(416) 916-1387
Appellate Litigation

Legal proceedings take a great deal of time, effort and expense from all involved to get their matter to the adjudication stage. Having set a date for the hearing, it is assumed that this will motivate the parties to be ready on that date.

The administration of justice wants to see matters move along as quickly as possible. The system presumes an interest in the litigants to get the matter over with. This in turn assumes that the preparatory steps leading to the trial will be completed by the parties so that the hearing can proceed as scheduled and be completed in the time allotted for its hearing.

Therefore, in cases where one party seeks an adjournment, it can throw the whole process into disarray. The dilemma for the judge hearing the request is whether to proceed with the hearing as originally planned, although with an unwilling and possibly disadvantaged party, or adjourn the matter and delay its resolution, waste the courts time and resources, and disadvantage those litigants waiting and ready for their trial.

When and How is An Adjournment Granted?

Judges have the discretion to grant adjournments upon request by one or both parties. A judge may, on motion or on their own initiative, acting reasonably, order an adjournment as long as the terms are just. The hearings judge assigned to the matter enjoys a very wide latitude to grant or refuse an adjournment of a scheduled matter.

The Decision is in the Hands of the Court

It is a discretionary decision at its heart. That means the scope of any appellate review is severely curtailed. Still, an appellate court will intervene if the judge fails to take into account all of the relevant considerations and thereby exercise their discretion unreasonably and where the decision is contrary to the interests of justice.

The Competing Interests of the Parties Must be Weighed

Secondly, the exercise of that discretion necessarily involves the judge balancing the competing interests of the parties assuming that at least one of them wishes to proceed and is not consenting to the adjournment. Of equal, and perhaps greater importance, is the court’s interest in the administration of justice and the orderly processing of civil hearings to hear matters as they were originally scheduled.

No Automatic Right to Adjournment

Thirdly, there is no presumptive right to an adjournment based on it being the first requested by that party. While the reasons behind the request may be compelling, and even beyond the control of the requesting party, no party is entitled by right to an adjournment. It is up to the requesting party to clearly state their case and hope the reasons satisfy the court’s requirements. Therefore, parties who are unprepared to proceed due to their own delay may find themselves out of luck.

The hands of the requesting party should be clean. That means that they have done all they could to comply with all orders and directions up to that point. This applies to all litigants whether represented or not.

Self-Representation is Not A Reason for Delay

Finally, and most helpful in these days of increasing numbers of self-represented litigants, the Ontario Court of Appeal (ONCA) has recently proclaimed in Dhatt v. Beer that they:

[S]elf-represented persons are expected to familiarize themselves with the relevant practices and procedures and respect the court process. The appellants had been given lengthy advance notice of the trial date and ample time to retain a lawyer; the appellants retained a lawyer at the last minute only for the purpose of seeking an adjournment; they did not propose a new date; they failed to comply with court orders; and they made no reasonable effort to prepare their case. Thus, the Court saw no error in the trial judge’s refusal to grant an adjournment on the first day of trial.

Those who choose to proceed with litigation as their own representative will be expected to have availed themselves of the resources available to them. Ignorance of the rules will not be viewed favourably by a court being asked to adjourn a matter when all other parties are ready to proceed.

Seek Advice From Experienced Litigation Counsel

Any party to civil litigation should ensure they have skilled representation who will ensure they are prepared to move forward according to the court’s schedule.

At Milosevic & Associates, our team of Toronto corporate commercial lawyers regularly represent clients in litigation matters ranging from straightforward contract and partnership disputes to complex multi-party commercial claims including commercial real estate matters. Over the years, our team of exceptional litigators has seen it all and has successfully fought for our clients’ rights. Our impressive track record speaks for itself.  Call us at 416-916-1387 or contact us online to schedule a consultation.