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.
P.S. And now for something completely different, check out this remarkable obituary.
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,  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,  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,  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.,  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
Practice Direction Retrospective: Scheduling Appointments, Hearing Matters and Adjournments (Part 1 of 2)
It has now been almost a year since the April 1, 2009 Practice Direction Concerning the Estates List of the Superior Court of Justice in Toronto so I thought I’d start the week with a with a two-part blog containing a few general observations and some practice tips for Toronto. Today’s topic is Scheduling Appointments.
The Scheduling Appointment was created to reduce adjournments and to make the court system more efficient and less costly. It preceded Ontario’s new Rules of Civil Procedure and had many of the same goals in mind, most notably proportionality, which is now an overarching consideration.
A Scheduling Appointment is ten minutes long and is a very versatile mechanism to allow you to get before the Court relatively quickly to obtain assistance. It can be used to “speak to a matter”, to set down a timetable or to obtain a consent order. They can be booked on two days’ notice and generally you can get on the list within a week or two.
Adjourning a Scheduling Appointment
- If a Scheduling Appointment was booked through OSCAR or the Estates office, you can adjourn it administratively by filing your confirmation form cancelling the Scheduling Appointment or adjourning it to another date. It is best to do this as far in advance as possible. Once you file the confirmation form, you cannot easily amend it to get it off the door list. You should check OSCAR the day before the scheduled date to make sure the cancellation has been noted and the matter is not on the list for the day you seek to adjourn. If you fail to appear on a Scheduling Appointment, the Court can set a timetable or a hearing date in your absence.
- You can adjourn the Scheduling Appointment to a specific date and note this on your confirmation form but this is not necessary. If you are in negotiations or are otherwise not ready to address the matter, you should note on your confirmation form that you will bring it back to a Scheduling Appointment when the parties are ready. This will avoid endless re-scheduling of Scheduling Appointments. Since they are quick and easy to get, no need to schedule them way in advance.
- If a Scheduling Appointment has been scheduled by the Court, counsel should appear to speak to an adjournment request. Although the Practice Direction doesn’t specifically say this, it has been the de facto procedure adopted.
Stay tuned for Part 2 in tomorrow’s blog about adjournments of Hearing Matters, and some general tips when appearing in Court on adjournments.
Have a great week!
Sharon Davis – Click here for more information on Sharon Davis.