Oct 15, 2020

Discipline tribunals often struggle when a practitioner requests an adjournment to obtain legal counsel. The right to have representation at a hearing affecting one’s livelihood is given significant weight. Also, courts review procedural fairness issues, such as refusing an adjournment request, on a correctness (not reasonableness) basis. However, in Spaetgens v Alberta (Securities Commission), 2018 ABCA 410, <http://canlii.ca/t/hwd8w> Alberta’s highest court upheld a refusal to grant an adjournment to obtain legal counsel (previous legal counsel withdrawing two months before the hearing) because:

  • There was insufficient evidence that the practitioner was diligently searching for new counsel;
  • There was no corroboration that a prospective lawyer would act for the practitioner if an adjournment was granted;
  • The practitioner raised financial problems in retaining a lawyer but provided no explanation as to how those issues would be resolved so that he would, in fact, be able to obtain legal counsel.

In the circumstances the Court concluded that the tribunal was correct in concluding that what was really being requested was an indefinite adjournment. The circumstances included the failure to propose alternative hearing dates, the failure to take steps to obtain the disclosure from a third party that the practitioner said he needed, and that the prosecution witnesses would be prejudiced by the late request for an adjournment, particularly since one of them was in poor health.

The Court did, however, reduce the administrative financial penalty by 75% because the amount was based on a comparison to one when the practitioner was working. A financial penalty for an unemployed person should be less than for an employed person. The length of the trading ban was also reduced to reflect the outcome in other similar cases.