Introduction:

An adjournment is a postponement of a legal proceeding. The request is made by one of the parties to the litigation. The request can be met with agreement or opposition. Even with consent, an adjournment is not made as of right and must be judicially sanctioned.

In order for a court to allow an adjournment, it must be satisfied that the grounds for doing so are legitimate and that the administration of justice would be better served with a delay. What then are the tests or criteria that must be considered?

Considerations:

The Ontario Superior Court of Justice (OSJ) in Ariston Realty Corp. v. Elcarim Inc. summarized the factors to be considered on an adjournment as follows:

• the overall objective of a determination of the matter on its substantial 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 substantial 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 for the administration of justice to orderly process civil proceedings; and
• the need for the administration of justice to effectively enforce court orders.

A similar list was set out by the Ontario Court of Appeal (ONCA) in Toronto-Dominion Bank v. Hylton, wherein it was held that when weighing an adjournment, a 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; and
• the prejudice to the party resisting the adjournment and the consequences to the requesting party.

A Case on Point:

In Jordan v. CIBC Mortgages Inc., the adjournment request was made by plaintiff’s counsel in a proposed class proceeding. Similar actions had been commenced in Quebec and British Columbia. The claims in those other jurisdictions, however,  at the time of issue, both confined the class to be from residents in those provinces. The Ontario action was national in scope.

The plaintiffs advanced that two recent unanticipated events had caused the request for a stay/adjournment:

1. Lead counsel in the British Columbia action had died on January 30, 2018. It was anticipated that counsel with an experienced class-action firm in British Columbia will be retained although they were not yet retained as at the date this motion was argued.
2. In April 2018, the Attorney General of British Columbia announced proposed amendments to the province’s class proceedings legislation which would enable certification of national classes on an “opt-out” basis.

The OSJ in deciding whether to adjourn the certification motion noted that:

1. Plaintiffs’ counsel elected to proceed with a proposed national class in Ontario. It communicated that decision through its pleadings in the various actions and in discussions with defence counsel both outside and before the court;
2. The defendant acted in reliance upon the plaintiffs’ choice of method of proceeding;
3. Counsel entered into an agreement as to the schedule and steps to be taken to get to certification. The plaintiffs’ sudden shift in approach comes well down that road and on the virtual eve of the certification motion;
4. Everything was in place to argue the certification motion without further delay;
5. This action is already nearly seven years old;
6. The death of lead counsel in British Columbia was well known to plaintiffs’ counsel in January 2018 but they did nothing to shift their litigation strategy until the summer of 2018. I am at a loss to understand how this unfortunate fact has any bearing on the decision to stop the Ontario proceeding in favour of British Columbia in any event;
7. As at the date this motion to adjourn was argued, experienced British Columbia class counsel had not yet been engaged despite the passage of almost seven months;
8. It is well-accepted that the size of a class is typically larger where people have to opt out rather than opt-in. The size of the class has a direct bearing on the degree of risk on the defendant. It strikes me as likely that the main reason for proceeding with the proposed national class in Ontario is the presence of an “opt-out” model. The plaintiffs’ recent decision to stay the Ontario proceeding is directly and inextricably tied to the proposed amendments of the British Columbia legislation. This strikes me as forum shopping. There may well be circumstances where such decisions are appropriate and timely such as at the outset of the litigation; however, in this case, the Ontario certification process is near completion and the proceeding has already suffered significant delay;
9. Moreover, there are still uncertainties facing the members of the proposed Ontario class if transplanted into the British Columbia action. For example, will the legislation come into effect on October 1 or not? Will the court amend the class definition in Sherry to include those from Ontario and elsewhere in Canada?;
10. By counsel’s own admission, the shift to British Columbia will mean acceptance of the narrowed claim arising from the British Columbia Court of Appeal’s decision. Plaintiffs’ counsel indicated that that will foreclose one or more of the claims that might be available in Ontario; and
11. With respect to the potential for conflicting decisions, I note that that risk was inherent in the strategic decision made at the outset to pursue three actions instead of two. It strikes me as somewhat disingenuous to now seize upon a risk counsel willingly accepted to justify a tactical decision made well down the road counsel chose.

As a result, the adjournment was not granted.

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