Adjournment of Trials | Disinherited Vancouver Litigation

Adjournment of Trials

The adjournment of a trial is a discretionary matter to the court, and the discretion must be exercised in accordance with the interests of justice, which in turn require a balancing of the interests of the parties.

The facts of the application for an adjournment are often very important to the application of the legal principles governing same.

One aspect of the overall interests of justice is bringing matters to an expeditious conclusion. In the BC Court of Appeal decision Sidoroff v Joe 76 BCLR )2d) 82 . The court stated at paragraph 10:

The balancing of the interests of justice is a difficult and delicate matter that requires a careful consideration of all of the elements of the case, and certainly one of them is the expeditious and speedy bringing to a conclusion of these matters. So there is no error in principle in stating that as an aspect of the overall interests of justice.

The leading case in British Columbia is Navarro v Doig River First Nation 2015 BCSC 2173, where the court adjourned the trial and reviewed the law relating to same.

The court may order adjournment of a trial by application pursuant to rule 12-1(9) (a) or at a trial management conference, according to Rule 12-2 (9) (1) .

An adjournment under Rule 12-2 cannot be based upon affidavits, but can be based upon the trial briefs and statements of counsel, even if one party objects.

If a trial management judge considers that further evidence by way of affidavit is required, the matter be referred to a chambers judge for application. Reasons for an adjournment at a a trial management conference include that the matter cannot be completed in the time set for trial or that there are outstanding pretrial matters that show that the matter is not ready for trial.

A judge has broad discretion when an adjournment is sought and has wide powers in relation to the order that is made. The discretion must of course be exercised judicially in accordance with appropriate legal principles. The exercise of discretion is a delicate and difficult matter that addresses the interests of justice might balancing the interests of the plaintiff and of the defendant.

There are numerous factors to be considered on an adjournment application. The paramount consideration is the interests of justice and ensuring that there will remain a fair trial on the merits of the action- Graham v Vandersloot 2012 ONCA 60.

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. The natural frustration of judicial officials in opposing parties over delays in processing civil cases must give way to the interests of justice, which favors the claimant having his day in court and a fair chance to make out his case.

Factors or considerations to adjournment trial in no particular order of priority are:

• the expeditious and speedy resolution of matters on their merits;
• the reasonableness of the request;
• the timeliness of the request;
• the right to a fair trial
• the proper administration of justice;
• the history of the matter, including deliberate delay or misuse of the court process;
• the fact of a self represented litigant

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. However, the prospect for substantial succession not be the sole basis for refusal of an adjournment.

Also, for consideration is the question of whether there has been a previous adjournment, and if so, the reasons for that, prior adjournment. If the circumstances of not changed, subsequent application will likely not be successful.

Timeliness of the request is a factor. An application made it 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 parties evidence is crucial, and what other recourse was available. If the trial is already underway in adjournment may be indefinite, the court will want to consider whether to certain that granting an adjournment would resolve the issue that was the cause of the adjournment request.

The explanation for the need of an adjournment is an important consideration. It is been said that simple neglect to get property ready for hearing, while irksome for the other party, will still usually lead to an adjournment on the 30 that the prejudice to the person denied the adjournment will be greater than prejudice to the person who’s forced to accept an adjournment.

Prejudice to the parties. If an adjournment is granted or 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 pivotable. 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, and adjournment may be granted.

Overall delay in the history of proceedings may be a factor. Prolonged delay due to tactical considerations may be inexcusable and resulting injustice to the other side because a fair trial is no longer possible. However, a delay forced on a party by negligence listers, impecuniousity, 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.

The fact that a litigant’s self representative is relevant, but does not entitle him to a pass. The object is to facilitate as far as reasonable the ability of a self represented litigant to fairly present his case on the relevant issues.

The court may impose terms and conditions to an adjournment under rule 13 (1) (19) , however, the terms must be just and all of the circumstances. A party seeking certain terms and condition should generally prove that he or she will be prejudiced in some way by the order.

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 45 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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