Three Neighbours, One Missed Flight, and a Costs Order

The situation

Naomi, Vaishali and Anusha had lived on the same street in Hamilton for years, and the dispute that brought them to a shared hearing date had started, as these things often do, over something ordinary: a fence line, a shared driveway easement, and a disagreement over who was responsible for drainage work that had damaged one of their basements. What began as a neighbourly disagreement had, after eighteen months of failed informal talks, become a formal proceeding involving all three of them, with claims and counterclaims tangled together because the drainage issue affected all three properties differently, and none of them had fully anticipated how far it would go when the first complaint was made.

Naomi worked as an air traffic controller, a job that came with a rotating schedule and, occasionally, mandatory postings that took her out of the country for training with essentially no flexibility around timing. Vaishali was a police sergeant with equally unpredictable shift demands, though her role in the case was somewhat less central than Naomi's. Anusha worked more conventional hours and had, in practice, become the one who fielded most of the communication with our office as the case moved forward, though all three were equally parties to the claim and equally affected by however it resolved.

The hearing date had been set months in advance, at a point when nobody expected a scheduling conflict, and all three had structured their work commitments around being available for it. But three weeks before the hearing, Naomi was notified of a mandatory training rotation tied to her job, a posting that could not be moved and that would keep her out of the country, and largely unreachable during Ontario working hours, through the hearing date itself. She was not simply unavailable; she was the party with the most direct knowledge of the drainage timeline, since she had been the one who initially raised the issue with the municipality years earlier and held most of the early correspondence documenting when the problem started.

Everything about managing this had to happen remotely from that point forward. Naomi could not attend meetings in person, documents had to be signed and returned across a significant time difference that left only a narrow overlapping window each day, and by the time her posting was confirmed, the opposing parties in the case had already spent real money preparing for a hearing that suddenly could not reasonably go ahead as planned, since a case involving all three properties could not fairly proceed without its central witness.

What was actually at stake

On its face, an adjournment sounds like a minor procedural favour: move the date, everyone comes back later. In practice, it is a request that the court weighs against the other side's right to have the matter proceed on schedule, and against the real costs the other side may have already incurred getting ready for the date as it stood. The other two parties to the drainage dispute, who were not our clients, had retained an engineering expert to prepare a report on the drainage damage in time for the hearing, and that expert's fees, along with their own counsel's preparation costs, would be substantially wasted if the date moved without any compensation attached.

The dispute itself involved a fairly substantial amount, in the range of $350,000 to $800,000 once the claims and counterclaims across all three properties were added together, covering the cost of remediation work, property damage, and disputed responsibility for a shared drainage easement that ran behind all three homes. A hearing date lost to an adjournment is not just an inconvenience in a case of this size; it can mean months of delay before another date becomes available on an already-booked court calendar, during which legal costs continue to accrue on both sides regardless of who is actually at fault for the delay.

The core tension was this: Naomi's absence was genuine and unavoidable, tied directly to a mandatory work posting, not tactical or a matter of convenience, but the court does not grant adjournments simply because a reason is sympathetic. It weighs whether proceeding without the missing party would be unfair or impractical against the prejudice to the other side of losing the date they had prepared for. Because Naomi held direct knowledge central to establishing when the drainage problem began and what had been done about it, proceeding without her risked leaving the court with an incomplete record on a central factual question. But that argument, on its own, would not make the other side's wasted preparation costs disappear, and we had to be honest with Naomi, Vaishali and Anusha that some payment was very likely regardless of how the motion was argued.

The realistic goal was never a free adjournment. Courts routinely grant adjournments on condition that the party requesting the delay compensate the other side for costs thrown away, meaning the expenses that are now wasted because the hearing did not go ahead as scheduled. The genuine risk in this file was that those costs, given the expert report already substantially commissioned, could be significant, and that the other side, sensing leverage over a party who badly needed the delay, would ask for considerably more than the delay had actually cost them.

