



COURT OF APPEAL FOR ONTARIO

CITATION: Romanko v. Aviva Canada Inc., 2018 ONCA 663

DATE: 20180725

DOCKET: C63667

Hoy A.C.J.O., van Rensburg and Pardu JJ.A.

BETWEEN

Omelian Romanko and Neonila
    Romanko

Appellants
(Plaintiffs)

and

Aviva Canada Inc. and Aviva Insurance Company of
    Canada

Respondents
(Defendants)

Omelian Romanko and Neonila Romanko, acting in person

Alan L. Rachlin, for the respondents

Heard and released orally: July 19, 2018

On appeal from the judgment of Justice Darla A. Wilson of the
    Superior Court of Justice, dated April 18, 2017 with reasons dated April 19,
    2017, reported at 2017 ONSC 2393.

REASONS FOR DECISION

[1]

The appellants, Omelian and Neonila Romanko, appeal the judgment of the
    trial judge, dated April 18, 2017, dismissing their action against the
    respondents arising from a motor vehicle accident in 2003.

[2]

The appellants were both present today. Mrs. Romanko made submissions on
    her own behalf and on behalf of Mr. Romanko with the assistance of an
    interpreter of their choice. We have considered the written materials the
    appellants filed with the court as well as Mrs. Romankos oral submissions.

[3]

Essentially, the appellants argue that they are elderly and self-represented,
    Mr. Romanko has health issues, and the trial judge erred by not granting a further
    adjournment of their jury trial. They also argue that the trial judge provided
    insufficient reasons.

[4]

Whether or not to grant an adjournment is a matter of judicial discretion.
    The scope for appellate review is limited to whether the discretion is
    exercised judicially on proper principles, after considering all relevant
    factors:
Estrada v. Estrada
, 2016 ONCA 697, [2016] O.J. No. 5362, at
    para. 2.

[5]

The trial judge provided careful and thorough reasons why she declined
    the appellants request for a further adjournment and dismissed their action.

[6]

She detailed the long history of delay on the part of the appellants in
    moving the matter toward trial, their multiple changes of counsel, and their
    failure to abide by court orders. The May 25, 2015 trial date had been
    adjourned at the appellants request and their April 10, 2017 trial date had
    been marked peremptory. The appellants knew that the trial would proceed on
    April 10, 2017, with or without counsel. The trial judge noted that the
    plaintiffs were granted numerous indulgences by the court and were given every
    opportunity to ensure that their case was ready for trial. She wrote that [w]hile
    I appreciate Mr. Romanko had an incident of difficulty with speech in December
    2016 which has led to a series of medical tests, there is no evidence that he
    is unable to testify on his own behalf at trial or that there is any urgency to
    his medical condition. He is 78 years of age.

[7]

She concluded that it would be manifestly unfair to the defendants to
    further adjourn the trial and that the court must control its own procedure to
    ensure fairness to all litigants. If adjourned, a new trial date could not be
    secured for another two years.

[8]

The trial judge appreciated that dismissing the appellants action was a
    drastic remedy. When the appellants failed to produce any evidence on April 10,
    2017 that Mr. Romanko would be unable to testify at trial, or that his current
    situation was expected to improve to the point that he would be in a better
    position at some point in the near future, she indicated that the trial would
    proceed on April 12, 2017 and gave the appellants the opportunity to present
    further medical evidence about Mr. Romankos medical condition or inability to
    testify at trial at that time. When the appellants chose not to attend on April
    12, 2017, she ordered that the trial would proceed on April 18, 2017 to give
    them one last opportunity to re-evaluate their decision. The jury was summoned
    on April 18, 2017. Mrs. Romanko attended on April 18, 2017, but she had no
    medical documentation to file with the court concerning her husbands medical
    condition or her own.

[9]

The trial judge concluded that this case had reached the point where
    the court must say enough is enough.

[10]

There
    is no basis for this court to set aside her findings as to the sufficiency of
    the medical evidence on the requisite issues. The trial judge exercised her
    discretion reasonably, on proper principles. She took account of all relevant
    considerations. She balanced the interests of the appellants, the respondents
    and the interests of the administration of justice in the orderly proceeding of
    civil trials on their merits. There is no basis for this court to intervene
    with her decision to dismiss the action.

[11]

Accordingly,
    the appeal is dismissed. In the circumstances, no costs are ordered.


