Court File and Parties

COURT FILE NO.: CV-13-482642 DATE: 2020-09-23

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kulsum Jaffer, Plaintiff AND: Rahim Remu, Carol D. Scarano, Mario Scarano and Muhammad Ijaz, Defendants

BEFORE: Darla A. Wilson J.

COUNSEL: Salina F. Chagpar, for the Plaintiff Melinda Baxter, for the Defendant, Muhammad Ijaz

HEARD: In writing

Endorsement

[1] This is a motion in writing brought on consent on an urgent basis seeking an adjournment of trial which is fixed to proceed at the jury sittings in Toronto commencing October 5, 2020. In the notice of motion, in the section setting out the grounds for the motion, it is simply stated that counsel have agreed between themselves to adjourn the trial.

[2] The affidavit of solicitor Mr. Fabiano is filed in support of the motion. Mr. Fabiano is a lawyer at the Defendant’s law firm. The salient information from his affidavit is as follows: the claim arises from a motor vehicle accident that occurred February 12, 2012 in Ajax; the Plaintiff claims injuries as a result of that accident; there has been no pretrial conference held; and the counsel have agreed to adjourn the trial date.

[3] Mr. Fabiano deposes that there was a pretrial set for March 30, 2020 which was cancelled. He states that counsel have been trying to schedule a pretrial on a mutually convenient date but have not been able to find a date that works before the trial date because of “scheduling conflicts”. As a result, they are requesting the trial be adjourned.

[4] I am not prepared to grant the relief sought in this motion. First, the motion materials are woefully deficient. There is a paucity of information concerning any attempts to reschedule the pretrial in a timely fashion. The Court was conducting Zoom pretrials commencing in April 2020. The Notice to Profession posted on the Superior Court’s website indicated that Zoom pretrials were being arranged on a priority basis for all matters cancelled due to COVID-19.

[5] The trial coordinator contacted counsel in August to arrange a pretrial conference in September and was advised that the date was not convenient. The exhibit attached to Mr. Fabiano’s affidavit contains an email between counsel in which Ms. Baxter, the solicitor for the Defendant, stated that the Court offered a pretrial date of September 16th, but she indicated that date was not convenient for counsel and that counsel wished to have the pretrial conference in October or November and the trial date adjourned on consent.

[6] In Toronto, the Practice Direction states that trial dates will only be adjourned in extenuating circumstances. The fact that counsel consented to an adjournment of a trial date does not mean that the adjournment will be granted. There must be a compelling reason to adjourn a trial date that has been fixed for more than a year. There is no explanation offered in the motion materials for the need for an adjournment nor is an extenuating circumstance set out.

[7] When counsel have a trial date, they should anticipate that the trial date will proceed and should be prepared to commence the trial as scheduled. Preparation for trial includes attending a pretrial conference with a Judge to canvass possible resolution and to conduct trial management.

[8] In this case, it is perplexing to me that knowing the trial was set to proceed in October, when the Court called in August to schedule the pretrial on September 16th, counsel found the date was “not available” for them. Instead, counsel preferred to schedule the pretrial after the October 5th trial date and decided to launch a motion for a consent adjournment of the trial date. It is difficult to comprehend what could have been more pressing on September 16th than to attend a pretrial on this case, given the rapidly approaching trial date.

[9] The accident giving rise to this claim occurred more than 8 ½ years ago. The Court must reschedule many trials that were fixed during the period of the suspension of Court services due to the pandemic, from March to June 2020. There is no reason to adjourn this trial simply because counsel chose not to proceed to a pretrial conference on a date offered by the Court, or to make themselves available on another date that the Court could accommodate in advance of the trial date. Trial dates are important; the Court schedules Judges according to trials that have been booked. Counsel cannot assume that simply because they decide they would prefer not to proceed to trial on the date that was booked that an adjournment of the trial date will be granted.

[10] The motion for a consent adjournment of the trial commencing October 5, 2020 is dismissed.

Date: September 23, 2020