CHAPTER 2

THE HEARING

2.3 Preliminary Objections

2.3.3 Motion for Adjournment

Depending on the circumstances, the audi alteram partem rule may mean that one of the parties has the right to request an adjournment. Since the tribunal is responsible for its procedure, it has the power and the duty to determine whether an adjournment is truly necessary or merely abusive; the courts will intervene only if the refusal of an adjournment is unjust or arbitrary.^{331 Citation 331} The Superior Court of Quebec summarizes the state of law: "An examination of the decisions of our courts shows that a decision to refuse an adjournment will be found to be unfair and arbitrary when it causes definite irreparable harm to the party requesting it, as long as that party is not at fault."^{332 Citation 332}

In another decision, which involved the hearing of an application for union certification, the appellant was not able to attend the hearing since he had not been informed of it; he was away for a long period.^{333 Citation 333} One of his employees requested an adjournment, which the tribunal refused to grant. It was held that the refusal of the adjournment caused serious harm to the appellant and, since he had not been informed of the hearing date, he had a valid reason for not attending and not having informed the tribunal.

Similarly, the Superior Court of Quebec held that the rules of natural justice had been breached by the Conseil des services essentiels [essential services board] when it refused the applicant's request for adjournment, since the notice had been given to him only an hour and 45 minutes before the hearing. The applicant was entitled to an adjournment to be able to prepare adequately, that is, to find a lawyer and to be able to respond to the opposing arguments. A decision to the opposite effect would have caused him serious harm.^{334 Citation 334}

An adjournment will be granted whenever a refusal would cause definite and irreparable harm to the party seeking it. Thus, in one case,^{335 Citation 335} a municipal by-law was challenged before the Ontario Municipal Board by a number of individuals. On the first day of the hearing, after the representative of the city had informed the board that his submissions would take until the following day, the representative of the applicants had accordingly allowed his witnesses to leave. A few hours later, however, the representative of the applicants was asked to submit his evidence; since he could not proceed he requested an adjournment but was refused. On this question, the Divisional Court of Ontario stated:

Moreover, this principle has been applied in several other judicial decisions.^{337 Citation 337}

The courts have refused requests for adjournment for various reasons. In 1989, a majority of the Supreme Court^{338 Citation 338} refused to grant an adjournment to a person who sought a permit to remain in Canada. This person sought an adjournment to continue certain approaches that had been made to the Minister. After establishing that the adjournment depended on a discretionary power and that the exercise of this power must comply with natural justice, the Court stated that the existence of another parallel remedy did not give the individual an automatic right to an adjournment.^{339 Citation 339} However, an administrative tribunal does not necessarily have to grant an adjournment where parallel criminal proceedings have been instituted.^{340 Citation 340}

The Quebec Court of Appeal refused a request for adjournment on the ground that the appellant had made an excessive number of requests and had already been granted three adjournments; the Court held that the appellant had had ample opportunity to prepare a defence.^{341 Citation 341}

However, the case law requires that the party requesting the adjournment not have committed any fault, negligence or carelessness. At the hearing of an application for union certification, the applicant had requested an adjournment on the ground that the union representative, who alone was in a position to act appropriately, had been detained elsewhere on business. The board refused the adjournment and noted that the party had been informed long before the date of the hearing and had not informed the tribunal of the fact that the date was not suitable. The applicant challenged this decision in the Ontario Court of Appeal, which refused to intervene because the decision to refuse the adjournment was justified by the fact that the party in question knew in advance that the date of the hearing was not suitable and consequently, since he had not done anything, he was responsible for the situation.^{342 Citation 342}

Similarly, the Federal Court held that the Appeal Board of the Public Service Commission had properly refused to grant an adjournment to a party which was dissatisfied with the tribunal's attitude and withdrew from the hearing without just cause.^{343 Citation 343} The Court held that the decision in which the Umpire refused to adjourn the hearing was justified since the applicants argued that they had retained counsel only a few days prior to the hearing although they had received notice of the precise date 23 days earlier.^{344 Citation 344}

It emerges from these decisions that an administrative tribunal only rarely grants an adjournment when notice of hearing has been given within a reasonable time. If the notice allows the party to make all the changes in schedule required by the hearing date, an adjournment will be refused. A request for adjournment should not be designed to remedy a defect in the due diligence of the parties.^{345 Citation 345}

An administrative tribunal's refusal to grant an adjournment may accordingly constitute a breach of the audi alteram partem rule if the adjournment is necessary for the production of evidence or a full defence, if the party requesting it is not itself at fault, or if serious harm could well be caused to this party if proceedings commenced immediately, unless the tribunal considers it urgent in the circumstances to proceed promptly.

Before a Board of Referees, granting an adjournment is in principle a discretionary power that must be exercised in accordance with the rules of natural justice.^{346 Citation 346} The board may only grant an adjournment when there are "serious reasons".^{347 Citation 347} Thus, an adjournment must normally be granted where the claimant makes it known in advance that he or she cannot attend the hearing for a valid reason.^{348 Citation 348} The appellant is entitled to an adjournment when he or she receives the docket late,^{349 Citation 349} when he or she is taken by surprise by the filing of an important document at the hearing^{350 Citation 350} and when there is additional important information to submit to the board.^{351 Citation 351} An adjournment will be granted if the appellant's representative can argue that an important element of the evidence is not yet available, such as the transcript of a criminal trial relating to the questions in dispute and likely to influence the result.^{352 Citation 352} In general, an adjournment must be requested, otherwise the board cannot be criticized for not granting one.^{353 Citation 353}

However, a party may not argue that it is entitled to an adjournment if the party is at fault, for example, by having given the Commission a wrong address.^{354 Citation 354} As the Umpire has noted, it must be borne in mind that "these appeals to the boards of referees number in the thousands each year in Canada and the boards cannot always accommodate the dates preferred by counsel";^{355 Citation 355} however, some claimants or their counsel make exaggerated demands with respect to their availability. A party that delays in retaining counsel does not have the right to an adjournment for that reason alone.^{356 Citation 356}

A Board of Referees is not required to adjourn until the grievance submitted by the claimant to an arbitration tribunal has been heard and decided.^{357 Citation 357}

Requests to the board for adjournment before the hearing opens or when it opens or even during the hearing are fairly frequent. Whether the decision is made by the chairperson or the board, it must be informed by a concern to ensure that the parties receive a full and complete hearing.^{358 Citation 358} An initial ground that was found to be valid was that the claimant was not able to attend the hearing for a serious reason.^{359 Citation 359} The fact that the claimant received the record late may also offer sufficient reason for an adjournment.^{360 Citation 360} Absence because the claimant was studying abroad has also been found to be valid.^{361 Citation 361} The same was true of waiting for an important element of the evidence, namely the transcript of a criminal trial involving the same facts.^{362 Citation 362}

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