Ontario Court of Appeal: Leendertse v. Ontario Lawyer Illness Adjournment Upheld

• The Ontario Court of Appeal dismissed an appeal in Leendertse v. Ontario, 2026 ONCA 629, upholding a trial judge's decision to proceed despite the appellant's lawyer's illness.
• The appellant had claimed damages for personal injury and Charter breaches stemming from a 2012 incident involving a police vehicle.
• The appellate court found no reasonable apprehension of bias or unfairness in the trial judge's handling of the lawyer's illness or an ex parte meeting.
• The Court of Appeal emphasized that the decision to proceed with trial sick counsel is a matter of broad judicial discretion, especially in a case that had already spanned eight years.
• The appellant was ordered to pay $30,000 in costs to the respondent following the dismissal of the appeal.

The Ontario Court of Appeal's firm stance reinforces that judicial discretion in managing trial schedules and deciding on adjournments is extensive.

The Ontario Court of Appeal recently affirmed that a trial judge's decision to proceed with a case, even when counsel is unwell, does not automatically constitute an apprehension of bias or unfairness. This ruling, stemming from the case of Leendertse v. Ontario, 2026 ONCA 629, underscores the broad judicial discretion afforded to courts in managing their dockets, particularly in complex personal injury litigation.

The appellant's claims originated from a 2012 incident where he was struck by a police vehicle mirror while cycling. He sought damages for personal injuries due to negligence and Charter damages for alleged detention-related breaches during the subsequent police investigation. The two-week trial was initially scheduled to commence on February 10, 2020, but was adjourned to February 18, 2020, due to the appellant's lawyer's illness, which was suspected to be COVID-19. Further delays ensued due to the COVID lockdown, prolonging the proceedings.

During the trial, the appellant brought a mistrial motion, contending that the cumulative effect of the delays and his lawyer's ill health during the trial week of February 18, 2020, compromised his ability to receive proper and fair representation. This mistrial motion was denied, and the trial concluded in 2022. Ultimately, Justice Kelly Gorman, now a supernumerary judge, dismissed the action in a judgment dated November 21, 2022, prompting the appellant to seek recourse from the Ontario Court of Appeal.

On appeal, the appellant sought a new trial and $25,000 in Charter damages, arguing that the trial judge had erroneously concluded there was no detention during the post-accident investigation. More significantly, the appellant raised several claims of reasonable apprehension of bias and unfairness related to the management of the trial, particularly concerning his lawyer's health.

One central argument involved an ex parte meeting on February 11, 2020, between the trial judge and the respondent's counsel. The appellant contended this meeting created an apprehension of bias. Additionally, the appellant argued that the trial judge's failure to grant a further adjournment during a February 12, 2020, conference call, despite his lawyer's ongoing illness, also led to a reasonable apprehension of bias. Finally, the appellant asserted that the trial was unfair because the judge chose to proceed during the week of February 18, 2020, while his counsel remained unwell, rather than granting another adjournment. These points collectively formed the basis of the appellant's challenge to the trial's integrity.

The Ontario Court of Appeal ultimately dismissed the appeal, ordering the appellant to pay the respondent costs totaling $30,000, which included disbursements and taxes. The court systematically addressed and rejected each of the appellant's arguments concerning bias and unfairness. Regarding the February 11, 2020, ex parte meeting, the Court of Appeal found any uncertainty about whether the trial judge knew an agent for the appellant's lawyer was en route to be immaterial. It concluded that it was a foregone conclusion the matter would not proceed that day, rendering an agent's attendance unnecessary except as a courtesy, especially given arrangements for a later conference call.

The Court of Appeal also found no basis to conclude that the trial judge acted unfairly in addressing the appellant's lawyer's illness during the February 12, 2020, conference call. While acknowledging that other judges might have granted a further adjournment given the lawyer's visible illness and need for accommodation, the appellate court emphasized that the decision of whether to proceed with trial sick counsel was a matter of broad Ontario Court of Appeal judicial discretion. The court noted the considerable time the matter had already taken, having reached trial after approximately eight years, and its status as the sole case on the trial list. The appellate court similarly rejected the argument that proceeding during the week of February 18, 2020, with an ill lawyer, rendered the trial unfair. Although the Court of Appeal acknowledged that the trial judge arguably should have determined that the police had detained the appellant when informing him that leaving the investigation could lead to arrest, this point did not alter the overall outcome of the appeal.

This decision in Leendertse v. Ontario provides important clarity on the limits of challenging a court's management of trial proceedings, particularly when faced with a lawyer's illness. The Ontario Court of Appeal's firm stance reinforces that judicial discretion in managing trial schedules and deciding on adjournments is extensive. It sets a high bar for establishing a reasonable apprehension of bias based on a judge's decision to proceed, even when counsel is unwell.

The ruling implies that while a judge might consider a lawyer's health, an illness does not automatically guarantee an adjournment. The court's emphasis on the case's lengthy history and its position as the sole matter on the trial list highlights factors that judges may weigh when exercising their discretion. This outcome serves as a reminder to legal practitioners that the bar for demonstrating unfairness or bias in such circumstances is significant, and that courts are generally expected to move cases forward efficiently, even in challenging situations.

This ruling clarifies that courts have broad judicial discretion to proceed with trials, even when counsel is ill, and that such decisions are unlikely to constitute an apprehension of bias. Lawyers should understand that illness may not automatically secure an adjournment and must be prepared to demonstrate significant prejudice to challenge a court's decision to proceed.

Source: Original reporting via Canadian Lawyer Magazine