Adjournment of a Trial

For a number of reasons it is sometimes necessary to seek an adjournment of a scheduled trial.

38      The adjournment of a trial is a discretionary matter. This discretion must be exercised in accordance with the interests of justice. There are a number of considerations to take into account.

39      In Navarro v. Doig River First Nation, 2015 BCSC 2173, the court provided a comprehensive review of the legal principles to be considered on an adjournment application with the paramount consideration being the interests of justice in ensuring that there will remain a fair trial on the merits of the action. As noted in that case at paras. 18 to 26:

[18] A judge exercises discretion when an adjournment is sought and has wide powers in relation to the order that is made (Cal-Wood Door v. Olma, [1984] B.C.J. No. 1953at para. 13 (C.A.) (Cal-Wood Door)). The discretion must, of course, be exercised judicially in accordance with appropriate principles (Dhillon v. Virk, 2014 BCSC 745at para. 8 (Dhillon)). The exercise of discretion is a delicate and difficult matter that addresses the interests of justice by balancing the interests of the plaintiff and of the defendant (Sidoroff v. Joe (1992), 76 B.C.L.R. (2d) 82 at paras. 8-11 (C.A.) (Sidoroff)). This balancing requires a careful consideration of all of the elements of the case including the nature of the proceedings and the parties (Sidoroff at para. 10). The Court of Appeal will be extremely reluctant to interfere with a decision of a trial judge on an adjournment matter which is integral to exercise of judicial discretion (Sidoroff at para. 11;Toronto-Dominion Bank v. Hylton, 2010 ONCA 752at para. 36 (Toronto-Dominion Bank)).

[19] There are numerous factors to be considered on an adjournment application. However, the paramount consideration is the interest of justice in ensuring that there will remain a fair trial on the merits of the action (Cal-Wood Door at para. 13; Graham v. Vandersloot, 2012 ONCA 60at para. 12 (Graham)). Because the overall interests of justice must prevail at the end of the day, courts are generous rather than overly strict in granting adjournments, particularly where granting the request will promote a decision on the merits (Graham at para. 12). The natural frustration of judicial officials and opposing parties over delays in processing civil cases must give way to the interests of justice, which favours a claimant having his day in court and a fair chance to make out his case (Graham at para. 12).

[20] Other factors or considerations include (in no particular order of priority):

– the expeditious and speedy resolution of matters on their merits (Rule 1-3(1); Sidoroff at para. 10);
– the reasonableness of the request (Dhillon at para. 16);
-the grounds or explanation for the adjournment (Dhillon at para. 16; Toronto-Dominion Bank at para. 38);
– the timeliness of the request (Dhillon at para. 16);
– the potential prejudice to each party (Dhillon at paras. 16-17);
– the right to a fair trial (Dhillon at para. 16);
– the proper administration of justice (Dhillon at paras. 16 and 39; Toronto-Dominion Bank at para. 36);
– the history of the matter, including deliberate delay or misuse of the court process (Toronto-Dominion Bank at para. 38); and
– the fact of a self-represented litigant (Toronto-Dominion Bank at para. 39).

[21] Securing a fair trial on the merits of the action is the ultimate goal. This requires consideration of the nature of the claim. If the claim is novel, then the prospect for success is one factor to consider (Sangha v. Azevedo, 2005 BCCA 184at para. 15 (Sangha)). However, the prospect for substantive success should not be the sole basis for refusal of an adjournment (Toronto-Dominion Bank at para. 41).

[22] The expeditious and speedy resolution of a matter raises the question of whether there has been a previous adjournment and, if so, the reasons for that prior adjournment. If the circumstances have not changed, a subsequent application will likely not be successful (Kendall v. Sirard, 2007 ONCA 468at para. 46).

[23] Timeliness of the request is a factor. An application made at the opening of trial on the grounds that a party cannot be present will be carefully scrutinized as to the effect upon other parties, whether the party’s evidence is crucial, and what other recourse was available (Warner v. Graham (1945), 62 B.C.R. 273 at 277-278 (S.C.)). If the trial is already underway and an adjournment may be indefinite, the court will want to consider whether it is certain that granting an adjournment would resolve the issue that was the cause of the adjournment request (Dhillon at para. 11).

[24] The explanation for the need of an adjournment is an important consideration. It has been said that simple neglect to get properly ready for a hearing, while irksome for the other party, will still usually lead to an adjournment on the theory that the prejudice to the person denied the adjournment will be greater than prejudice to the person who is forced to accept an adjournment (Michel v. Lafrentz, 1998 ABCA 224at para. 12). It would be unjust to decide, without more, that a party who has been less than diligent will be forced to go to trial unprepared (Trumbley v. Belanger, [1994] B.C.J. No. 2178at para. 4 (S.C.)). Failure of a party’s lawyer to take appropriate and/or timely steps should not irrevocably jeopardize the client under the “often applied principle that the sins of the lawyer should not be visited upon the client” provided that relief can be given on terms that protect the innocent adversary as to costs thrown away and as to the security of the legal position he has gained (Graham at para. 10). However, counsel’s simple statement that he is not ready for trial may not be sufficient (W. Thomson & Co. v. British America Assurance Co. (1930), 43 B.C.R. 194 at 196 (C.A.)). The fact of a medical condition that may impair a party’s ability to conduct his case as well as he might does not, in itself, mandate an adjournment, but it is a serious consideration (Sangha at para. 15).

[25] Prejudice to the parties if an adjournment is granted or is not granted must be considered. Any prejudice to be suffered by either side must be weighed and balanced. However, it is non-compensable prejudice that is pivotal (Khimji v. Dhanani (2004), 69 O.R. (3d) 790 at para. 19 (C.A.); Graham at paras. 7 and 9). If the problems raised by an explanation of prejudice can be met by conditions of an adjournment, then, upon consideration of all of the circumstances, an adjournment may be granted (Cal-Wood Door at para. 17).

[26] Overall delay in the history of proceedings may be a factor. Prolonged delay due to tactical considerations may be inexcusable and result in injustice to the other side because a fair trial is no longer possible (Irving v. Irving (1982), 140 D.L.R. (3d) 157 at 160-163, [1982] B.C.J. No. 970 at paras. 8-11 (C.A.) (Irving)). However, a delay forced on a party by negligent solicitors, impecuniosity, or illness is distinguished from tactical delay. The issue is whether the delay is excusable in light of the reason for it and other circumstances (Irving at 163 D.L.R., para. 11 B.C.J.).

40      As referenced in Wright v. Sun Life Assurance Company of Canada, 2014 BCSC 2621, the following are factors that may support the denial of an adjournment:

[6] Factors that may support the denial of an adjournment may include: a lack of compliance with prior court orders; previous adjournments that have been granted to the applicant; previous peremptory hearing dates; the desirability of having the matter decided; and a finding that the applicant is seeking to manipulate the system by orchestrating delay.

41      In Wright, the court noted the factors which may support an adjournment:

[7] Factors which may favour the granting of an adjournment include: the fact that the consequences of a hearing are serious; that the applicant would be prejudiced if the request were not granted; and a finding that the applicant was honestly seeking to exercise

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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