Civil Litigation

Court Declines to Grant Application for Adjournment Once Civil Trial Has Commenced

May 4, 2023

Stack of documents representing refusal at trial for adjournment to replace an expert witness

In certain circumstances, Alberta law allows a party in a civil trial to request that the proceedings be postponed by filing an application for adjournment. Generally, an adjournment is intended to ensure that the trial is fair to both parties and that their legal rights are respected.

The law gives judges wide discretion to accept or refuse an application for adjournment. There are a series of factors which the court will consider before deciding whether or not to grant the application. These factors were considered in detail in a recent case before the Court of King’s Bench of Alberta.

Litigation Arose Over Claims of Negligent Medical Care

In Baldock Estate v. Abou Reslan, the plaintiffs claimed that the defendant radiologist provided negligent medical care to Branden Baldock, an infant who experienced a variety of medical complications shortly after his birth. They alleged that, had Dr. Reslan performed his duties competently, he would have identified an abnormality in the infant’s CT scan and recommended further diagnostic imaging, which could have saved the infant’s life.

The plaintiffs filed a statement of claim on August 15, 2003, naming Dr. Reslan as one of four defendants.

Plaintiffs Seek to Introduce Medical Expert Report as Evidence

In the course of the proceedings, there were several amendments to the pleadings which, in addition to the complex nature of the litigation, resulted in a lengthy procedural history. In October 2019, a Civil Trial Coordinator set the trial date for February 27, 2023. In September 2022, one of the doctors that the plaintiffs had retained to provide an expert opinion notified them that he was retiring from the profession and would no longer be providing expert opinions.

The plaintiffs retained Dr. Thornton to replace the retiring doctor. On November 29, 2022, a report by Dr. Thornton was served on the defendants. Approximately 45 days before the trial began, the defendants filed a notice of objection concerning Dr. Thornton’s expert report.

Court Rules on Admissibility of Expert Evidence

At trial, counsel for the plaintiffs made submissions regarding Dr. Thornton’s admissibility as an expert witness. While recognizing that he was an internationally renowned expert in pediatric endocrinology, the Court noted that he had no training or experience in Canada. As a result, his evidence was only ruled admissible in relation to one of the several issues before the Court, as he did not have specialized knowledge of the applicable practices and standards relevant in Canada.

After the Court decided on this point, counsel for the plaintiffs made an application for adjournment of the trial.

Court Explains Test for Adjournment After Trial Has Begun

Under Rule 8.6(2) of the Alberta Rules of Court, an application for an adjournment, after a trial has commenced, may only be granted with leave of the presiding judge. The Court cited the Supreme Court’s decision in Barrette v. The Queen in describing how this discretion should be exercised:

“It is true that a decision on an application for adjournment is in the judge’s discretion… This right of review is especially wide when the consequences of the exercise of discretion is that someone is deprived of his rights…”

The Court then considered eleven different factors before determining whether they would grant the adjournment application, as set out in Royal Bank of Canada v Place. In its analysis, the Court focused on three of the factors in particular.

Factor 1: Courts Should Make a Just Determination and Decide Cases on Their Merits

The first factor the Court considered was the idea that courts should make a just determination of the real matters in dispute and they should decide cases based on their merits. The plaintiffs submitted that forcing the parties to proceed with the trial in the absence of Dr. Thornton’s reports would substantially prejudice them and inhibit the Court’s ability to decide the case on its merits.

Court Holds that Failing to Grant an Adjournment Would Not Prejudice Plaintiffs

To support their position, the plaintiffs cited several Alberta cases in which courts had granted an application for an adjournment because failing to do so would prejudice the applicants’ positions at trial. However, the Court distinguished those decisions from the case at bar. In particular, the decision to grant an adjournment in those cases was made before the trial commenced.

In this case, the application for adjournment was made after the trial had begun. In particular, it arose in response to a ruling on the admissibility of expert evidence on which the plaintiffs sought to rely. According to the Court, “to grant an adjournment so that the plaintiffs can retain a replacement expert would effectively allow the plaintiffs to effectively reverse a ruling that was not in their favour.”

Factor 2: The Prejudice Caused by Granting or Denying the Adjournment

The second factor the Court considered was the nature of the prejudice caused by granting or denying the adjournment. Referring to the test in Royal Bank of Canada v. Place, the Court explained that the prejudice suffered by either party must be weighed and balanced.

The plaintiffs submitted that they would be significantly prejudiced if an adjournment was not granted. Further, the plaintiffs argued that the defendants would not suffer any prejudice that could not be compensated for with costs.

Court Holds That an Adjournment Would Prejudice the Defendants

The Court affirmed that, once a trial begins, the parties must have their case ready to present the best evidence to the Court. An adjournment should not be granted simply to accommodate a party when their evidence is not as expected. Allowing the adjournment in this case would prejudice the defendants because it would give the plaintiffs multiple opportunities to present expert evidence.

Factor 3: The Applicant’s Explanation for Not Being Ready to Proceed

The third factor the Court considered was the explanation offered by the applicants for requiring an adjournment. In this case, the plaintiffs’ explanation for requesting an adjournment was based on both the defendants’ objection to Dr. Thornton’s report and the Court’s ruling on its inadmissibility being unexpected.

According to the Court, the plaintiffs ought to have reasonably expected that they would have to meet the onus of establishing that Dr. Thornton was qualified as an expert in the areas for which he was tendered. Alberta law requires a party introducing expert evidence to show that the expert is qualified, and this obligation exists whether or not the opposing party objects.

For the above reasons, the Court denied the plaintiffs’ application for an adjournment.

Contact the Civil Litigation Lawyers at DBB Law in Calgary for Guidance and Representation in Your Dispute

The trusted litigation lawyers at Dunphy Best Blocksom LLP in Calgary have extensive experience representing clients in various civil disputes. We take a client-centred approach to every file and use our skills and expertise to develop the best possible solution tailored to your specific needs. Whether you are dealing with a property dispute, estate administration, or have questions regarding an employment issue, our lawyers will assist you through every stage of the process. To schedule a consultation with one of our team members, contact us online or call us at 403-265-7777.

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