What we did

1. Documented the unavoidability of the conflict immediately. As soon as Naomi's posting was confirmed, we gathered the training assignment paperwork and travel confirmation, because a court weighing an adjournment request wants to see clear proof that the conflict is real and involuntary, not a convenient excuse to delay a case that was not going well for the party asking. Having that documentation ready before the motion was even drafted meant the request opened from a position of credibility rather than having to earn it during argument.
2. Brought the motion early rather than waiting. We filed the adjournment motion as soon as the conflict was confirmed, three weeks out, rather than closer to the hearing date, because an early motion gives the other side time to mitigate their own preparation costs and signals to the court that the request is being made in good faith rather than as a last-minute tactic.
3. Proposed a new date rather than an open-ended delay. Rather than asking the court to simply vacate the hearing and leave the next date unresolved, we proposed a specific replacement date roughly ten weeks out, based on Naomi's confirmed return, which made the request easier for the court to grant because it did not leave the timeline uncertain for anyone, including the two parties who were not our clients.
4. Pushed back on the scope of the costs claimed. The other side's initial costs submission included fees for work on the expert report that could still be used at the rescheduled hearing without redoing it, and we argued in our written materials that only genuinely wasted preparation, not analysis that remained useful, should count as thrown-away costs recoverable from our clients.
5. Coordinated Vaishali and Anusha's continued participation remotely with Naomi. Because all three were parties together and any filing needed to reflect a shared position, we set up a structure where Vaishali and Anusha could review draft materials locally while Naomi reviewed and approved them from overseas within the narrow daily window their schedules overlapped, so the case kept moving despite the distance.
6. Negotiated a costs figure before the motion was argued. Rather than leaving the costs amount entirely to the court's discretion at the hearing, we negotiated directly with opposing counsel beforehand and reached an agreed figure that reflected the expert costs genuinely at risk, which avoided a second, smaller dispute layered on top of the adjournment request itself and saved everyone additional argument time.
7. Advised the clients on the realistic range of costs before the number was set. Throughout the negotiation we gave Naomi, Vaishali and Anusha a realistic range for what thrown-away costs typically run in a case of this size, so the eventual figure was not a surprise and they could plan for the immediate expense. Thrown-away costs, we explained, cover only the wasted increment of preparation, not the full cost of litigating the file, since conflating the two would have left them expecting a far larger bill than the actual one.

The outcome

The adjournment was granted, and the hearing was rescheduled to the date we had proposed roughly ten weeks out. As a condition of the adjournment, Naomi, Vaishali and Anusha paid costs thrown away to the other side, a figure in the low tens of thousands of dollars, payable immediately rather than folded into the eventual outcome of the case. That was the real price of the delay, and it was not avoidable once the expert report had already been substantially commissioned in reliance on the original date.

The costs figure was lower than the other side's initial ask, because we had successfully argued that not all of their preparation work was actually wasted; some of the expert's analysis remained usable at the later hearing, and the court accepted that distinction when setting the final amount. Naomi, Vaishali and Anusha still had to pay a real amount out of pocket immediately, with no guarantee it would be recovered even if they ultimately succeeded on the merits of the drainage dispute at the rescheduled hearing.

The underlying case proceeded at the rescheduled date with Naomi able to participate fully and in person, which meant the record on the drainage timeline was complete rather than reconstructed secondhand through affidavits or a colleague's account. The three of them absorbed the immediate cost of the adjournment as the price of getting a fair hearing rather than proceeding without a key witness, which is the trade-off an adjournment motion usually represents: delay and cost now, in exchange for a more complete case later. It was not the outcome they would have chosen if the scheduling conflict had never arisen, but given the conflict was unavoidable, it was the best available result. The distinction we had argued between preparation that was genuinely wasted and analysis that carried over to the new date meant the price of fairness was real but contained, rather than open-ended. That is generally how a well-argued adjournment motion should land: it should cost the requesting party something, so the other side is not simply absorbing the delay for free, but not everything the other side happens to ask for.

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