“The decision whether to grant an adjournment is highly discretionary. Roberts v Miller 2015 ONCA 500 (ON CA); Martin v Sansome 2014 ONCA 14 (ON CA); D.M. v. CAS of Ottawa, 2021 ONSC 8360 (SCJ).
An adjournment request must be considered in the context of the primary objective of the Family Law Rules which provides:
Primary objective
(2) The primary objective of these rules is to enable the court to deal with cases justly. O. Reg. 114/99, r. 2 (2).
Dealing with cases justly
(3) Dealing with a case justly includes,
(a) ensuring that the procedure is fair to all parties;
(b) saving expense and time;
(c) dealing with the case in ways that are appropriate to its importance and complexity; and
(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases. O. Reg. 114/99, r. 2 (3).
Duty to promote primary objective
(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective. O. Reg. 114/99, r. 2 (4).
In Lakhtakia v Mehra 2022 ONSC 201, in an Appendix, Justice Pinto summarized the law with respect to adjournments:
In Konstan et al. v. Berkovits et al., 2021 ONSC 6749, at paras. 14-15, Diamond J. set out the legal test that a trial judge must apply when faced with an adjournment request. Although Konstan was a civil case and not a family law decision, I find that the same test applies:
[14] All parties agree that a judge’s decision to adjourn or not adjourn a trial is highly discretionary. In Ariston Realty Corp. v Elcarim Inc. 2007 CanLII 13360 (ONSC), Justice Perell set out a helpful list of factors and principles for the Court to consider when exercising its discretion to grant or refuse an adjournment:
“Depending on the circumstances of each case, to judicially exercise the discretion to grant or refuse an adjournment, a judge or master may need to weigh many relevant factors including:
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- 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.
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Both parties also rely upon the following comments of the Court of Appeal for Ontario in Turbo Logistics Canada Inc. v. HSBC Bank Canada 2016 ONCA 222 (CanLII):
“The applicable principles are well understood. They were expressed by this court in Khimji v. Dhanani (2004), 2004 CanLII 12037 (ON CA), 69 O.R. (3d) 790, per Laskin J.A. dissenting, but not on this point, at para. 14:
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. In any particular case several considerations may bear on these interests. A trial judge who fails to take account of relevant considerations may exercise his or her discretion unreasonably and if, as a result, the decision is contrary to the interests of justice, an appellate court is justified in intervening. In my opinion, that is the case here.
Laskin J.A. observed that in refusing an adjournment, the trial judge should have taken into account the goal expressed in r. 2.01(1)(a), namely “to secure the just determination of the real matters in dispute” and the resolution of cases on their merits.
Khimji was considered by this court in Toronto-Dominion Bank v. Hylton, 2010 ONCA 752, which adopted the above statement. This court observed, at para. 36, that “[t]he presiding judge has a well-placed and a well-established discretion to decide whether an adjournment request ought to be allowed or denied.” After setting out the above statement, the court added, at para. 37:
Laskin J.A.’s passage makes it clear that, in reviewing highly discretionary decisions such as whether to allow a request for an adjournment, the inquiry must focus on whether the court below took account of relevant considerations in balancing the competing interests and made a decision that was in keeping with the interests of justice.
The court added that factors to be considered include the reason for the adjournment request, the history of the matter, the prejudice to the party resisting the adjournment and the consequences to the requesting party of refusing the request.”
Khimji v. Dhanani was further considered by the Court of Appeal in Toronto-Dominion Bank v. Hylton, [2010] O.J. No. 4725 where the court stated:
[38] Against the backdrop of the nature of the proceeding and the parties to the proceeding, the court should consider the evidence and strength of the evidence of the reason for the adjournment request, the history of the matter including deliberate delay or misuse of the court process, the prejudice to the party resisting the adjournment and the consequences to the requesting party of refusing the request.
[39] Once again, the fact that a party is self-represented is a relevant factor. That is not to say that a self-represented party is entitled to a “pass”. However, as part of the court’s obligation to ensure that all litigants have a fair opportunity to advance their positions, the court must assist self-represented parties so they can present their cases to the best of their abilities. Linhares de Sousa J. provided a helpful list of ways to assist self-represented litigants in Kainz v. Potter (2006), 2006 CanLII 20532 (ON SC), 33 R.F.L. (6th) 62 (Ont. S.C.), at para. 65:
[N]umerous Court decisions have reiterated the principle again and again, that self-represented parties are entitled to receive assistance from an adjudicator to permit them to fairly present their case on the issues in question. This may include directions on procedure, the nature of the evidence that can be presented, the calling of witnesses, the form of questioning, requests for adjournments and even the raising of substantive and evidentiary issues. [Emphasis added.]
In D.M. v. CAS of Ottawa, 2021 ONSC 8360 the Divisional Court focussed on procedural fairness and due process in summarizing the considerations in relation to adjourning a hearing:
[240] Whether to grant or refuse an adjournment of a hearing is a matter of judicial discretion. Factors for a court to consider in deciding to grant or refuse an adjournment, include:
(a) the overall objective of a determination of the matter on its substantive merits;
(b) the principles of natural justice;
(c) that justice not only be done but appear to be done;
(d) the particular circumstances of the request for an adjournment and the reasons and justification for the request;
(e) the practical effect or consequences of an adjournment on both substantive and procedural justice;
(f) the competing interests of the parties in advancing or delaying the progress of the litigation;
(g) the prejudice not compensable in costs, if any, suffered by a party by the granting or the refusing of the adjournment;
(h) 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;
(i) the need of the administration of justice to process civil proceedings in an orderly manner; and
(j) the need of the administration of justice to enforce court orders effectively. That a party is self-represented is a relevant factor in the exercise of the court’s discretion to grant or refuse an adjournment because a part of the court’s obligation is to ensure that all litigants have a fair opportunity to advance their positions.”