Adjournment of a Trial – Factors to Consider

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When applying to Court to adjourn a scheduled trial date, be aware of the factors the Court will consider. These factors were recently reviewed in Negus v. Yehia, 2017 BCSC 1822.  As noted in this decision:

The law is not in issue. Both parties referred me to the decision in Navarro v. Doig River First Nation, 2015 BCSC 2173, where Madam Justice Dillon discusses the issues at paras. 19 and 20 as follows:

[19]      There are numerous factors to be considered on an adjournment application. However, the paramount consideration is the interest of justice in ensuring that there will remain a fair trial on the merits of the action (Cal-Wood Door [v. Olma, [1984] B.C.J. No. 1953 (C.A.)] at para. 13; Graham v. Vandersloot, 2012 ONCA 60 at para. 12. Because the overall interests of justice must prevail at the end of the day, courts are generous rather than overly strict in granting adjournments, particularly where granting the request will promote a decision on the merits [(Graham at para. 12)]. The natural frustration of judicial officials and opposing parties over delays in processing civil cases must give way to the interests of justice, which favours a claimant having his day in court and a fair chance to make out his case [(Graham at para. 12)].

[20]      Other factors or considerations include (in no particular order of priority):

  • the expeditious and speedy resolution of matters on their merits …;
  • the reasonableness of the request …;
  • the grounds or explanation for the adjournment …;
  • the timeliness of the request …;
  • the potential prejudice to each party …;
  • the right to a fair trial …;
  • the proper administration of justice …;
  • the history of the matter, including deliberate delay or misuse of the court process …; and
  • the fact of a self-represented litigant ….

[Citations omitted.]

[27]         The object of the Supreme Court Civil Rules is the just, speedy, and inexpensive determination of proceedings. The trial of this matter has already been adjourned twice. The claimant submits that although the adjournments were by consent, they were driven by the actions and inactions of the respondent Mr. Yehia. Despite Mr. Yehia’s denial, I am satisfied that that is at least largely the case.

[28]         I conclude that a fair trial can proceed, despite the concerns about the state of the expert evidence. Trial judges are very experienced in weighing and dealing with conflicting expert evidence. A trial judge will have the benefit of the appraisal reports and critiques of those reports.

[29]         Mr. Blanchette has had the opportunity to review the critiques and even if he cannot produce response reports, he can certainly deal with the issues in cross-examination.

[30]         Mr. Bowie has yet to deliver a report, but the valuation of the companies will no doubt turn on the values of the properties, and his report can be weighed by the trial judge in the context of his or her conclusions on those values. If there is some prejudice that arises due to the late production of the report, that is for the trial judge.

[31]         That Mr. Yehia will be self-represented is a factor to be considered, but it is not determinative. I have concluded that he has been the author of his own misfortune in that regard. He is a successful businessman. He has managed significant businesses. I conclude that he is more than capable of dealing with this litigation.

[32]         I note, as well, that the corporate respondents are not without legal advice, as the corporate respondents have counsel who has been involved in this litigation for quite some time. I note that Mr. Yehia appears to be the sole director and shareholder of the corporate respondents.

[33]         I conclude that Mr. Yehia’s lack of personal representation will not impact on his ability to have a fair trial on the merits.

[34]         There is no explanation for the delay in bringing this application, despite the fact that there has been almost two months since Mr. MacLean stepped aside as counsel.

[35]         There is clear prejudice in any delay of litigation. Although there is no direct evidence of prejudice to the claimant with respect to this application, I accept that the claimant did not have time to respond to various assertions made in the respondent’s materials as they were delivered late.

[36]         Here, the claimant was a stay-at-home mother. I gather she is not employed, although spousal and child support have been ordered and some distributions from capital have been made.

[37]         There will clearly be prejudice to her if this matter is adjourned again, prejudice that will not be compensated for by any costs award that could be made.

[38]         Further, Mr. Yehia has submitted that he is impecunious. I do not understand the basis for this assertion, other than perhaps a cash flow issue. I did note, however, his assertions that the litigation was interfering with his ability to properly pursue his business opportunities. If there is merit to this assertion, that too militates against adjourning this trial.

[39]         There will, in my view, be a benefit to all parties in having this litigation behind them. Delay will only run up the costs of the litigation even more.

[40]         Further, although I have had only limited time to review the evidence here, it certainly appears to me that Mr. Yehia has been less than cooperative in advancing the litigation and has resisted efforts to have things dealt with in a timely and appropriate way. That may be an arrow in his personal litigation strategy, which appears to have been carried out as a series of battles in an overall war. That, however, is not how family disputes are intended to be resolved, and the court cannot condone that approach.

[41]         After a careful consideration of the balancing required, I conclude that the application of Mr. Yehia must be denied.

[42]         I will hear you on costs.

[43]         MR. JELETZKY:  Your Honour, may I speak to another term?

[44]         THE COURT:  Yes.

[45]         MR. JELETZKY:  The additional term I would speak to is that Mr. Yehia have liberty to reapply basically on two days’ notice. There are reports coming in and we don’t know which they are going to be. So that I guess the additional term I would seek is that Your Honour grant him liberty to reapply on two days’ notice and without prejudice to apply to the trial judge to adjourn.

[SUBMISSIONS ON LIBERTY TO APPLY AND COSTS]

[46]         THE COURT:  Thank you. With respect to the application or reapplication issue, as I have already said in my reasons, if there is some prejudice that arises due to the late production of Mr. Bowie’s report, that is for the trial judge. I am not presuming to tie the trial judge’s hands in any respect with respect to that. However, in my view, having a reapplication of the adjournment application prior to the trial would be counterproductive. The parties simply must turn their attention now to preparing for the trial and getting on with things.

[47]         As to costs, I am satisfied that the claimant should have her costs of today in any event of the cause. I hear, Ms. Basran, that another day was thrown away. That really is not the fault of Mr. Yehia. The costs will go then, lump sum, $2,500 including disbursements and taxes.