Background
This was an appeal from a civil judgment of Justice Alexandre Kaufman of the Ontario Superior Court of Justice, dated September 8, 2025. The underlying action involved a claim by the plaintiff, Lisa Aileen Davis, that included an award for loss of income.
At trial, the defendant Wayne Ng sought an adjournment on the basis that loss of income documentation had been served late, in breach of the obligations under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The trial judge refused the adjournment and proceeded to judgment, which included the loss of income award. Ng appealed, arguing that the refusal deprived him of a proper defence and constituted a miscarriage of justice.
The Court’s Holding
The Court of Appeal, comprising Huscroft, Dawe, and Wilson JJ.A., dismissed the appeal. The court acknowledged that late service of relevant documentation in breach of the Rules of Civil Procedure is not to be condoned, but found that no actual unfairness or prejudice to the defence had resulted from the late service in the circumstances of this case.
Applying the deferential standard of review applicable to adjournment decisions — a highly discretionary call for the trial judge — the court found no error in the trial judge’s refusal. Because neither error nor prejudice was established, the court declined to order a new trial or to strike the loss of income award. Costs of $20,000, all inclusive, were awarded to the respondent.
Key Takeaways
- Adjournment decisions are highly discretionary and attract deference on appeal; an appellate court will not interfere absent a demonstrated error or resulting unfairness: Martin v. Sansome, 2014 ONCA 14, at para. 28.
- Late document service in breach of the Rules of Civil Procedure is improper, but does not automatically warrant an adjournment — the defendant must show actual prejudice to the defence.
- Where no unfairness or prejudice flows from a procedural breach, courts will not disturb a damages award (including loss of income) on that basis alone.
Why It Matters
This short oral decision reinforces a well-established principle in Ontario civil litigation: a party seeking to overturn a trial result on adjournment grounds must do more than point to a procedural irregularity by the opposing side. The complaining party must demonstrate that the irregularity actually compromised their ability to mount a defence. Counsel should be prepared to articulate concrete prejudice — not merely a rule violation — when bringing or opposing adjournment motions.
The decision also serves as a reminder that, while the courts expect strict compliance with disclosure timelines under the Rules of Civil Procedure, the remedy for late service is calibrated to the harm caused rather than applied as a matter of course.