Court of Appeal for Ontario

Date: 2018-07-19 Docket: C63667

Judges: Hoy A.C.J.O., van Rensburg and Pardu JJ.A.

Between

Omelian Romanko and Neonila Romanko Appellants (Plaintiffs)

and

Aviva Canada Inc. and Aviva Insurance Company of Canada Respondents (Defendants)

Counsel

Omelian Romanko and Neonila Romanko, acting in person

Alan L. Rachlin, for the respondents

Heard and released orally: July 19, 2018

On Appeal

On appeal from the judgment of Justice Darla A. Wilson of the Superior Court of Justice, dated April 18, 2017 with reasons dated April 19, 2017, reported at 2017 ONSC 2393.

Reasons for Decision

[1] The appellants, Omelian and Neonila Romanko, appeal the judgment of the trial judge, dated April 18, 2017, dismissing their action against the respondents arising from a motor vehicle accident in 2003.

[2] The appellants were both present today. Mrs. Romanko made submissions on her own behalf and on behalf of Mr. Romanko with the assistance of an interpreter of their choice. We have considered the written materials the appellants filed with the court as well as Mrs. Romanko's oral submissions.

[3] Essentially, the appellants argue that they are elderly and self-represented, Mr. Romanko has health issues, and the trial judge erred by not granting a further adjournment of their jury trial. They also argue that the trial judge provided insufficient reasons.

[4] Whether or not to grant an adjournment is a matter of judicial discretion. The scope for appellate review is limited to whether the discretion is exercised judicially on proper principles, after considering all relevant factors: Estrada v. Estrada, 2016 ONCA 697, at para. 2.

[5] The trial judge provided careful and thorough reasons why she declined the appellants' request for a further adjournment and dismissed their action.

[6] She detailed the long history of delay on the part of the appellants in moving the matter toward trial, their multiple changes of counsel, and their failure to abide by court orders. The May 25, 2015 trial date had been adjourned at the appellants' request and their April 10, 2017 trial date had been marked peremptory. The appellants knew that the trial would proceed on April 10, 2017, with or without counsel. The trial judge noted that the plaintiffs were granted numerous indulgences by the court and were given every opportunity to ensure that their case was ready for trial. She wrote that "[w]hile I appreciate Mr. Romanko had an incident of difficulty with speech in December 2016 which has led to a series of medical tests, there is no evidence that he is unable to testify on his own behalf at trial or that there is any urgency to his medical condition. He is 78 years of age."

[7] She concluded that it would be manifestly unfair to the defendants to further adjourn the trial and that the court must control its own procedure to ensure fairness to all litigants. If adjourned, a new trial date could not be secured for another two years.

[8] The trial judge appreciated that dismissing the appellants' action was a drastic remedy. When the appellants failed to produce any evidence on April 10, 2017 that Mr. Romanko would be unable to testify at trial, or that his current situation was expected to improve to the point that he would be in a better position at some point in the near future, she indicated that the trial would proceed on April 12, 2017 and gave the appellants the opportunity to present further medical evidence about Mr. Romanko's medical condition or inability to testify at trial at that time. When the appellants chose not to attend on April 12, 2017, she ordered that the trial would proceed on April 18, 2017 to give them one last opportunity to re-evaluate their decision. The jury was summoned on April 18, 2017. Mrs. Romanko attended on April 18, 2017, but she had no medical documentation to file with the court concerning her husband's medical condition or her own.

[9] The trial judge concluded that this case had reached the point where "the court must say enough is enough".

[10] There is no basis for this court to set aside her findings as to the sufficiency of the medical evidence on the requisite issues. The trial judge exercised her discretion reasonably, on proper principles. She took account of all relevant considerations. She balanced the interests of the appellants, the respondents and the interests of the administration of justice in the orderly proceeding of civil trials on their merits. There is no basis for this court to intervene with her decision to dismiss the action.

[11] Accordingly, the appeal is dismissed. In the circumstances, no costs are ordered.