Monday, March 28, 2016

Adjournment of a civil trial

Turbo Logistics Canada Inc. v. HSBC Bank Canada, 2016 ONCA 222:

[18]       The applicable principles are well understood. They were expressed by this court in Khimji v. Dhanani (2004), 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, 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.


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