In the case of Mallette v. The Wawanesa Mutual Insurance Company, 2020 ONSC 1448 (CanLII), the Honourable Justice Mark Edwards raises concerns over the practice of appointing new counsel on the eve of a motion or trial, resulting in their asking the Court for an adjournment.

The facts found the plaintiff appointing a new lawyer to argue a summary judgment motion, filing a notice of change of lawyer on February 24, 2020, in advance of the scheduled motion set to occur on February 27, 2020. The plaintiff then sought to adjourn the motion for several reasons, including the recent retainer of the lawyer arguing the motion and his unavailability to attend. The adjournment was contested, to be decided by Justice Edwards.

In his reasons, Justice Edwards found none of the reasons advanced by the plaintiff for the adjournment to be compelling. Of importance, it he noted the only real reason why the adjournment request was necessitated was the need to have new trial counsel present to argue the motion. Current counsel was candid enough to admit that she did not feel she had the experience to argue the motion, hence the need to have trial counsel  present to do so. But for this admission by current counsel, the adjournment request would have been refused.

Justice Edwards, in allowing the adjournment, issued a caution for those who intend to retain outside counsel ahead of a motion or trial, followed by seeking an adjournment. “Where counsel feel the need to retain outside counsel, they must do so with the clear understanding that any lawyer who is retained to argue a contested matter is available on the date scheduled by the court. This applies to both trial dates and motion dates.”

Applying those facts to the case at bar, Justice Edwards opined that there was absolutely nothing wrong with retaining outside counsel, but timing is important, where new counsel was known to be out of the country and the retainer was only three days before the motion.  Her conduct resulted in the loss of a day of precious judicial resources that could have been available to other litigants. Her conduct equally resulted in not insignificant costs thrown away on the part of counsel for Wawanesa.”

Despite these considerations, an adjournment was granted based on the fact were it not granted, and the admission that current counsel did not feel she had the experience to argue the motion, there would have been irreparable prejudice to the Plaintiff given the inability of current counsel to argue the motion.

A caution was given to the parties that such conduct was not acceptable in future unless “exceptional circumstances” arise. Costs for what was effectively a contested adjournment were awarded to the defendant, in the amount of $10,000.00.

Appointing counsel to argue a motion is a viable tactic ahead of a motion or trial when outside experience is recognized to be needed.   This applies to both sides where some insurers seek outside counsel after maintaining a file with in house counsel.  However, using such a method as a tactic to delay said proceedings are not to be taken lightly based on this ruling. Counsel must be available and prepared to proceed to the scheduled matter despite their appointment to file lest they risk a denied adjournment and substantial costs to the opposing party.

If you have a question about this blog or a similar file, please contact Eric Grossman at 416-777-5222