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Civil Litigation Dicta - Adjournments (2). Rebello v. Ontario (Community Safety and Correctional Services)
In Rebello v. Ontario (Community Safety and Correctional Services) (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal of an earlier dismissal "of her lawsuit alleging that the Ontario Provincial Police breached common law and statutory duties they owed to her by failing to meaningfully investigate complaints".
Here the court considered adjournment doctrine:[13] Whether to grant an adjournment in a civil proceeding is “a highly discretionary decision, and the scope for appellate intervention is limited”: Bank of Montreal v. Cadogan, 2021 ONCA 405, at para. 8. The motion judge’s decision to proceed was based on relevant factors and was consistent with the interests of justice given the history of the litigation. The appellant did not file any evidence to substantiate her assertion that attending on June 9, 2023, would have posed a genuine health risk. The hearing date had been set six months earlier. The motion judge had already considered an earlier request by the appellant to obtain an adjournment.
[14] We conclude that the motion judge exercised his discretion reasonably, and that the appellant’s allegation of a breach of natural justice has no merit. . Fernandez v. Commonwell Mutual Insurance
In Fernandez v. Commonwell Mutual Insurance (Div Court, 2024) the Divisional Court allowed an appeal from an adjournment denial decision, here on procedural fairness grounds where the court found that the "appellant demonstrated a complete inability at the hearing to understand the accident benefits scheme and represent herself":[3] Commonwell consented to the appellant’s request for an adjournment on terms. The adjudicator refused the adjournment on the ground that the factors in favour of proceeding outweighed those that supported an adjournment, namely: the number of previous adjournments, the hearing was marked peremptory and the desirability of having the matter heard on its merits. The hearing proceeded with the appellant unrepresented in regard to thirteen identified issues. The appellant was found not to have met her onus and her claim was dismissed.
[4] While we agree that the LAT has wide authority to control its own process, we allow the appeal because we are not satisfied that the appellant received a fair determination of her matter on its merits.
[5] The appellant demonstrated a complete inability at the hearing to understand the accident benefits scheme and represent herself. She had limited proficiency in English (although an interpreter was provided). It was a complicated claim on which she wished to be represented by a lawyer and quickly retained replacement counsel to seek an adjournment of the hearing so they could properly act for her. The appellant’s inability to meaningfully act for herself was apparent to such an extent that counsel for Commonwell, to her credit, raised fairness concerns during the hearing about the matter proceeding.
[6] The appellant’s prior lawyer did not seem to have subpoenaed witnesses or arranged for witnesses to be present to give evidence on her behalf. A review of the transcript of the hearing does not indicate that the appellant was advised that she could call evidence.
[7] Indeed, LAT concedes that the matter should be remitted back to the LAT for a fair determination on the merits at a new hearing. I make no finding about the weight to be accorded to the tribunal’s position on the outcome of a proceeding in this court.
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[9] In the unusual circumstances of this case, the appeal is allowed. The matter is remitted back to the LAT for a new hearing on the merits with the LAT to determine the appropriate process going forward. . Malek v. Soliman
In Malek v. Soliman (Ont CA, 2024) the Ontario Court of Appeal considered the SOR for an appeal of an adjournment decision:[6] An appellate court will not interfere with a judge’s exercise of discretion regarding an adjournment request unless it is shown that the judge exercised that discretion unreasonably, and the decision is contrary to the interests of justice: Toronto – Dominion Bank v. Hylton, 2010 ONCA 752, 270 O.A.C. 98, at para. 36.
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