Court File and Parties

COURT FILE NO.: CV-18-304-00

DATE: 20200213

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: STELMACH PROJECT MANAGEMENT LTD. and 1880551 ONTARIO LTD., Applicants

AND:

CITY OF KINGSTON, Respondent

BEFORE: Mew J.

COUNSEL: Michael Polowin and Roberto Aburto, for the Applicants

Tony E. Fleming, for the Respondent

HEARD: 13 February 2020 (in writing)

ENDORSEMENT

[1] This matter was referred to me by the Trial Coordinator at Kingston.

[2] The applicants seek a declaration that an Impost By-Law (By-law 2014-136) enacted by the respondent City is invalid together with the return of any impost fees wrongly collected by the respondent.

[3] The application was commenced on 1 October 2018 and originally made returnable on a date to be set. The application record was served on the respondent on 26 March 2019.

[4] Subsequently, on 16 April 2019, the applicants asked the trial coordinator to schedule a hearing date of 11 July 2019 for a two-hour appointment.

[5] A notice of appearance was served on 17 April 2019.

[6] The hearing date of 11 July 2019 was adjourned on consent until 19 December 2019. The court file does not disclose when the adjournment request was made. It was then adjourned again, this time until 21 February 2020, by way of a confirmation of application form dated 21 May 2019. That form estimates the time required for the application to be one full day in total.

[7] A full day appointment for the hearing was, accordingly, reserved. A judge was assigned.

[8] On 10 February 2020, without any sort of explanation, the respondent’s solicitors contacted the Trial Coordinator to ask what days might be available in May for a full day application hearing. When the Trial Coordinator requested further information, she was informed that “… the matter is being adjourned. Once we have secured a new date we will send in the confirmation form confirming the adjournment”.

[9] The matter was then referred to me and, on my instruction, the Trial Coordinator asked the parties for an explanation as to why the adjournment was being requested.

[10] Counsel for the City promptly responded to this request. He advised that the parties had been involved in settlement discussions – an offer was received from the applicants - but that, should those discussions prove fruitful, City Council approval of any settlement would be required. City Council only meets every two weeks, the next meeting being on 18 February, and notice of what would be a report in a closed session has to be given prior to any such Council meeting for an item to be placed on the agenda. The letter continues:

Given that the Application is currently set down for a hearing on February 21, there is insufficient time to receive instructions, possibly negotiate terms with the Applicants and resolve this matter in advance of the 21st. It is not fair to either party to continue to prepare for the hearing in the circumstances. It may even be possible that a further attendance before Council might be required, depending on the instructions I receive on the 18^th^ and the nature of any further negotiations.

[11] That is all well and good. What the letter does not explain is why, given that the application date was set nearly nine months ago, matters have not moved faster. Without knowing how extensive settlement discussions have been, when the applicants’ offer was received or when it was forwarded by the respondent’s lawyers to their client, any suggestion that things might have been left to the last minute, without leaving sufficient time for instructions to be obtained before the hearing date, would be speculation on my part. Certainly counsel would have been aware that any resolution of the dispute would require formal approval by the City and of the need to factor the time that would take into their settlement efforts.

[12] What is clear, at least on the face of the correspondence, is that it is simply assumed that a hearing date that has been fixed for nine months can be adjourned on the consent of counsel. And this without any apparent consideration to the court’s convenience or the inevitable waste of court resources in a small judicial centre when a long motion, application or a trial is adjourned on a few days’ notice.

[13] Although there is, on this occasion, sufficient time for the judge who was scheduled to hear the application to be notified before he has read the materials, it is unlikely given the limited volume of work in the smaller judicial centres of the East Region, that he can be effectively redeployed at this late stage. And there is little chance that the courtroom can be used for another matter. As a result, two valuable resources that are in short supply – courtroom space and judicial availability – will be wasted.

[14] Lest the parties think they are being picked on, I would add that this adjournment request is not untypical. Far too many matters, both criminal and civil, are the subject of adjournment requests that are made too late to use the allocated space and judicial time for other matters.

[15] It ill behooves the bar to complain about the length of time that proceedings take when court time and resources are regularly and repeatedly burned by last minute adjournments, pleas and settlements. Of course, resolution is always encouraged. But consideration should be also be given to the way that court and judicial resources are allocated and the effect of late cancellations.

[16] Nor should it ever be assumed that the court will automatically give effect to a consent adjournment request in circumstances such as these.

[17] In the present case, the application will be adjourned to be spoken to at motions court on 5^th^ March 2020 at 10:00 a.m. Although it will ultimately be up to the presiding judge to give directions, my recommendation to the motions judge is that any hearing date for the application that is set is made peremptory to both sides and that the parties’ application confirmation forms should be filed four weeks prior to the return date of the application so that the parties will have to turn their mind to their readiness sufficiently well in advance of the hearing date that if it is no longer required, the courtroom and the judge can be assigned to another matter.

Mew J.

Date: 13 February 2020