Baldock Estate v Abou Reslan, 2023 ABKB 149
On the second day of a four-week professional liability trial, the trial judge dismissed the plaintiffs' application for an adjournment. The plaintiffs sought adjournment in order to obtain two new experts after the trial judge refused to qualify one expert on two of three issues on which the expert was being proffered.
In arriving at her decision to refuse the request for adjournment, the trial judge considered factors from Lameman v Alberta, 2011 ABQB 40. The trial judge considered and distinguished Koopmans v Joseph, 2014 ABQB 395 and Patricia Hills Landowners Society v Parkland County (Subdivision and Development Appeal Board), 2010 ABCA 413, where refusals to grant adjournments were found on appeal to be a breach of procedural fairness and denial of natural justice. Both cases involved self-represented litigants, where in the case at bar, there was seasoned litigation counsel well familiar with the onus of proof on the admissibility of expert opinion evidence. Moreover, if a losing party could adjourn the trial each time an evidentiary ruling was made in order to obtain new evidence, not only would the trial process be unfair, it would also be untenable, unmanageable, and inefficient.
The trial judge considered whether there would be any prejudice caused by denying or granting an adjournment and found that granting the adjournment would prejudice the defendants and could not be compensated for in costs, because it would provide the plaintiffs with the opportunity to avoid the consequences of the Court's ruling on the admissibility of the expert evidence. Plaintiffs would have an unfair trial advantage as they would be given multiple opportunities to present expert evidence. In contrast, the defendants would be deprived of the benefit of the ruling on the admissibility of the expert's evidence: it would preclude the defendants from asserting that the plaintiffs had not made out their case at trial.
The plaintiffs argued that an adjournment should be granted because the objection to and ruling on their expert's admissibility was unexpected. The trial judge declined to decide whether objections to qualifications need to be raised under rule 5.36(2) as the law is clear that, regardless of whether an objection is made, the trial judge is the gatekeeper of evidence and the party tendering the expert must prove that the expert is qualified.
The trial judge found that the trial was complex and multifaceted, requiring four weeks of trial time after an agreement on damages was reached. However, regardless of the difficulty in marshalling evidence and prosecuting complex and multifaceted claims, an unfair and inefficient trial system would result if one party is granted an adjournment to marshal better evidence to present at trial after an adverse ruling.
When considering whether there was a realistic expectation that the adjournment would accomplish its stated purpose, the trial judge found that the better approach was to deny the adjournment and allow trial to proceed as the plaintiffs could appeal any ruling made during trial after trial concluded.
The trial judge also considered that the plaintiffs should not bear the consequences of counsel's failure, but found that there was no error on counsel's part as expert opinion evidence is presumptively inadmissible. The admissibility of proposed experts is regularly scrutinized by the Court.
Lastly, with respect to rule 1.2, the trial judge found that allowing an adjournment of a trial underway so a party can correct an evidentiary issue would not allow the court process to operate in a timely and cost effective manner. Allowing mid-trial adjournments to remedy expert evidence would have a catastrophic effect on all trials where expert evidence is relied upon. It would eliminate any confidence that a trial would continue to conclusion in the face of an adverse ruling on admissibility.