Estate litigation involves risk and reward, heartbreak and vindication. Costs and other consequences often flow from the strength of litigants’ positions. Delay, however, is shared equally. In a protracted legal battle, the symptoms of delay – stress, distraction, gloomy foreboding – linger around like a shadow or a bad cold. Wary of these tribulations, the courts are increasingly focused upon smoothing and straightening, and thereby shortening, the road to decisions.

In today’s blog we explore how this shift has affected the granting of adjournments in estate litigation.

Judicial economy is not always served by the refusal of an adjournment. For example, if two proceedings are interrelated, the preliminary matter should be heard first. If an appeal is scheduled before an associated lower court motion, the appeal should be adjourned until the other has been settled, lest the courts “waste limited judicial resources and increase expense for all of the parties” (Mancinelli v. Royal Bank of Canada, [2017] O.N.S.C. 1526 at para. 5).

Reasons for granting adjournments include the ill health of a party, the emergence of new issues, and “to permit the appellants to file fresh evidence” (Morin v. Canada, [2001] F.C.T. 1420 at para. 11). Courts are also more inclined to adjourn when the other party is not prejudiced by such a request. If there is an urgent need for resolution of the dispute – in the estates context, for instance, when an estate has been tied up for years, to the detriment of the beneficiaries – an adjournment could be denied. Other factors which may lead to the denial of a request for an adjournment consist of “a lack of compliance with prior court orders, previous adjournments … the desirability of having the matter decided and a finding that the applicant is seeking to manipulate the system by orchestrating delay” (The Law Society of Upper Canada v. Igbinosun, [2009] O.N.C.A. 484 at para. 37).

Long waits and swollen court bookings have influenced today’s judicial decision-making. Judges are more inclined, progressively, to punish vexatious litigants, encourage parties to settle, and employ other strategies that are conducive to easing the strain on the courts. Much as the courts have emphasized the need to expedite decisions, however, the adjournment is still a mainstay in the judicial tool belt:

Perhaps to the chagrin of those opposing adjournments and indulgences, courts should tend to be generous rather than overly strict in granting indulgences, particularly where the request would promote a decision on the merits. (Ariston Realty Corp. v. Elcarim Inc., [2007] CanLII 13360 (O.N.S.C.) at para. 38).

In other words, fast adjudication should not compromise fair adjudication.

Enjoy the rest of your day, and thanks for reading.

Suzana Popovic-Montag and Devin McMurtry