To Adjourn Or Not To Adjourn, That Is The Question

Scheduling discipline hearings is difficult. In order to get to a hearing, the regulator often needs to coordinate the schedules of many very busy people. Once the regulator finally has all those people together, it can be frustrating to then receive a request for an adjournment.

Most professional regulatory legislation does not have specific direction addressing adjournment applications. So what is the best way to deal with requests for adjournments?

The regulator is not required to grant every adjournment request, but it must carefully consider each request, and must grant an adjournment when appropriate.

General Principle

Although the decision to grant an adjournment is discretionary, the case law has established that an adjournment must be granted where the failure to adjourn would result in a breach of natural justice. Natural justice is the principle that all parties have a right to a fair hearing. A fair hearing is one where all parties are able to put their cases squarely before the decision-maker, or to respond fully to the evidence and arguments of other parties. If a party makes an adjournment request because he or she cannot fully or adequately present his or her case, the tribunal may be required to grant the adjournment.

In exercising its discretion, a tribunal will need to determine:

1. the reason for the adjournment (i.e. is the reason legitimate?); and

2. the impact on the person requesting the adjournment (i.e. will the denial of the adjournment impact the person's ability to present his/her case?).

Summary of Recent Cases

The general principle is easy to articulate, but it can be difficult to apply, given that many court decisions appear to be inconsistent.

For example, in Law Society of Upper Canada v. Igbinosun the court held that the failure to grant an adjournment resulted in a breach of natural justice.1 In that case, professional conduct proceedings had been ongoing for 6 years, with previous adjournments having been granted. The regulator scheduled the continuation of the hearing on a peremptory basis (meaning no further adjournments would be granted) despite knowing that legal counsel for the member intended to remove himself from the file. The member retained new legal counsel in the interim. That new legal counsel was not available on the scheduled date for the continuation of the hearing. The new legal counsel provided alternative dates when he was available in the near future, but the tribunal proceeded on...