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Requests to Postpone and Adjourn: Balancing Fairness and Efficiency

Like excuses for not doing homework every adjudicator has seen a variety of requests for a postponement or adjournment of a hearing. In a recent case in the U.S., the lawyer for the accused in a criminal trial asked for an adjournment to attend an Ernest Hemingway lookalike contest. In denying the request, the judge wrote:

Between a murder-for-hire trial and an annual look-alike contest, surely Hemingway, a perfervid admirer of “grace under pressure,” would choose the trial.

At his most robust, Hemingway exemplified the intrepid defense lawyer:

He works like hell, and through it. . . . He has the most profound bravery. . . . He has had pain[] and the kind of poverty that you don’t believe[;] he has had about eight times the normal allotment of responsibilities. And he has never once compromised. He has never turned off on an easier path than the one he staked himself. It takes courage.

Dorothy Parker, The Artist’s Reward, THE NEW YORKER, Nov. 30, 1929, at 28-30 (describing Hemingway). Perhaps a lawyer who evokes Hemingway can resist relaxing frolic in favor of solemn duty.

Or, at least, “Isn’t it pretty to think so?”

Best of luck to counsel in next year’s contest.

However, most stated reasons for adjournment or postponement requests generally fall into these areas:

  • personal reasons such as illness of a party, family member or witness
  • unavailability of a key witness
  • disclosure issues
  • settlement discussions
  • need to obtain legal counsel
  • counsel not available

A postponement refers to the period before the hearing starts whereas an adjournment usually refers to a hearing that is already underway. However, the terms are sometimes used interchangeably.

Requests for postponements, by definition, occur prior to the start of a hearing. As a result, early requests are easier to accommodate. If cases are being scheduled sufficiently in advance of the proposed hearing date, the tribunal can reallocate resources to other proceedings if a postponement is requested.

The challenge arises when a request to postpone or adjourn comes days before a hearing, on the day of the hearing or during the hearing. At this point, an adjudicator must balance fairness to the parties with the public interest in timely justice. Fairness to the parties is the right to be heard and an assessment of the prejudice to any of the other parties in delaying a proceeding. The public interest is in the efficient administration of justice, including the wise use of tribunal resources (public funds).

An adjudicator’s decision to grant an adjournment is discretionary. On judicial review, courts are reluctant to second guess the decision not to grant an adjournment, as the discretion to permit or deny an adjournment “falls squarely within the discretion” of the adjudicator: Senjule v. Law Society of Upper Canada, 2013 ONSC 2817.

The Ontario Court of Appeal set out a non-exhaustive list of procedural and substantive factors to consider when assessing adjournment requests in Law Society of Upper Canada v. Igbinosun, 2009 ONCA 484, at paragraph 37:

Factors supporting the denial of an adjournment:

  • a lack of compliance with prior orders;
  • previous adjournments that have been granted to the requester;
  • previous peremptory hearing dates;
  • the desirability of having the matter decided; and
  • a finding that the requester is seeking to “manipulate the system by orchestrating delay”.

Factors supporting the granting of an adjournment:

  • the consequences of the hearing are serious;
  • the requester would be prejudiced if the request were not granted; and
  • the requester was making honest efforts to avoid an adjournment (for example, honestly seeking to exercise a right to counsel).

Other factors to consider:

  • the timeliness of the request;
  • the reasons for being unable to proceed on the scheduled date; and
  • the length of the requested adjournment.

Many tribunals discourage postponement or adjournment requests. For example the Human Rights Tribunal of Ontario has issued a practice direction on adjournment requests:

… Requests for adjournments, particularly at the last minute, are a significant impediment to fair and timely access to justice. Therefore, the HRTO will only grant adjournments in extraordinary circumstances such as illness of a party, witness or representative. Absent exceptional circumstances, the HRTO will not grant adjournments, even when all parties consent.

Consent of all parties is not sufficient to grant an adjournment, as the tribunal is master of its own proceeding. (This is not the case for private arbitrations, where the public interest is not engaged.)

Techniques for avoiding adjournments

There are a few tools that tribunals can use to avoid adjournment requests. Some of these are the same techniques that teachers use to encourage students to meet deadlines for assignments: timely reminders, handing in of outlines or drafts, firm reminders of the consequences of failing to meet deadlines and the consistent application of those consequences.

Scheduling the hearing: parties should either be consulted on dates or be given an opportunity to provide alternate dates that accommodate their other commitments and restrictions. If dates are set by the tribunal without consultation, the hearing should be sufficiently far in the future so that parties can rearrange any other commitments.

Notice of Hearing: If there are requirements or steps that need to be taken prior to the hearing (such as disclosure or filing of documents), deadlines should be set and clearly identified in the notice of hearing.

Pre-hearing conferences: for complex hearings or those with expert witnesses, consideration should be given to a pre-hearing conference where the order of witnesses can be addressed as well as other potential reasons for adjournment requests (such as disclosure issues).

Hearing reminders: counsel have a professional duty to keep track of deadlines and hearing dates; the rest of the world is not always so organized. A reminder notice a few weeks before a hearing may result in fewer last-minute, panicked requests for postponement. Although an administrative burden on tribunals, the effort and cost of providing a reminder could be repaid by averting unnecessary adjournment requests. Technology can also be used to send electronic reminders as well as allowing parties to automatically add the hearing date and location to their electronic calendars.

Witness confirmation: some tribunals require parties to identify the witnesses they intend to call. If a summons is requested, the tribunal could request proof or confirmation that the summons was delivered at least five days (or some other period of time) prior to the hearing.

Techniques for handling adjournment requests

Being clear on expectations: tribunals should clearly set out (in policies or practice directions) what the criteria for assessing requests are, while recognizing that each request must be assessed on its own merits.

Use of detailed forms: detailed forms for adjournment requests that require a party to identify the reason for the request, whether the other side consents, and other information relevant for an adjournment request can save time in processing requests.

Filing of supporting documents: it is a judgment call by the tribunal as to whether supporting documentation such as a medical note or other proof of the reason for the adjournment request is required in all cases. In cases where there is a lengthy or indeterminate adjournment request for medical reasons, or where there have been numerous requests for adjournments, the adjudicator may want some proof of the merits of that request. If supporting documents are requested, consideration should be given to protecting the privacy of the requester. The other party is entitled to know the reason for the adjournment request, but not necessarily the details.

Consistent application of criteria for granting or denying postponements or adjournments: adjudicators should provide reasons for granting or denying requests that address all of the reasons for the request and that consistently apply the tribunal’s criteria for the granting of postponements or adjournments.

Happy endings

Sometimes denials of adjournment requests have happy endings. In the end, the Hemingway lookalike’s client pleaded guilty and his counsel, Frank Louderback, got to go to the contest: he didn’t win.

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