Scheduling discipline hearings is difficult. In order to get to a hearing, the regulator often needs to coordinate the schedules of many very busy people. Once the regulator finally has all those people together, it can be frustrating to then receive a request for an adjournment.
Most professional regulatory legislation does not have specific direction addressing adjournment applications. So what is the best way to deal with requests for adjournments?
The regulator is not required to grant every adjournment request, but it must carefully consider each request, and must grant an adjournment when appropriate.
Although the decision to grant an adjournment is discretionary, the case law has established that an adjournment must be granted where the failure to adjourn would result in a breach of natural justice. Natural justice is the principle that all parties have a right to a fair hearing. A fair hearing is one where all parties are able to put their cases squarely before the decision-maker, or to respond fully to the evidence and arguments of other parties. If a party makes an adjournment request because he or she cannot fully or adequately present his or her case, the tribunal may be required to grant the adjournment.
In exercising its discretion, a tribunal will need to determine:
- the reason for the adjournment (i.e. is the reason legitimate?); and
- the impact on the person requesting the adjournment (i.e. will the denial of the adjournment impact the person’s ability to present his/her case?).
Summary of Recent Cases
The general principle is easy to articulate, but it can be difficult to apply, given that many court decisions appear to be inconsistent.
For example, in Law Society of Upper Canada v. Igbinosun the court held that the failure to grant an adjournment resulted in a breach of natural justice. In that case, professional conduct proceedings had been ongoing for 6 years, with previous adjournments having been granted. The regulator scheduled the continuation of the hearing on a peremptory basis (meaning no further adjournments would be granted) despite knowing that legal counsel for the member intended to remove himself from the file. The member retained new legal counsel in the interim. That new legal counsel was not available on the scheduled date for the continuation of the hearing. The new legal counsel provided alternative dates when he was available in the near future, but the tribunal proceeded on the scheduled date. The member’s newly retained legal counsel was unable to attend and the member was unrepresented for the hearing. The failure to grant the adjournment in that case was deemed to have been a breach of natural justice and the decision was quashed. The court was critical of the tribunal for failing to consider the very serious impact the failure to adjourn had on the member.
In contrast, the court came to the opposite conclusion in McIntyre v. Ontario College of Teachers. InMcIntyre, a teacher faced professional misconduct proceedings. Over the course of 6 years, various adjournments had been sought and granted due to the member’s health and other proceedings that he was involved in. Ultimately, the hearing was scheduled on a peremptory basis and conditions were set for any further adjournment requests, including that medical evidence must be provided 14 days prior to the hearing addressing the nature of the condition, the reason the member could not participate and an estimate of when the member would be able to participate.
The member sought a subsequent adjournment as a result of a medical condition but failed to comply fully with the conditions for providing medical evidence in support of his adjournment application. The tribunal declined to grant the adjournment. On appeal, the court upheld the tribunal’s decision. The court reviewed the history of the matter and the member’s role in delaying it. The court held that the conditions for seeking an adjournment were entirely reasonable in the circumstances and found that the member had not complied.
The case law reveals that whether or not an adjournment should be granted depends on the specific factual background. Although the cases are not always consistent in their outcomes, they establish a number of factors that should carefully be considered and weighed. Some of the factors that a discipline tribunal should consider when determining whether to grant an adjournment include:
- The number of times an adjournment has already been granted. If there have already been repeated requests, denial of an adjournment may be reasonable. This factor should be carefully considered in light of the reason for adjournment and the particular circumstances of each case.
- The length of time since alleged unprofessional conduct occurred and the length of time since the complaint was made. If the adjournment will result in a lengthy delay before the hearing can proceed or resume the adjournment may not be appropriate, especially where a significant amount of time has already passed. This recognizes that the quality of evidence deteriorates with the passage of time.
- Availability of legal counsel. If a hearing is scheduled before the member has legal counsel, and legal counsel is subsequently retained, it will be reasonable to grant an adjournment to a date when counsel is available. Similarly, it is generally reasonable to grant an adjournment for a reasonable period of time to allow a member to retain legal counsel. Findings of unprofessional conduct have very serious repercussions for members. As such, the concept of natural justice includes the right for members facing professional conduct proceedings to have the opportunity to retain legal counsel. Unforeseen circumstances (weather, flight delays, etc.). Where external circumstances materially affect the ability of any of the parties to attend or, it may be appropriate to adjourn.
- Unavailability of material witness. It may be appropriate to grant an adjournment where a key witness is unavailable. The question in considering such a request is whether the absence of the unavailable witness will impact the party’s ability to its present case, and the reason why the witness is unavailable. If the party can present their case without the witness, it may be appropriate to deny the adjournment. Where, however, the witness is key to a party’s case, it may be unfair to proceed without the evidence.
- Illness of a tribunal member, the regulated member, legal counsel or material witnesses. If one of the parties, or a member of the tribunal is unexpectedly ill and their absence will materially impact the proceedings, it may be appropriate to grant an adjournment.
- Defect in procedure. A breach of natural justice that may be remedied by an adjournment is an appropriate circumstance for adjourning a hearing. For example, where a hearing starts but there has been a failure to provide adequate disclosure, an adjournment may be appropriate to allow the disclosure to occur and for the party requesting time to review that disclosure. The correct remedy in such circumstances is to grant an adjournment to allow the defect to be remedied.
- New issues or allegations arising in the course of the hearing. Many professional regulatory statutes permit hearing tribunals to consider new issues or allegations that arise in the course of a hearing. For example, such authority is contained in s. 79(3) of the Health Professions Act. However, before hearing evidence relating to new issues or allegations, the hearing tribunal must give the investigated member notice that it is considering new issues / allegations and it MUST grant an adjournment before hearing the evidence. This ensures fairness to the regulated member by ensuring that he or she knows the case to be met and has an opportunity to prepare a response. Courts have specifically said that administrative inconvenience to the tribunal is NOT an appropriate factor to consider in dealing with request for adjournment. For example, the fact that tribunal members may have travelled from out of town to attend the hearing will not generally be sufficient grounds on which to deny an adjournment request.
Notwithstanding the factors referenced above, if the necessity for an adjournment is as a result of a lack of diligence on the part of the party requesting it, the tribunal may be justified in refusing to grant the adjournment. The tribunal will want to carefully review the scheduling history and documentation to determine whether the member was aware of the hearing dates at the time of scheduling, and what steps the member has taken to prepare for the hearing. When granting an adjournment, the tribunal should advise the parties, in writing, of any conditions associated with its decision, such as the requirement to retain legal counsel within a specific period of time or the requirement to provide medical evidence if an adjournment is sought for medical reasons. This type of information will be assistance to establish an appropriate record, in the event that the tribunal receives and denies further adjournment requests.