Law Times

Law Times • November 14, 2011 NEWS PAGE 3 LSUC cracks down on adjournments Guidelines needed to prevent wasting resources, regulator says BY KENDYL SEBESTA Law Times at lawyers' disciplinary hear- ings is too rigid, according to one Toronto defence counsel. "One of the things that A troubles me about this direc- tive is that it's silent about the member," says William Trudell, who frequently defends law- yers in disciplinary actions by the LSUC. "Th ere are a number of reasons for adjournments to be made. For instance, often cases don't go ahead because of issues outside members' control like disclosure. Or sometimes motions or appli- cations may need to be addressed or sometimes issues that are just a part of life get in the way. But this remains largely silent on pro- tecting the lawyer accused in the name of effi ciency." Th e law society approved the practice directive at Con- vocation last month. Under the new guidelines, lawyers will have to fi le a request for adjournment with the LSUC's tribunal offi ce prior to their hearing and attend a proceed- ings management conference at least 10 days in advance of it. At the same time, they can request adjournments only in "exceptional circumstances" such as an illness on behalf of a party, witness or representative. According to the new guide- lines, "late retention of coun- sel and/or the unavailability of such counsel or the parties' wishes to engage in last-minute settlement discussions" don't count as exceptional, a fact that troubles Trudell. "Th at's just a part of life," says Trudell, referring to unex- pected circumstances such as counsel unavailability. "Th ere has to be a better job done here in seeing the problem and fi nd- ing a way to fi x it in the pub- lic interest. I'm sympathetic to the idea that there's time being wasted in some cases, but most adjournments are brought forth for solid reasons when members were really looking to do the right thing." But LSUC Bencher Raj Anand argues the new direc- tive is fl exible in comparison to other guidelines currently in place. He noted at Convocation "that tribunals sort of across the board have addressed this con- cern of last-minute adjournment new Law Society of Upper Canada crack- down on adjournments requests, which have their inevi- table impact in terms of wasted time and expense of adjudicators and, therefore, of the profession and particularly out-of-town benchers and other adjudica- tors in our case. And they have addressed it in order to balance procedural fairness towards the parties versus the sensible man- agement of the tribunals' own processes in a cost-eff ective way." Anand added that in some regions, the Superior Court has a rule stating that "once we fi x trial dates, don't bring a request for an adjournment, even a consent request for an adjourn- ment, because there are pow- erful imperatives in terms of the running of the courts that demand that the hearings go ahead on the dates that are set." Anand noted that while the LSUC wouldn't advocate for this type of approach, the prac- tice directive aims to "send a signal to the parties and to the adjudicators" about what the tribunal expects. "So the key is to give ad- vance notice . . . to the parties, to the adjudicators of the gen- eral expectations of the tribunal in an eff ort to promote consis- tency, to promote predictabil- ity, which then has spillover eff ects into when adjournment requests are made and whether consent is given," he said. But according to Trudell, the nature of the profession makes this type of predictability diffi - cult to attain. "Often, I have no idea what may come up when a date for a hearing is set because anything can happen between now and then," he says. "Th e unrepresented litigator real problems, for in- creates stance," he adds. "Th ey may not understand what the rules are and the LSUC disciplinary pro- cess is expensive, so this could contribute to delays and ad- journments, which is troubling because the LSUC should make sure its members are represent- ed. Th ere is also a rush to set dates early on before someone is ready and before they have counsel when there shouldn't be a rush to do this before all the issues have been addressed. Peo- ple shouldn't just be processed along. Th ere are other interests that need to be considered." According to Anand, the issue of adjournments arose nearly a year ago after proceed- ings management benchers brought the matter forward to the tribunal's committee. Although Rule 14 of the hearing panel rules and prac- tice procedures already pro- vides a fair amount of guid- ance on the matter, the new directive was a bid to "elabo- rate on how the discretion should be exercised in diff er- ent factual settings," accord- ing to materials provided at Convocation. "Th is is part of the law society's ongoing commit- ment to improving processes and ensuring the eff ective management of the adjudi- cative process," says LSUC spokesman Roy Th omas. "It is a guide for everyone: pan- els, representatives, and the members in discipline, in- cluding the unrepresented." Th omas adds that the LSUC introduced the prac- tice direction as a proactive measure to guide and advise the parties to prepare for hear- ings in a way that avoids "un- necessary adjournments and the consequent delay in access to justice, wasted resources, and cost to all parties and the 'There are a number of reasons for adjournments to be made,' says William Trudell. hearing panel." Some law society bench- ers questioned the rigidity in- volved, however. "I've often wondered if we would be able to sustain judicial review if the request for an adjournment is made, the benchers are from out of town, expenses just to get the folks here could be two or three thousand dol- lars for airfare . . . [and then] to say that an adjournment would be given upon pay- ment of X amount of dol- lars by way of disbursements or costs thrown away," said Bencher Gerald Swaye at Convocation. "If the mem- ber then asks for ultimately judicial review on that issue, what might the courts do?" According to the guide- lines, the quicker members and adjudicators make re- quests for adjournments, the better. Th ey note that earlier requests mean "prejudice to a party or parties will be less likely to occur" and the waste of fewer resources. But for Trudell, that's not enough. "Th e LSUC should really be doing something more for its members," he says. "Th ere needs to be something better in place that makes sure they are really ready for their hearing and pre- vents this from happening." GET THE MOST THOROUGH AND UP-TO-DATE RESOURCE ON THE CIRB CLARKE'S CANADA INDUSTRIAL RELATIONS BOARD GRAHAM J. CLARKE For almost two decades, this work has covered all developments at the Canada Industrial Relations Board (CIRB) and its predecessor board. You get expert commentary on more than 30 years of Board decisions and the key statutory and jurisprudential changes over that same period. 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