[5] Adjournment decisions are highly discretionary and appellate courts are rightly reluctant to interfere with them. Laskin J.A. succinctly summarized the operative legal principles in Khimji v. Dhanani (2004), 69 OR. (3d) 790 (C.A.). Although he was in dissent, the majority accepted his articulation of the statement of principles. At paras. 14 and 18 he said:
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. [Emphasis added.]
18. I begin with the overriding goal of our modern Rules of Civil Procedure: to ensure as far as possible that cases are resolved on their merits. This goal is expressly set out in Rule 2.01(1)(a), which gives a judge power to grant any relief necessary "to secure the just determination of the real matters in dispute". Courts should not be too quick to deprive litigants of a decision on the merits. The trial judge does not appear to have sufficiently taken into account that his order deprived the parties, especially the appellant, of a determination of "the real matters in dispute."
See also Ariston Realty Corp v. Elearim Inc. [2007] O.J. No. 1497 (S.C.J.), at paras. 33, 36 and 38.
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[10] Finally, while the motion judge was justified in observing that the medical assessments should have been arranged prior to May 2010, she gave undue weight to the appellant's lawyer's failure to do so when all of the foregoing factors are taken into consideration. As Hambly J. noted when granting leave to appeal to the Divisional Court in this matter, "the often applied principle that the sins of the lawyer should not be visited upon the client applies in this case." This principle was enunciated by this Court in Halton Community Credit Union Ltd. v. ICL Computers Canada Ltd. (1985), 8 O.A.C. 369, at para. 11:
Undoubtedly counsel is the agent of the client for many purposes ... but it is a principle of very long standing that the client is not to be placed irrevocably in jeopardy by reason of the neglect or inattention of his solicitor, if relief to the client can be given on terms that protect his innocent adversary as to costs thrown away and as to the security of the legal position he has gained. There may be cases where the plaintiff has so changed his position that this is impossible.
[11] This is such a case, in my opinion. There is nothing to indicate that a further adjournment of six months would have in any way affected "the security of the legal position [the respondents had] gained" or changed their position in any way that could not be compensated for in costs. Mr. Black submitted that it is inaccurate to say the appellant was "placed irrevocably in jeopardy" by reason of the adjournment refusal and the dismissal of the action, because she has other remedies open to her, namely a potential claim against her solicitor. I am not prepared to say that she should be required to resort to such a remedy in the circumstances of this case.
[12] Apart from the understandable frustrations experienced by presiding judicial officials and opposing parties over delays in the processing of civil cases, it is the overall interests of justice that, at the end of the day, must govern. Perell J. expressed this sentiment well in Ariston Realty Corp., at para. 38:
In my opinion, a concern for the principles of natural justice and the appearance of justice being done explains why, perhaps to the chagrin of those opposing adjournments, courts should tend to be generous rather than overly strict in granting indulgences, particularly where the request would promote a decision on the merits. This liberality follows because it is in the public interest that whatever the outcome, a litigant should perceive that he or she had their day in court and a fair chance to make out their case.
[13] Here, at the end of the day, the interests of justice favour the appellant's having her day in court to put forward her claim for damages on the merits.
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