Trials can generally be adjourned on consent. Adjournment requests get more complicated where the other side does not agree.
Adjournments on Consent
For a variety of reasons, parties may agreed to adjourn a trial on consent. One side will usually request the other side’s consent by email or letter, setting out the reason for an adjournment. This correspondence may be important down the road if there is no consent.
If consent is granted, the parties can usually deal with the adjournment through the Trial Coordinator’s office, at a Trial Schedule Court appearance or at a pre-trial conference.
Contested adjournments are trickier to deal with, especially when they are sought close to trial. A decision on whether or not to adjourn a trial ultimately rests with the trial Judge. The decision is highly discretionary.
A Judge can impose terms of an adjournment, including costs and that the adjournment be peremptory on one or all parties, meaning that the the party requesting the adjournment or all parties will not be permitted a further adjournment barring exceptional circumstances beyond their control.
Rule 52.02 of the Rules of Civil Procedure is the key rule for both civil and family trials, which reads:
A judge may postpone or adjourn a trial to such time and place, and on such terms, as are just.Rule 52.02
The above rule reflects the Court’s inherent power to control its process. The Judge can determine when the next trial date will be. The Judge can determine any terms of the adjournment.
A request for an adjournment should be made as early as possible. If contested, it is appropriate to bring a motion for an adjournment, so the Judge has an evidentiary record in support of the request. Correspondence relating to the request to adjourn on consent will likely find its way into the motion record, as will evidence in support of the reasons for the request to adjourn the trial.
Factors to be Considered
According to the Court of Appeal for Ontario:
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.Bhimji Khimji v. Dhanani, 2004 CanLII 12037 (ON CA), https://canlii.ca/t/1gd3j at paragraph 14
The Superior Court identified the following factors in considering an adjournment (Ariston Realty Corp. v. Elcarim Inc., 2007 CanLII 13360 (ON SC), <https://canlii.ca/t/1r7zd at paragraph 34):
- the overall objective of a determination of the matter on its substantive merits;
- the principles of natural justice;
- that justice not only be done but appear to be done;
- the particular circumstances of the request for an adjournment and the reasons and justification for the request;
- the practical effect or consequences of an adjournment on both substantive and procedural justice;
- the competing interests of the parties in advancing or delaying the progress of the litigation;
- the prejudice not compensable in costs, if any, suffered by a party by the granting or the refusing of the adjournment;
- whether the ability of the party requesting the adjournment to fully and adequately prosecute or defend the proceeding would be significantly compromised if the adjournment were refused;
- the need of the administration of justice to orderly process civil proceedings; and
- the need of the administration of justice to effectively enforce court orders.
The Court of Appeal for Ontario looked at factors relating to trial adjournements and concluded:
Factors which 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. Factors which may favour the granting of an adjournment include the fact that the consequences of the 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 his right to counsel and had been represented in the proceedings up until the time of the adjournment request. In weighing these factors, the timeliness of the request, the applicant’s reasons for being unable to proceed on the scheduled date and the length of the requested adjournment should also be considered.The Law Society of Upper Canada v. Igbinosun, 2009 ONCA 484 (CanLII), https://canlii.ca/t/23zpw at paragraph 37
If you are seeking to adjourn a trial and/or need some last minute trial consulting work, please do not hesitate to get in touch. Our trial experience enables us to advise on important decisions close to trial, including judgment calls on the strengths and weaknesses of an adjournment request as well as advice on last minute trial preparation.
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