Adjournments and balancing of interests

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Getting the balance right on adjournments

In a recent decision of the Ontario Divisional Court (Katebian v. Ontario (Securities Commission), 2025 ONSC 3249), the issue of balancing the public interest in expeditious hearings against the fairness interests of a party requesting an adjournment was reviewed.

This case involved proceedings before the Ontario Securities Commission. About a month before the hearing was to start, the appellants advised that they no longer had counsel and would be self-represented. Then, just about a week before the scheduled hearing, they advised that they had retained new counsel, and filed a motion to adjourn the hearing for seven weeks. In the alternative, they requested that five of the scheduled days of hearing be rescheduled to later dates. The commission denied the adjournment request and granted the alternative request.

Generally, adjournment decisions by tribunals are treated with deference by the courts, “absent an error in principle or a failure to take into account relevant considerations” (Anca International Holding Group Inc. v Zhao, 2024 ONSC 3397 (Div. Ct.), at para. 15).

In Kalin v. Ontario College of Teachers (2005), 2005 CanLII 18286 (ON SCDC), 75 O.R. (3d) 523 (Div. Ct.), the court stated:

[31] A tribunal is entitled to control its own processes and is not obliged to grant an adjournment merely to accommodate the "convenience" of a party…. However, in exercising its discretion as to whether to grant an adjournment, a tribunal is not permitted to act arbitrarily. The tribunal may take into account the public interest and the interest of the tribunal itself in having matters move expeditiously. But, it must take into account all of the relevant factors, including the reasons for the request and the implications of not granting the request and whether the public interest may be adequately protected by alternate means…. [Citations omitted.]

In this case, the appellants relied on the Commission’s decision in Cheng (Re), 2018 ONSEC 13, at paras. 5-6. In Cheng, the Commission commented on the balancing of the objective of proceedings being conducted in a “just, expeditious and cost-effective manner” against the objective of meaningful participation in the hearing by defending parties:

The balancing of these objectives is necessarily fact-based and must take into account the circumstances of the parties and the manner in which they have conducted themselves in the proceeding. In determining whether exceptional circumstances require an adjournment, the dominant factor will usually be the requesting respondent’s ability to make full answer and defence in the circumstances.

The court noted that while the interests of a party requesting an adjournment are important (and in some cases paramount), other relevant interests must be considered in meeting the objective of just, fair and expeditious hearings. Some of those interests include those of witnesses who must rearrange their affairs to attend.

In providing for adjournments only in exceptional circumstances in its Rules, the Commission recognized that in some cases, the interests of the party requesting the adjournment and other factors may be so significant as to justify the disruption caused by an adjournment. However, the court noted that this recognition “does not mean that the interests of the requesting party automatically trump all other considerations”. (As a side note - we may have to retire the word “trump” as it can be triggering for many - and I note that autocorrect always capitalizes it.)

The court found in this case that the Commission had considered the alleged prejudice to the appellants when it declined to grant the adjournment. The Commission noted that the appellants cited the complexity of the matter, the extensive evidentiary record, and the potentially serious consequences as among the grounds for the adjournment motion. The Commission also accepted that because of the timing of their new counsel’s retainer, he found himself in a difficult situation, and had less time to prepare for the hearing than he (and the appellants) would have liked. The court summarized the Commission’s skeptical views on the prejudice:

As it was entitled to do, however, the Commission also considered and weighed the appellants’ reasons for being unable to proceed on the scheduled date… The Commission was clearly skeptical as to why the appellants and their new counsel were in the situation they were in. The Commission noted that: (i) the appellants had been represented throughout, and their original counsel did not advise OSC staff or the Commission until the final interlocutory attendance that he might not appear for them at the hearing; (ii) the appellants gave notice two days later that they intended to appear on their behalf, but offered no reason for this decision; and (iii) two weeks later, they changed their position and decided to be represented, whereupon they retained new counsel rather than reappointing their original counsel, but again offered no reason for doing so. It is clear from the Commission’s reasons that it did not find the reason for the adjournment request to be compelling on the evidence the appellants provided. That assessment was well within the Commission’s discretion.

The court also found, on the facts of the hearing and the outcome, that the appellants’ counsel had a meaningful opportunity to respond to the evidence presented.

Lessons for Tribunals

1. Having the criteria for balancing the public interest in expeditious hearings against the right of meaningful participation set out in Rules or some other policy document is a good practice, as it provides notice to parties of the challenges they face in requesting an adjournment.

2. The interests of witnesses in the rescheduling of hearing dates is a valid consideration in assessing adjournment requests.

3. Alternatives to a full adjournment that will meet fairness requirements, such as the scheduling of witnesses that a counsel may need more time to prepare for, should be explored.

4. The underlying reasons (or lack of) for the adjournment request can be questioned by the tribunal - for instance, why was there a delay in retaining new counsel? (It may not be possible to inquire about the reason for dismissing counsel, due to solicitor-client privilege but an explanation for the delay should be forthcoming).

Links of Interest

Why ChatGPT won’t replace lawyers

The real disruption in law won’t come from some general AI chatbot spouting answers about everything and nothing. It comes from legal LLMs, which are large language models trained exclusively on legal data. The standard narrative that a one-size-fits-all AI will supplant lawyers is not just overhyped; it’s dead wrong. In reality,