proceed otherwise was unreasonable in these circumstances. Normally, decisions regarding adjournment requests attract a high degree of deference. In this case, though, the application judge’s approach to resolving the adjournment request was overly technical and not in keeping with the general principles set out in r. 1.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Those principles call for “the just, most expeditious and least expensive determination” of applications, “proportionate to the importance and complexity of the issues, and to the amount involved” in the proceedings: see also Finlay v. Paassen, 2010 ONCA 204, 101 O.R. (3d) 390, at para. 14; Wood v. Farr Ford Ltd., 2008 CanLII 53848 (Ont. S.C.), at para. 23. . 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.]
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[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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