In reasons released October 5, 2023, the Capital Markets Tribunal summarily dismissed a motion by OSC Staff to adjourn a 15 day hearing on the merits approximately three weeks before it was scheduled to commence.

The adjournment was requested due to the departure of the OSC senior litigation counsel who had had carriage of the matter and the fact that external counsel retained by the Commission was not available on the first 5 days of the hearing.  His unavailability was known at the time that he was retained.

The Tribunal rejected the submissions of OSC Staff that this constituted an “exceptional circumstance” within the meaning of Rule 29(1) of the Tribunal’s Rules of Procedure and Forms which provides that every merits hearing shall proceed on the scheduled date unless the party requesting an adjournment satisfies the panel that there are exceptional circumstances requiring an adjournment.  The Tribunal noted that the Rule sets a “high bar”,  reflecting the objective that Tribunal proceedings be conducted in a just, expeditious and cost-effective manner.

The Tribunal concluded that absent evidence that OSC Staff had considered alternatives so that an adjournment could be avoided, and if no alternatives were available or acceptable, to provide an explanation as to why that was the case, exceptional circumstances had not been established.  As noted by the respondent, there was no evidence that OSC Staff had considered the availability of other internal counsel or searched for other qualified external counsel who was available on the scheduled hearing dates.