Getting an Adjournment, Not

May 22, 2020 Paul Emile Trudelle Estate & Trust, Litigation Tags: , , 0 Comments

The recent decision of the Ontario Court of Appeal in Laski v. BMO Nesbitt Burns Inc., 2020 ONCA 300 (CanLII) demonstrates the accommodations that will be given to parties in advancing a proceeding, and the limits to that accommodation. It demonstrates that while the courts will be generous to parties requesting adjournments, that generosity will only go so far.

There, the Plaintiff was proceeding with a claim against BMO Nesbitt Burns with respect to their involvement in the setting up of a joint account. The Plaintiff had alleged that the setting up of the joint account was fraudulent. He had already lost his claim against the joint account holder. The court hearing that proceeding found that the joint account passed to the joint account holder by right of survivorship. The Plaintiff sought to continue his claim against BMO. BMO moved to strike this claim.

The matter proceeded on April 23, 2019. The Plaintiff did not appear, but had emailed opposing counsel shortly before the hearing to advise that he was only released from the hospital on April 18, 2019, and could not attend. The motions judge treated the email as a request for an adjournment. The request was denied, and the motion proceeded in the Plaintiff’s absence. The Plaintiff’s claim was dismissed.

The April 2019 adjournment request was not the first adjournment request. The proceeding had a long history. On April 2018, a judge set a return date of September 19, 2018, and dates for filing materials. On September 18, 2019, an adjournment was granted to February 11, 2019, peremptory to the Plaintiff, and revised dates for the delivery of materials were set. The adjournment was at the request of the Plaintiff and the Respondent did not object.

On January 28, 2019, the Plaintiff, a lawyer representing himself, filed a medical note saying that he was unable to work for six months. The motion was adjourned to April 23, 2019. The judge endorsed the record stating that no further adjournments would be granted unless the Plaintiff provided more specific information regarding his health limitations from a qualified doctor.

No materials were ever delivered by the Plaintiff.

The Plaintiff’s claim was dismissed in his absence on April 23, 2019. The Plaintiff appealed.

In dismissing the appeal, the Court of Appeal noted that adjournments would be granted where it was “in the interests of justice”. The judge has broad discretion, and appellate intervention is limited.  The Court also noted that the Plaintiff was already granted two adjournments and had failed to comply with previous orders requiring that he file materials and file a medical note if a further adjournment was being sought. Further, while the Plaintiff filed additional medical evidence on the appeal, there was no motion brought to allow the “fresh evidence”. In any event, the further evidence did not explain why responding materials were not filed as required.

An appeal on the merits was also dismissed.

In the context of adjournments, the court will usually grant an adjournment if the there is a good, substantiated reason for the adjournment, and no injustice will result from the delay. Opposing parties know this, and usually act accordingly. (In this case, the first adjournment request was unopposed.) However, the party seeking the adjournment should put strong evidence supporting the request before the court. Additionally, the requestor should not be in default of any other orders of the court without a good reason.

See also, Suzana Popovic-Montag and Devin McMurtry’s blog on adjournments in estate litigation, here.

Thank you for reading.

Paul Trudelle

P.S. And now for something completely different, check out this remarkable obituary.

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