November 19th, 2010
As I’ve previously discussed, if you’re not prepared to proceed to trial and ICBC opposes an adjournment it’s necessary to apply for a Court order under Rule 12-1(9) of the BC Supreme Court Civil Rules. Reasons for judgment were released earlier this month by the BC Supreme Court, Kamloops Registry, dealing with such an application.
In today’s case (Allan v. Houston) the Plaintiff was involved in a 2007 motor vehicle collision. His injuries apparently included a fracture at the L4 level of his spine and a traumatic brain injury. His case was set for trial in December 2010. His treating specialists were apparently unable to “complete assessments of the plaintiff such that a court would be provided with an opinion with respect to the injuries sustained and the prognosis that the plaintiff faces“. In addition to this, the Plaintiff switched lawyers shortly before the scheduled trial. The new lawyer was unavailable for the previously scheduled trial. He sought an adjournment but ICBC refused. On application the BC Supreme Court ordered that the trial be adjourned. Mr. Justice Dley provided the following reasons:
 The defendant resists the application for an adjournment on the basis that this matter has been set for trial for some time, that the incident occurred almost three years ago, and, as a result of the heavily contested liability issues, that memories may fade as time continues on.
 Counsel for the plaintiff emphasizes two factors:
that there has been a change of counsel, and that the plaintiff’s new counsel would be unavailable for trial; and
that there is the practical aspect of securing further medical information to ensure that the court is in a position to properly assess the damages, if in fact liability has been proven.
 There is also a third aspect that needs to be considered, and that is the issue of the second motor vehicle accident. The injuries sustained, it is alleged, in the second accident aggravated those in the first. In order to ensure that justice can be done for all parties it would be beneficial to have the same trier of fact dealing with both accidents at the same time, as it is anticipated and suggested by counsel for the plaintiff.
 In order for there to be a fair trial, the only rational outcome of this application is to grant the adjournment: first, to ensure that plaintiff’s counsel is available; second, to ensure that the court has the benefit of the necessary medical information; and thirdly, to ensure that all efficiencies are taken into account to have both accidents dealt with at the same time.
The Court went on to award the Plaintiff costs. In doing so Mr. Justice Dley reminded defence counsel that “this was an application that should have been given far more serious consideration than what it was by the defence. There are certain courtesies that should be given during the course of any litigation: one is the availability of counsel and two is the practical aspect of proceeding to trial with all of the necessary information“.