Sick notes and adjournments

On handling adjournment requests on the basis of illness

“…when action grows unprofitable, gather information; when information grows unprofitable, sleep.”

Ursula K. Le Guin, The Left Hand of Darkness (1969)

Another long weekend is ahead of us. Victoria Day is not much celebrated anymore - Queen Victoria has faded from the consciousness of most Canadians. However, for those of us who enjoy living in Ottawa, she will always have a place in our hearts and minds. She plucked a sleepy little town out of obscurity to make it the capital city. Now it’s a sleepy little city! But a (mostly) livable city. And, of course, this time of year, full of tulips. We have another royal family to thank for those - the Dutch royal family who sheltered here during the Second World War (plus the liberation of Holland).

Illness and adjournment requests

One of the challenges in managing hearing schedules is dealing with adjournment requests based on illness. By definition, most requests for an adjournment because of sickness come close to the last minute - or even on the first day of a hearing. A legitimate claim of illness will always result in granting an adjournment in the following circumstances:

• illness of a party to the dispute;

• illness of the main representative/counsel to a party;

• illness of a main witness if no other witness is available;

• illness of the adjudicator.

The question that may arise in an adjournment request is the legitimacy of a claim of sickness - and what proof is required if there are concerns about that legitimacy.

In my view, claims of sickness from counsel or representatives should generally be taken at face value - unless there is some history of repeated claims either in one proceeding or many. If the claim of sickness for a party or witness has an air of reality to it and is a first-time claim, a similar approach is justified.

If there are concerns about the legitimacy of a claim of sickness, how should a tribunal or adjudicator approach the issue?

The reflexive response is to simply get a “doctor’s note”. Doctors are not fans of providing “sick notes”. The Canadian Medical Association has advocated for the removal of the requirement of some employers for medical notes. The CMA notes:

Sick notes burden physicians with unnecessary administrative tasks, detract from patient care, exacerbate health care system inefficiencies and inequities and may contribute to increased spread of viral illnesses.

In a recent B.C. case, Stoksla v. Judicial Justice Lesperance, 2025 BCSC 828, the applicant’s challenge to a traffic ticket was dismissed because of failure to attend the hearing. The applicant applied to the court for an order striking his conviction because he was sick and not able to attend. He stated in an affidavit that he attempted to file a letter with the court seeking an adjournment. His request for an order was denied, with the following reasons: “No evidence was supplied to confirm illness”.

The applicant sought judicial review and argued that the decision was unreasonable because it presumes that a person can (and should) visit a physician for every illness and produce a physician’s note. Counsel for the applicant noted that many residents of B.C. lack a family doctor and that it is reasonable for those with a cold or flu to stay at home.

The court on judicial review did not agree that every request for an adjournment based on illness required a physician’s note:

[12] …Many forms of evidence might be said to confirm an assertion of an inability to dispute a ticket due to illness. An affiant might, for example, attach dated receipts for cold and flu medication purchases. An applicant might also supply a second supporting affidavit sworn by a family member or roommate who can attest to the fact and nature of the illness experienced. In this specific case, the petitioner might have attached a copy of the letter he attests to having sent in December 2024 to advise the Court that he was sick and unable to attend. The reasons for the Decision did not state a physician’s note was required as confirmation, but rather noted a complete absence of any confirmatory evidence.

The court went on to state that the applicant’s affidavit did not state the “nature or degree of his illness nor otherwise explain how his being “sick” impacted his ability to attend court”.

In the end, the judicial review application was granted because it was not clear that the decision-maker made a finding as to his state of satisfaction on the evidence before him, or was taking the view that there was a stand-alone requirement for confirmation of illness. The court concluded that it was not able to conclude that the denial decision disclosed “a rational chain of analysis and reasonable reasoning process leading up to the conclusion”.

Key takeaways

When a tribunal or adjudicator has concerns about the legitimacy of an illness, a denial of an adjournment request should be based on confirmatory evidence. The tribunal should ask the party requesting the adjournment for an explanation of how the illness impacts the ability to attend the hearing. The evidence to support that explanation does not necessarily require a doctor’s note. Other suitable evidence could be:

• an affidavit/statement from the person claiming sickness;

• an affidavit/statement from a family member, roommate or other person with knowledge of the sickness; and/or

• receipts for medication.

Depending on logistics, there are other ways to accommodate illness without adjourning a hearing. Such steps could include:

• having a witness or party attend through video (depending on the nature of the illness);

• in the case of a sick witness, changing the order of witnesses when it is a multiple day hearing; and

• considering whether the hearing could proceed through written submissions.

Lessons in leadership from jazz

Leadership of any organization is not easy - and there are particular challenges in leading an administrative tribunal. That is because at one level, a Chair is one among equals — just another adjudicator with management responsibilities. A Chair has no authority to tell an adjudicator how to decide a case or how to run their hearing.